Document 78

Case 21-770, Document 78, 06/07/2021, 3115458, Page1 of 1 MANDATE 21-58-cr (L), 21-770-cr United States v. Maxwell United States Court of Appeals FOR THE SECOND CIRCUIT At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 27th day of April, two thousand twenty-one. PRESENT: PIERRE N. LEVAL, RAYMOND J. LOHIER, JR., RICHARD J. SULLIVAN, Circuit Judges. United States of America, Appellee, v. 21-58-cr (L) 21-770-cr Ghislain Maxwell, AKA Sealed Defendant 1, Defendant-Appellant. Defendant-Appellant Ghislaine Maxwell appeals from orders of the District Court entered December 28, 2020 and March 22, 2021, which denied her renewed requests for bail pending trial. See Dkts. 1, 20. Upon due consideration, it is hereby ORDERED that the District Court's orders are AFFIRMED and that Appellant's motion for bail, or in the alternative, temporary pretrial release pursuant to 18 U.S.C. § 3142(i), Dkt. 39, is DENIED. During oral argument, counsel for Appellant expressed concern that Appellant was improperly being deprived of sleep while incarcerated. To the extent Appellant seeks relief specific to her sleeping conditions, such request should be addressed to the District Court. FOR THE COURT: Catherine O'Hagan Wolfe, Clerk of Court A True Copy Catherine O'Hagan Wolfe, Clerk United States Court of Appeals, Second Circuit Catherine O'Hagan Wolfe MANDATE ISSUED ON 06/07/2021 DOJ-OGR-00001466 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 78 Filed 12/01/20 Page 1 of 2 U.S. Department of Justice United States Attorney Southern District of New York The Silvio J. Mollo Building One Saint Andrew's Plaza New York, New York 10007 December 1, 2020 BY ECF The Honorable Alison J. Nathan United States District Court Southern District of New York United States Courthouse 40 Foley Square New York, New York 10007 Re: United States v. Ghislaine Maxwell, 20 Cr. 330 (AJN) Dear Judge Nathan: The parties jointly submit this letter in response to the Court's November 24, 2020 order directing the parties to meet and confer regarding the defendant's request that the warden of the Metropolitan Detention Center ("MDC") report directly to the Court and counsel on the defendant's conditions of detention. (Dkt. No. 76). Over the past week, the Government has spoken with MDC legal counsel regarding the defendant's conditions of confinement and has tried to gather additional information regarding the concerns raised by the defendant, which the Government has shared with defense counsel. The Government has also conferred with defense counsel three times regarding the same, as well as the defense's request relating to MDC Warden Heriberto Tellez. The parties have been unable to reach agreement. Our respective positions follow. The Government respectfully submits that the Court should allow MDC legal counsel to respond directly in writing to the Court and defense counsel regarding the concerns defense counsel has raised relating to the defendant's conditions of confinement. The Government understands that MDC legal counsel is prepared to submit a letter by this Friday, December 4, 2020. Such a letter is the appropriate next step at this time, as it will allow the Court to hear directly from MDC legal counsel who can address the defendant's conditions of confinement. The letter will allow the Court to ascertain whether further inquiry, including a personal appearance by the Warden or other MDC personnel, is necessary. Moreover, the Government does not understand the concerns raised by the defense to implicate the defendant's access to legal materials or her ability to communicate with her counsel. As noted in the Government's letter dated November 23, 2020, the defendant continues to have more time to review her discovery than any other inmate at the MDC. The defendant also has as much, if not more, time as any other MDC inmate to communicate with her attorneys. (Dkt. No. 74). The defense disagrees. As communicated to the Government, the defense's position is as follows: Warden Heriberto Tellez should appear before the Court to directly address concerns regarding Ms. Maxwell's conditions of confinement, which specifically target her. On October 29, 2020, the defense emailed a letter to Warden Tellez detailing the onerous and restrictive conditions, including but not limited to concerns regarding the supplemental camera; excessive --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 78 Filed 12/02/20 Page 1 of 2 U.S. Department of Justice United States Attorney Southern District of New York The Silvio J. Mollo Building One Saint Andrew's Plaza New York, New York 10007 December 1, 2020 BY ECF The Honorable Alison J. Nathan United States District Court Southern District of New York United States Courthouse 40 Foley Square New York, New York 10007 Re: United States v. Ghislaine Maxwell, 20 Cr. 330 (AJN) Dear Judge Nathan: The parties jointly submit this letter in response to the Court's November 24, 2020 order directing the parties to meet and confer regarding the defendant's request that the warden of the Metropolitan Detention Center ("MDC") report directly to the Court and counsel on the defendant's conditions of detention. (Dkt. No. 76). Over the past week, the Government has spoken with MDC legal counsel regarding the defendant's conditions of confinement and has tried to gather additional information regarding the concerns raised by the defendant, which the Government has shared with defense counsel. The Government has also conferred with defense counsel three times regarding the same, as well as the defense's request relating to MDC Warden Heriberto Tellez. The parties have been unable to reach agreement. Our respective positions follow. The Government respectfully submits that the Court should allow MDC legal counsel to respond directly in writing to the Court and defense counsel regarding the concerns defense counsel has raised relating to the defendant's conditions of confinement. The Government understands that MDC legal counsel is prepared to submit a letter by this Friday, December 4, 2020. Such a letter is the appropriate next step at this time, as it will allow the Court to hear directly from MDC legal counsel who can address the defendant's conditions of confinement. The letter will allow the Court to ascertain whether further inquiry, including a personal appearance by the Warden or other MDC personnel, is necessary. Moreover, the Government does not understand the concerns raised by the defense to implicate the defendant's access to legal materials or her ability to communicate with her counsel. As noted in the Government's letter dated November 23, 2020, the defendant continues to have more time to review her discovery than any other inmate at the MDC. The defendant also has as much, if not more, time as any other MDC inmate to communicate with her attorneys. (Dkt. No. 74). The defense disagrees. As communicated to the Government, the defense's position is as follows: Warden Heriberto Tellez should appear before the Court to directly address concerns regarding Ms. Maxwell's conditions of confinement, which specifically target her. On October 29, 2020, the defense emailed a letter to Warden Tellez detailing the onerous and restrictive conditions, including but not limited to concerns regarding the supplemental camera; excessive DOJ-OGR-00001844 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page1 of 217 22-1426 United States Court of Appeals For the Second Circuit Docket No. 22-1426 UNITED STATES OF AMERICA, Appellee, -v.- GHISLAINE MAXWELL, also known as Sealed Defendant 1, Defendant-Appellant. On Appeal from the United States District Court for the Southern District of New York SUPPLEMENTAL APPENDIX VOLUME II OF II (Pages SA-257 to SA-471) DAMIAN WILLIAMS, United States Attorney for the Southern District of New York, Attorney for the United States of America. One St. Andrew's Plaza New York, New York 10007 (212) 637-2200 DOJ-OGR-00021431 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 78 Filed 12/01/20 Page 2 of 2 Page 2 searching (e.g., weekly body scan, 15-minute interval flashlight checks at night, and open-mouth inspection) despite being surveilled 24/7 by a dedicated three-guard security detail and two cameras; and the reason she is not being moved to the day room, which we understood was the original plan (and would reduce searching). Receipt of the letter was acknowledged, but to date there has been no response and little, if any, redress to the most serious conditions. Upon information and belief, decisions concerning Ms. Maxwell's specialized detention are made by Warden Tellez, or from others outside the MDC. A report from the MDC Legal Department would provide second-hand information. Accordingly, Warden Tellez should be directed to provide a first-hand accounting to the Court and counsel why Ms. Maxwell is being detained under such individualized conditions. Your consideration is greatly appreciated. Respectfully submitted, AUDREY STRAUSS Acting United States Attorney By: s/ Maurene Comey / Alison Moe / Lara Pomerantz Assistant United States Attorneys Southern District of New York Tel: (212) 637-2324 Cc: All Counsel of Record (By ECF) --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page2 of 217 TABLE OF CONTENTS PAGE OPR Report (Nov. 2020) (Dkt. 204-3)............................SA-1 Opinion & Order of the District Court (Feb. 24, 2022) (Dkt. 620).....SA-349 Sentencing Transcript (June 28, 2022)..............................SA-370 GX-422............................................................SA-471 DOJ-OGR-00021432 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page3 of 217 SA-257 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 257 of 348 about the NPA because it was "confidential" and because the case was under "investigation and leading towards" the filing of charges. Villafaña recalled mentioning the conversation to her supervisors and the case agents because she "thought he was somebody who could be of assistance to us and . . . could perhaps persuade Alex Acosta that this was a case that was meritorious and should be prosecuted." Nevertheless, when OPR asked Villafaña why she did not inform Edwards of the same information that the FBI and she had provided to Wild in October 2007 and January 2008, Villafaña explained that she felt "prohibited": At the time that I spoke with him, you know, there had been all of this . . . letter writing or all of these concerns and instructions that I had been given by Alex [Acosta] and Jeff [Sloman] not to disclose things further and not to have any involvement in victim notification, and so I felt like that prohibited me from telling him about the existence of the NPA. X. JUNE 2008: EFFORTS TO NOTIFY VICTIMS ABOUT THE JUNE 30, 2008 PLEA HEARING The Epstein team's appeals through the Department ended on June 23, 2008, when the Deputy Attorney General determined that "federal prosecution of this case is appropriate" and Epstein's allegations of prosecutorial misconduct did not rise to a level that would undermine such a decision. Immediately thereafter, at Sloman's instruction, Villafaña notified Lefkowitz that Epstein had until "the close of business on Monday, June 30, 2008, to comply with the terms and conditions of the agreement . . . including entry of a guilty plea, sentencing, and surrendering to begin his sentence of imprisonment." That same day, Villafaña made plans to file charges on July 1, 2008, if Epstein did not enter his guilty plea by the June 30 deadline. On Friday, June 27, 2008, Villafaña received a copy of the proposed state plea agreement and learned that the plea hearing was scheduled for 8:30 a.m. on Monday, June 30, 2008. Also on that Friday, Villafaña submitted to Sloman and Criminal Division Chief Senior a "final final" proposed federal indictment of Epstein. Villafaña and the FBI finalized the government's victim list that they intended to disclose, for § 2255 purposes, to Epstein after the plea and, at Sloman's instruction, Villafaña contacted PBPD Chief Reiter to ask him to notify the victims of the plea hearing. Villafaña told Sloman that Chief Reiter could contact the victims from the state case, and tell them about the plea.351 On Saturday, June 28, 2008, Villafaña emailed Sloman to inform him that PBPD Chief Reiter "is going to notify victims about the plea."352 351 Villafaña further stated, "I requested permission to make oral notifications to the victims regarding the upcoming change of plea, but the Office decided that victim notification could only come from a state investigator, and Jeff Sloman asked PBPD Chief Reiter to assist." 352 Sloman replied, "Good." 231 DOJ-OGR-00021433 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page78 of 217 SA-332 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 332 of 348 proposed agreements with the State Attorney's Office prior to entering into those agreements. 7. The United States shall provide Epstein's attorneys with a list of individuals whom it has identified as victims, as defined in 18 U.S.C. § 2255, after Epstein has signed this agreement and been sentenced. Upon the execution of this agreement, the United States, in consultation with and subject to the good faith approval of Epstein's counsel, shall select an attorney representative for these persons, who shall be paid for by Epstein. Epstein's counsel may contact the identified individuals through that representative. 8. If any of the individuals referred to in paragraph (7), supra, elects to file suit pursuant to 18 U.S.C. § 2255, Epstein will not contest the jurisdiction of the United States District Court for the Southern District of Florida over his person and/or the subject matter, and Epstein waives his right to contest liability and also waives his right to contest damages up to an amount as agreed to between the identified individual and Epstein, so long as the identified individual elects to proceed exclusively under 18 U.S.C. § 2255, and agrees to waive any other claim for damages, whether pursuant to state, federal, or common law. Notwithstanding this waiver, as to those individuals whose names appear on the list provided by the United States, Epstein's signature on this agreement, his waivers and failures to contest liability and such damages in any suit are not to be construed as an admission of any criminal or civil liability. 9. Epstein's signature on this agreement also is not to be construed as an admission of civil or criminal liability or a waiver of any jurisdictional or other defense as to any person whose name does not appear on the list provided by the United States. 10. Except as to those individuals who elect to proceed exclusively under 18 U.S.C. § 2255, as set forth in paragraph (8), supra, neither Epstein's signature on this agreement, nor its terms, nor any resulting waivers or settlements by Epstein are to be construed as admissions or evidence of civil or criminal liability or a waiver of any jurisdictional or other defense as to any person, whether or not her name appears on the list provided by the United States. 11. Epstein shall use his best efforts to enter his guilty plea and be Page 4 of 7 DOJ-OGR-00021508 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page5 of 217 SA-259 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 259 of 348 [M]y expectation of what was going [to] happen at the plea was that it would be like a federal plea where there would be a factual proffer that was read, and where the judge would ask if there were any victims present who wanted to be heard, and that at that point if Brad Edwards wanted to address the court or if his clients wanted to address the court, they would be given the opportunity to do so.357 Sloman told OPR that he did not recall directing Villafaña to contact anyone about the plea hearing or directing her specifically not to contact anyone about it. Acosta told OPR that he believed the state would notify the victims of the "all-encompassing plea" resolving the federal case "and [the victims would] have an opportunity to speak up at the state court hearing." Nevertheless, Acosta did not know whether the state victims overlapped with the federal victims or whether the USAO "shared that list with them." Villafaña told OPR that she and Acosta "understood that the state would notify the state victims" but that neither of them were aware "that the state only believed they had one victim."358 Villafaña told OPR that there was "very little" communication between the USAO and the State Attorney's Office, and although she discussed a factual proffer with the State Attorney's Office and "the fact that . . . the federal investigation had identified additional victims," she did not recall discussing "who the specific people were that they considered victims in the state case."359 Sloman told OPR that the "public perception . . . that we tried to hide the fact of the results of this resolution from the victims" was incorrect. He explained: [E]ven though we didn't have a legal obligation, I felt that the victims were going to be notified and the state was going . . . to fulfill that obligation, and even as another failsafe, [the victims] would be notified of . . . the restitution mechanism that we had set up on their behalf. Sloman acknowledged that although neither the NPA terms nor the CVRA prevented the USAO from exercising its discretion to notify the victims, it was [of] concern that this was going to break down and . . . result in us prosecuting Epstein and that the victims were going to be witnesses and if we provided a victim notification indicating, hey, you're going to get $150,000, that's . . . going to be instant impeachment for the defense. 357 Assistant State Attorney Belohlavek told OPR that federal victims who were not a party to the state case would not have been able to simply appear at the state plea hearing and participate in the proceedings. Rather, such a presentation would have required coordination between the USAO and the State Attorney's Office and additional investigation of the victims' allegations and proposed statements by the State Attorney's Office. 358 In an email a few months earlier, Villafaña noted, "The state indictment [for solicitation of adult prostitution], the other is related to two girls. One of those girls is included in the federal [charging document], the other is not." 359 As noted in Chapter Two, Villafaña had stopped communicating with the State Attorney's Office regarding the state case following Epstein's defense team's objections to those communications. 233 DOJ-OGR-00021435 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page6 of 217 SA-260 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 260 of 348 When asked why the USAO did not simply notify the victims of the change of plea hearing, Sloman responded that he "was more focused on the restitution provisions. I didn't get the sense that the victims were overly interested in showing up . . . at the change of plea." Also, in late June, Villafaña drafted a victim notification letter concerning the June 30, 2008 plea.360 Villafaña told OPR that, because "Mr. Acosta had agreed in December 2007 that we would not provide written notice of the state change of plea, the written victim notifications were prepared to be sent immediately following Epstein's guilty plea."361 As she did with prior draft victim notification letters, Villafaña provided the draft to the defense for comments.362 Although Epstein's plea hearing was set for June 30, 2008, Villafaña took steps to facilitate the filing of federal charges on July 1, 2008, in the event he did not plead guilty in state court. OPR reviewed voluminous Epstein-related files that the State Attorney's Office made available online, but OPR was unable to locate any document establishing that before the hearing date, the state informed victims of the June 30, 2008 plea. On March 12, 2008, the State Attorney's Office issued trial subpoenas to three victims and one non-law enforcement witness commanding the individuals to "remain on call" during the week of July 8, 2008. However, the Palm Beach County Sheriff was unable to serve one of the victims in person because the victim was "away [at] college." XI. JUNE 30, 2008: EPSTEIN ENTERS HIS GUILTY PLEAS IN A STATE COURT HEARING AT WHICH NO VICTIMS ARE PRESENT On June 30, 2008, Epstein appeared in state court in West Palm Beach, with his attorney Jack Goldberger, and pled guilty to an information charging him with procuring a person under 18 for prostitution, as well as the indictment charging him with felony solicitation of prostitution. The information charged that between August 1, 2004, and October 9, 2005, Epstein "did knowingly and unlawfully procure for prostitution, or caused to be prostituted, [REDACTED], a person under the age of 18 years," and referred to no other victims. The indictment did not identify any victims and alleged only that Epstein engaged in the charged conduct on three occasions between August 1, 2004, and October 31, 2005. Although the charges did not indicate whether they applied to multiple victims, during the hearing, Assistant State Attorney Belohlavek informed the court that "[t]here's several" victims. When the court asked Belohlavek whether "the victims in both these cases [were] in agreement with the terms of this plea," Belohlavek replied, "I have spoken to several myself and I have spoken to counsel, through counsel as to the other victim, and I believe," 360 Sloman forwarded the draft victim notification letter to Acosta, who responded with his own edited version stating, "What do you think?" Villafaña edited it further. 361 The letter began with the statement, "On June 30, 2008, Jeffrey Epstein . . . entered a plea of guilty." A week after Epstein's state guilty plea, Villafaña notified Acosta, Sloman, and other supervisors that "[Epstein's local attorney] Jack Goldberger is back in town today, so I am hoping that we will finalize the last piece of our agreement—the victim list and Notification. If I face resistance on that front, I will let you know." 362 According to Villafaña, either Acosta or Sloman made the decision to send the notifications following the state plea and to share the draft notification letters with the defense. 234 DOJ-OGR-00021436 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page7 of 217 SA-261 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 261 of 348 yes." The court also asked Belohlavek if the juvenile victim's parents or guardian agreed with the plea, and Belohlavek stated that because the victim was no longer under age 18, Belohlavek spoke with the victim's counsel, who agreed with the plea agreement.363 Both Villafaña and the FBI case agent were present in the courtroom gallery to observe the plea hearing. Later that day, Villafaña met with Goldberger and gave him the list of 31 individuals the government was prepared to name as victims and to whom the § 2255 provision applied. In her 2015 CVRA case declaration, Wild stated that, "I did not have any reason to attend that hearing because no one had told me that this guilty plea was related to the FBI's investigation of Epstein's abuse of me." She stated that she "would have attended and tried to object to the judge and prevent that plea from going forward," had she known that the state plea "had some connection to blocking the prosecution of my case." Similarly, CVRA petitioner Jane Doe #2 stated that "no one notified me that [Epstein's] plea had anything to do with my case against him." An attorney who represented several victims, including one whom the state had subpoenaed for the potential July trial, told OPR that he was present in court on June 30, 2008, in order to serve a complaint upon Epstein in connection with a civil lawsuit brought on behalf of one of his clients. The USAO had not informed him about the plea hearing.364 Moreover, the attorney informed OPR that, although one of the victims he represented had been interviewed in the PBPD's investigation and had been deposed by Epstein's attorneys in the state case (with the Assistant State Attorney present), he did not recall receiving any notice of the June 30, 2008 plea hearing from the State Attorney's Office.365 Similarly, another of the victims the state had subpoenaed for the July trial told OPR through her attorney that she received subpoenas from the State Attorney's Office, but she was not invited to or aware of the state plea hearing. Belohlavek told OPR that she did not recall whether she contacted any of the girls to appear at the hearing, and she noted that given the charge of solicitation of prostitution, they may not have "technically" been victims for purposes of notice under Florida law but, rather, witnesses. On July 24, 2008, the State Attorney's Office sent letters to two victims stating that the case was closed on June 26, 2008 (although the plea occurred on June 30, 2008) and listed Epstein's sentence. The letters did not mention the NPA or the federal investigation. XII. SIGNIFICANT POST-PLEA DEVELOPMENTS A. Immediately After Epstein's State Guilty Pleas, Villafaña Notifies Some Victims' Attorneys Villafaña's contemporaneous notes show that immediately after Epstein's June 30, 2008 guilty pleas, she attempted to reach by telephone five attorneys representing various victims in 363 Villafaña, who was present in court and heard Belohlavek's representation, told OPR that she had no information as to whether or how the state had notified the victims about the plea hearing. 364 Villafaña did contact this attorney's law partner later that day. 365 When interviewed by OPR in 2020, this same attorney indicated that he was surprised to learn that despite the fact that his client was a minor at the time Epstein victimized her, she was not the minor victim that the state identified in the information charging Epstein. 235 DOJ-OGR-00021437 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page10 of 217 SA-264 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 264 of 348 18 U.S.C. § 2255 and again listing the 32 "individuals whom the United States was prepared to name as victims of an enumerated offense."371 The same day, Villafaña sent Goldberger a second letter, noting that the defense would receive copies of all victim notifications on a rolling basis. Villafaña informed her managers that the FBI case agents would reach out by telephone to the listed victims who were unrepresented, to inform them that the case was resolved and to confirm their addresses for notification by mail. With regard to the content of the telephone calls, Villafaña proposed the following language to the case agents: We are calling to inform you about the resolution of the Epstein investigation and to thank you for your help. Mr. Epstein pled guilty to one child sex offense that will require him to register as a sex offender for life and received a sentence of 18 months imprisonment followed by one year of home confinement. Mr. Epstein also made a concession regarding the payment of restitution. All of these terms are set out in a letter that AUSA Villafaña is going to send out. Do you have a lawyer? Get name or address. If not[,] where do you want [the] letter sent? If you have questions when you receive the letter, please understand that we cannot provide legal advice but the lawyers at the following victim rights organizations are able to help you at no cost to you. (Provide names and phone numbers) Also ask about counseling and let them know that counseling is still available even though the investigation is closed. On July 21, 2008, Villafaña sent the letter to the 11 unrepresented victims whose addresses the FBI had by that time confirmed. Villafaña provided Epstein's defense counsel with a copy of the letter sent to each victim, directly or though counsel (with the mailing addresses redacted). D. July - August 2008: The FBI Sends the Victim Notification Letter to Victims Residing Outside of the United States While attempting to locate and contact the unrepresented victims, the FBI obtained contact information for two victims residing outside of the United States. On July 23 and August 8, 2008, respectively, the FBI Victim Specialist transmitted an automated VNS form notification letter to each victim through the FBI representative at the U.S diplomatic mission for each country. This 371 A month later, in an August 18, 2008 letter to the USAO, the defense sought to limit the government's victim list to those victims who were identified before the September 24, 2007 execution of the NPA. Villafaña also raised with Acosta, Sloman, and other supervisors the question whether the USAO had developed sufficient evidence to include new victims it had identified since creation of the July 2008 list and whether Jane Doe #2, who had previously given a statement in support of Epstein, should be added back to the list. Ultimately, Villafaña sent the defense a letter confirming that the government's July 10, 2008 victim list was "the final list." 238 DOJ-OGR-00021440 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page11 of 217 SA-265 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 265 of 348 letter was substantially identical to the previous FBI victim notification letter the FBI had sent to victims (in 2006, 2007, and 2008) in that it identified each recipient as "a possible victim of a federal crime" and listed her eight CVRA rights. The letter did not indicate that Epstein had pled guilty in state court on June 30, 2008, or that the USAO had resolved its investigation by deferring federal prosecution in favor of the state plea. Rather, like the previous FBI VNS-generated letter, the letter requested the victims' "assistance and cooperation while we are investigating the case." For each of the two victims residing outside of the United States, Villafaña also drafted a notification letter concerning the June 30, 2008 plea and the 18 U.S.C. § 2255 process, which were to be hand delivered along with the FBI's letters. However, FBI records do not reflect whether the USAO's letter was delivered to the two victims. E. August - September 2008: The Federal Court Orders the USAO to Disclose the NPA to Victims, and the USAO Sends a Revised Victim Notification Letter On August 1, 2008, the petitioners in the CVRA litigation filed a motion seeking access to the NPA. The USAO opposed the motion by relying on the confidentiality portion of the NPA.372 On August 21, 2008, the court ordered the government to provide the petitioners with a copy of the NPA subject to a protective order. In addition, the court ordered the government to produce the NPA to other identified victims upon request: (d) If any individuals who have been identified by the USAO as victims of Epstein and/or any attorney(s) for those individuals request the opportunity to review the [NPA], then the USAO shall produce the [NPA] to those individuals, so long as those individuals also agree that they shall not disclose the [NPA] or its terms to any third party absent further court order, following notice to and an opportunity for Epstein's counsel to be heard[.] In September 2008, the USAO sent a revised notification letter to victims, and attorneys for represented victims, concerning Epstein's state court guilty plea and his agreement to not contest liability in victim civil suits brought under 18 U.S.C. § 2255.374 The September letter appeared to address concerns raised by Epstein attorney Lefkowitz that the government's earlier notification letter referenced language concerning 18 U.S.C. § 2255 that the government had proposed in Acosta's December 19, 2007 letter to Epstein attorney Sanchez, but that the defense had not accepted.375 As a result of the defense objection, Villafaña determined that she was 372 Pursuant to paragraph 13 of the NPA, Villafaña made Epstein's attorneys aware of the petitioners' request for the NPA. 373 Doe, Order to Compel Production and Protective Order at 1-2 (Aug. 21, 2008). 374 The USAO also sent a notification letter to additional victims who had not received a notification letter in July. 375 This issue is discussed more fully in Chapter Two. 239 DOJ-OGR-00021441 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page12 of 217 SA-266 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 266 of 348 obligated to amend her prior letter to victims to correct the reference to the December letter.376 Accordingly, the September letter contained no information about the parties' intent in implementing 18 U.S.C. § 2255, but merely referred to the NPA language concerning Epstein's waiver of his right to contest liability under the provision. In addition, the September letter described the appointment of a special master, the special master's selection of an attorney to represent the victims in their 18 U.S.C. § 2255 litigation against Epstein, and Epstein's agreement to pay the attorney representative's fees arising out of such litigation. The letter also clarified that Epstein's agreement to pay for attorneys' fees did not extend to contested litigation against him. The government also intended for the letter to comply with the court's order concerning providing victims with copies of the NPA. The initial draft included a paragraph advising the victims that they could receive a copy of the NPA: In addition, a judge has ordered that the United States make available to any designated victim (and/or her attorney) a copy of the actual agreement between Mr. Epstein and the United States, so long as the victim (and/or her attorney) reviews, signs, and agrees to be bound by a Protective Order entered by the Court. If [the victim] would like to review the Agreement, please let me know, and I will forward a copy of the Protective Order for her signature. The government shared draft versions of the September letter with Epstein's counsel and responded to criticism of the content of the proposed letter. For example, in response to the above language regarding the August 21, 2008 court order in the CVRA litigation, the defense argued that there was "no court order requiring the government to provide the alleged 'victims' with notice that the [NPA] is available to them upon request and doing so is in conflict with the confidentiality provisions of the [NPA]." In response, and in consultation with USAO management, Villafaña revised the paragraph as follows: In addition, there has been litigation between the United States and two other victims regarding the disclosure of the entire agreement between the United States and Mr. Epstein. [The attorney selected by the special master] can provide further guidance on this issue, or if you select another attorney to represent you, that attorney can review the Court's order in the [CVRA litigation]. On September 18, 2009, a state court judge unsealed the copy of the NPA that had been filed in the state case.377 376 In the letter, Villafaña expressed frustration with defense counsels' claim relative to the December 19, 2007 letter that was included in the July 2008 notification letter, noting that the July 2008 letter had been approved by defense counsel before being sent. 377 See Susan Spencer-Wendel, "Epstein's Secret Pact With Fed Reveals 'Highly Unusual' Terms," Palm Beach Post, Sept. 19, 2009. 240 DOJ-OGR-00021442 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page108 of 217 SA-362 Case 1:20-cr-00330-AJN Document 620 Filed 02/25/22 Page 14 of 21 Defendant's ultimate guilt. Trial Tr. at 3066; see also U.S. ex rel. Owen v. McMann, 435 F.2d 813, 818 (2d Cir. 1970). Last, the Defendant argues—in a single sentence of her reply brief—that if Rule 606 does bar consideration of Juror 50's statements about the second juror, then the rule "violates Ms. Maxwell's constitutional rights to due process and to confrontation as applied to her." Maxwell Reply at 23. The Court rejects this argument. The Confrontation Clause guarantees a criminal defendant the right "to be confronted with the witnesses against him." U.S. Const., amend. VI. The Defendant's right to confrontation is not implicated here because Juror 50 is not a "witness[] against" the Defendant but was instead a factfinder in her trial. Simply put, Juror 50's testimony at the hearing will be proffered to determine whether Juror 50 has engaged in any misconduct warranting a new trial, not to accuse the Defendant of any crime. Cf. Crawford v. Washington, 541 U.S. 36, 43 (2004) (describing the Confrontation Clause as a "right to confront one's accusers" (emphasis added)). Even if the Confrontation Clause were implicated, Rule 606's prohibition on juror affidavits to impeach a verdict is a reasonable limitation, subject to other exceptions not at issue here, on the evidence that a defendant may muster, a limitation with a long historical pedigree. See Pena-Rodriguez, 137 S. Ct. at 863 (tracing Rule 606 to traditional English common law); Crawford, 541 U.S. at 54 (explaining that the Confrontation Clause "is most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding"). Next, the Defendant's due-process claim is squarely foreclosed by controlling precedent. The Supreme Court in Tanner v. United States rejected a constitutional challenge to Rule 606, explaining that a criminal defendant's right to an impartial jury is "protected by several aspects of the trial process," including questions asked in voir dire; observations in court made by the 14 DOJ-OGR-00021538 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page15 of 217 SA-269 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 269 of 348 letters to victims sent after the NPA was signed were not misleading in stating that the matter was "under investigation" because the government continued to investigate given its uncertainty that Epstein would plead guilty; and (3) Villafaña contacted the petitioners' attorney prior to Epstein's state plea to advise him of the hearing. Nonetheless, Villafaña told OPR that, while there were valid reasons for the government's position that CVRA rights do not apply pre-charge, "[T]his is a case where I felt we should have done more than what was legally required. I was obviously prepared to spend as much time, energy and effort necessary to meet with each and every [victim]." Over the course of the litigation, the district court made various rulings interpreting the provisions of the CVRA, including the court's key conclusion that victim CVRA rights "attach before the Government brings formal charges against a defendant." The court also held that (1) "the CVRA authorizes the rescission or 'reopening' of a prosecutorial agreement, including a non-prosecution agreement, reached in violation of a prosecutor's conferral obligations under the statute"; (2) the CVRA authorizes the setting aside of pre-charge prosecutorial agreements"; (3) the CVRA's "reasonable right to confer" "extends to the pre-charge state of criminal investigations and proceedings"; (4) the alleged federal sex crimes committed by Epstein render the Doe petitioners "victims" under the CVRA; and (5) "questions pertaining to [the] equitable defense[s] are properly left for resolution after development of a full evidentiary record." On February 21, 2019, the district court granted the petitioners' Motion for Partial Summary Judgment, ruling that "once the Government failed to advise the victims about its intention to enter into the NPA, a violation of the CVRA occurred." The government did not dispute the fact that it did not confer with the petitioners prior to signing the NPA, and the court concluded that "[a]t a bare minimum, the CVRA required the Government to inform Petitioners that it intended to enter into an agreement not to prosecute Epstein." The court found that the post-NPA letters the government sent to victims describing the investigation as ongoing "misled the victims to believe that federal prosecution was still a possibility" and that "[i]t was a material omission for the Government to suggest to the victims that they have patience relative to an investigation about which it had already bound itself not to prosecute."386 The court relied on Dean and BP Products to support its holding and noted that the government's action with respect to the NPA was especially troubling because, unlike a plea agreement for which the victims could voice objection at a sentencing hearing, "[o]nce an NPA is entered into without notice, the matter is closed and the victims have no opportunity to be heard regarding any aspect of the case." The court also highlighted the inequity of the USAO's failure to communicate with the victims while it simultaneously engaged in "lengthy negotiations" with Epstein's counsel and assured the defense that the NPA would not be "made public or filed with the Court." Although the USAO defended its actions by citing the 2005 Guidelines for the Department's position that CVRA rights do not attach until after a defendant is charged, the court was "not persuaded that the [G]uidelines were the basis for the Government's decision to withhold information about the NPA from the victims." The court found that the government's reliance on 386 The court did not resolve the factual question as to whether the victims were given adequate notice of Epstein's state court plea hearing. 243 DOJ-OGR-00021445 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page18 of 217 SA-272 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 272 of 348 [Page Intentionally Left Blank] 246 DOJ-OGR-00021448 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page19 of 217 SA-273 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 273 of 348 CHAPTER THREE PART TWO: APPLICABLE STANDARDS I. STATUTORY PROVISIONS Pertinent sections of the CVRA and the VRRA, applicable during the relevant time period, are set forth below. A. The CVRA, 18 U.S.C. § 3771 (a) Rights of Crime Victims. —A crime victim has the following rights: (1) The right to be reasonably protected from the accused. (2) The right to reasonable, accurate, and timely notice of any public court proceeding, or any parole proceeding, involving the crime or of any release or escape of the accused. (3) The right not to be excluded from any such public court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding. (4) The right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding. (5) The reasonable right to confer with the attorney for the Government in the case. (6) The right to full and timely restitution as provided in law. (7) The right to proceedings free from unreasonable delay. (8) The right to be treated with fairness and with respect for the victim's dignity and privacy. ... (c) Best Efforts To Accord Rights.— (1) Government.—Officers and employees of the Department of Justice . . . shall make their best efforts to see that crime victims are notified of, and accorded, the rights described in subsection (a). ... (e) Definitions. ... (2) Crime victim.— (A) In general. —The term "crime victim" means a person directly and proximately harmed as a result of the commission of a Federal offense or an offense in the District of Columbia. 247 DOJ-OGR-00021449 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page114 of 217 SA-368 Case 1:20-cr-00330-AJN Document 620 Filed 02/25/22 Page 20 of 21 the Defendant's motion for a new trial. Cf. Carbon Inv. Partners, LLC v. Bressler, No. 20-cv-3617 (ER), 2020 WL 5441497, at *2 (S.D.N.Y. Sept. 10, 2020). Accordingly, a high presumption of access attaches. For the reasons stated in this Court's prior order, this presumption of access is not outweighed by the possibility of media interest in the document. See Dkt. No. 596 at 3. Nor is sealing necessary to safeguard a possible hearing for the reasons stated above. Finally, any privacy interest Juror 50 may have had in his questionnaire, see Press-Enterprise Co. v. Superior Ct. of Cal., 464 U.S. 501, 511-12 (1984), has at least been greatly diminished, if not extinguished, since his public comments. The Court further notes that prospective jurors had the opportunity to request that particular questionnaire answers remain confidential; Juror 50 did not make any such request. Accordingly, Juror 50's privacy interest in the questionnaire is now outweighed by the presumption of access. Lugosch, 435 F.3d at 119-20. The Defendant is accordingly ORDERED to docket Exhibit 1 to her motion for a new trial, Juror 50's completed questionnaire. V. Conclusion For the reasons stated above, the Court will hold a hearing regarding Juror 50's answers to Questions 25 and 48 of the questionnaire. The public proceeding will take place on March 8, 2022, at 10:00 a.m. Juror 50 is hereby ORDERED to appear in Courtroom 906 of the Thurgood Marshall United States Courthouse, 40 Centre Street, New York, New York at that date and time to give testimony under oath in response to the Court's questions. Counsel for the Defendant and the Government are ORDERED to submit via email proposed questions in accordance with this Opinion & Order on or before March 1, 2022. SO ORDERED. 20 DOJ-OGR-00021544 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page23 of 217 SA-277 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 277 of 348 1. Responsible Officials. For cases in which charges have been instituted, the responsible official is the U.S. Attorney in whose district the prosecution is pending. 2. Services to Crime Victims ... b. Information, Notice, and Referrals (1) Notice of Rights. Officers and employees of the Department of Justice shall make their best efforts to see that crime victims are notified of the rights enumerated in 18 U.S.C. § 3771(a). (2) Notice of Right To Seek Counsel. The prosecutor shall advise the crime victim that the crime victim can seek the advice of an attorney with respect to the rights described in 18 U.S.C. § 3771(a). (3) Notice of Right To Attend Trial. The responsible official should inform the crime victim about the victim's right to attend the trial regardless of whether the victim intends to make a statement or present any information about the effect of the crime on the victim during sentencing. (4) Notice of Case Events. During the prosecution of a crime, a responsible official shall provide the victim, using VNS (where appropriate), with reasonable notice of— (a) The filing of charges against a suspected offender. (b) The release or escape of an offender or suspected offender. (c) The schedule of court proceedings. (i) The responsible official shall provide the victim with reasonable, accurate, and timely notice of any public court proceeding or parole proceeding that involves the crime against the victim. In the event of an emergency or other last-minute hearing or change in the time or date of a hearing, the responsible official should consider providing notice by telephone or expedited means. This notification requirement relates to postsentencing proceedings as well. (ii) The responsible official shall also give reasonable notice of the scheduling or rescheduling of any other court proceeding that the victim or witness is required or entitled to attend. (d) The acceptance of a plea of guilty or nolo contendere or the rendering of a verdict after trial. 251 DOJ-OGR-00021453 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page24 of 217 SA-278 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 278 of 348 (e) If the offender is convicted, the sentence and conditions of supervised release, if any, that are imposed. ... (6) Referrals. Once charges are filed, the responsible official shall assist the victim in contacting the persons or offices responsible for providing the services and relief [previously identified]. c. Consultation With a Government Attorney (1) In General. A victim has the reasonable right to confer with the attorney for the Government in the case. The victim's right to confer, however, shall not be construed to impair prosecutorial discretion. Federal prosecutors should be available to consult with victims about major case decisions, such as dismissals, release of the accused pending judicial proceedings (when such release is for noninvestigative purposes), plea negotiations, and pretrial diversion. Because victims are not clients, may become adverse to the Government, and may disclose whatever they have learned from consulting with prosecutors, such consultations may be limited to gathering information from victims and conveying only nonsensitive data and public information. Consultations should comply with the prosecutor's obligations under applicable rules of professional conduct. Representatives of the Department should take care to inform victims that neither the Department's advocacy for victims nor any other effort that the Department may make on their behalf constitutes or creates an attorney-client relationship between such victims and the lawyers for the Government. Department personnel should not provide legal advice to victims. (2) Prosecutor Availability. Prosecutors should be reasonably available to consult with victims regarding significant adversities they may suffer as a result of delays in the prosecution of the case and should, at the appropriate time, inform the court of the reasonable concerns that have been conveyed to the prosecutor. (3) Proposed Plea Agreements. Responsible officials should make reasonable efforts to notify identified victims of, and consider victims' views about, prospective plea negotiations. In determining what is reasonable, the responsible official should consider factors relevant to the wisdom and practicality of giving notice and considering views in the context of the particular case, including, but not limited to, the following factors: (a) The impact on public safety and risks to personal safety. (b) The number of victims. (c) Whether time is of the essence in negotiating or entering a proposed plea. 252 DOJ-OGR-00021454 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page25 of 217 SA-279 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 279 of 348 (d) Whether the proposed plea involves confidential information or conditions. (e) Whether there is another need for confidentiality. (f) Whether the victim is a possible witness in the case and the effect that relaying any information may have on the defendant's right to a fair trial. III. FLORIDA RULES OF PROFESSIONAL CONDUCT A. FRPC 4-4.1 - Candor in Dealing with Others FRPC 4-4.1 prohibits a lawyer from knowingly making a false statement of material fact or law to a third person during the course of representation of a client. A comment to this rule explains that "[m]isrepresentations can also occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statements," and "[w]hether a particular statement should be regarded as one of fact can depend on the circumstances." B. FRPC 4-8.4 - Conduct Prejudicial to the Administration of Justice FRPC 4-8.4(c) states that a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. FRPC 4-8.4(d) prohibits a lawyer from engaging in conduct in connection with the practice of law that is prejudicial to the administration of justice. As previously noted, courts have determined that FRPC 4-8.4(d) is not limited to conduct that occurs in a judicial proceeding, but can be applied to "conduct in connection with the practice of law." Frederick, 756 So. 2d at 87; see also Shankman, 41 So. 3d at 172. 253 DOJ-OGR-00021455 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page26 of 217 SA-280 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 280 of 348 [Page Left Intentionally Blank] 254 DOJ-OGR-00021456 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page29 of 217 SA-283 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 283 of 348 and consider victims' views about, prospective plea negotiations.398 The “prosecution stage” began when charges were filed and continued through all post-sentencing legal proceedings.399 At the time the parties signed the NPA in September 2007, few courts had addressed victim standing under the CVRA. Notably, district courts in New York and South Carolina had ruled that standing attached only upon the filing of federal charges.400 Two cases relied upon by the court in its February 2019 opinion—Dean and its underlying district court opinion, BP Products—were decided after the NPA was signed. The CVRA litigation and proposed federal legislation—both pending as of the date of this Report—show that the interpretation of victim standing under the CVRA continues to be a matter of debate.401 In a November 21, 2019 letter to Attorney General William Barr, a Congressional Representative stated that she had recently introduced legislation specifically to “[c]larify that victims of federal crimes have the right to confer with the Government and be informed about key pre-charging developments in a case, such as . . . non-prosecution agreements.”402 The CVRA litigation arising from the Epstein case shows the lack of clarity regarding when CVRA rights apply: the district court concluded that CVRA rights applied pre-charge, but a sharply divided panel of the Eleventh Circuit Court of Appeals came to a contrary conclusion, a decision that has now been vacated while the entire court hears the case en banc. Because the Supreme Court had not addressed the issue of when CVRA rights apply, the lower courts had reached divergent conclusions, and the Department had concluded that CVRA rights did not apply pre-charge, OPR concludes that the subjects' failure to consult with victims before signing the NPA did not constitute professional misconduct because at that time, the CVRA did not clearly and unambiguously require prosecutors to consult with victims before the filing of federal criminal charges.403 398 2005 Guidelines, Art. IV, ¶ B.2.c.(3). Under the 2005 Guidelines, the term “should” means that “the employee is expected to take the action or provide the service described unless there is an appropriate, articulable reason not to do so.” Id., Art. II, ¶ C. 399 Id., Art. IV, ¶ B.1. 400 Searcy v. Paletz, 2007 WL 1875802, at *5 (D.S.C. June 27, 2007) (an inmate is not considered a crime victim for purposes of the CVRA until the government has filed criminal charges); United States v. Turner, 367 F. Supp. 2d 319, 326-27 (E.D.N.Y. 2005) (victims are not entitled to CVRA rights until the government has filed charges, but courts have discretion to take a more inclusive approach); and United States v. Guevara-Toloso, 2005 WL 1210982, at *2 (E.D.N.Y. May 23, 2005) (order sua sponte) (in case involving a federal charge of illegal entry after a felony conviction, the court determined that victims of the predicate state conviction were not victims under the CVRA). 401 See Wild, 955 F.3d at 1220; Courtney Wild Crime Victims’ Rights Reform Act of 2019, H.R. 4729, 116th Cong. (2019). 402 165 Cong. Rec. E1495-01 (2019). 403 Violations of an unambiguous obligation concerning victims’ rights could result in a violation of the rules of professional responsibility. For example, in Attorney Griev. Comm’n of Md. v. Smith, 109 A.3d 1184 (Md. 2015), the Court of Appeals of Maryland concluded that a prosecutor’s failure to provide any notice to the minor victim’s foster family about the resolution of a sex abuse case during the ten months the prosecutor was responsible for the matter was a “consistent failure” amounting to “gross negligence in the discharge of the prosecutorial function” that deprived the victim of his rights under the Maryland Constitution. The court found violations of Maryland Rules of Professional 257 DOJ-OGR-00021459 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page32 of 217 SA-286 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 286 of 348 Acosta told OPR that there was no requirement to notify the victims because the NPA was "not a plea, it's deferring in favor of a state prosecution." Acosta said, "[W]hether or not victims' views were elicited is something I think was the focus of the trial team and not something that I was focused on at least at this time." Acosta could not recall any particular concern that factored into the decision not to consult with the victims before entering into the NPA, but he acknowledged to OPR, "[C]learly, given the way it's played out, it may have been much better if we had [consulted with the victims]."407 As indicated, the contemporaneous records reflect little about decisions made regarding victim consultation prior to when the NPA was signed. Villafaña raised the issue in writing to her supervisors in early September, but there is no evidence showing whether her supervisors affirmatively rejected Villafaña's contention that the USAO was obligated to consult with victims, ignored the suggestion, or failed to address it for other reasons, possibly because of the extended uncertainty as to whether Epstein would ever agree to the government's plea proposal. OPR notes that its subject interviews were conducted more than a decade after the NPA was signed, and the passage of time affected the recall of each individual OPR interviewed. Although Villafaña recalled discussions with her supervisors about notifying victims, her supervisors did not, and Menchel contended that Villafaña's recollection is inaccurate. Assuming the discussions occurred, the timing is unclear. Sloman was on vacation before the NPA was signed, so a call with Villafaña about victim notification at that point in time appears unlikely. Any discussion involving Menchel necessarily occurred before August 3, 2007, when it was unclear whether the defense would agree to the government's offer. Supervisors could well have decided that at such an early stage, there was little to discuss with victims. To the extent that Villafaña's supervisors affirmatively made a decision not to consult victims, Villafaña's recollection suggests that the decision arose from supervisors' concerns about the confidentiality of plea negotiations and a belief that the government was not obligated to consult with victims about a pre-charge disposition. That belief accurately reflected the Department's position at the time about application of the CVRA. Importantly, OPR did not find evidence establishing that the lack of consultation was for the purpose of silencing victims. Villafaña told OPR that she did not hear any supervisor express concerns about victims objecting to the agreement if they learned of it. Because the subjects did not violate any clear and unambiguous standard in the CVRA by failing to consult with the victims about the NPA, OPR concludes that they did not engage in professional misconduct. However, OPR includes the lack of consultation in its criticism of a series of government interactions with victims that ultimately led to public and court condemnation of the government's treatment of the victims. Although the government was not obligated to consult with victims, a more straightforward and open approach would have been consistent with the government's goal to treat victims of crime with fairness and respect. This was particularly important in a case in which victims felt excluded and mistreated by the state process. Furthermore, in this case, consulting with the victims about a potential plea would have given the USAO greater insight into the victims' willingness to support a prosecution of Epstein. The consultation provision does not 407 Villafaña told OPR that she was not aware of any "improper pressure or promise made to [Acosta] in order to . . . instruct [her] not to make disclosures to the victim[s]." 260 DOJ-OGR-00021462 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page35 of 217 SA-289 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 289 of 348 B. Because the Federal Investigation Continued after the NPA Was Signed, the FBI Letters Were Accurate but Risked Misleading Victims regarding the Status of the Federal Investigation As described previously, given Epstein's appeal to the Department and continued delay entering his guilty plea, Villafaña and other subjects came to believe that Epstein did not intend to comply with the NPA and that the USAO would ultimately file charges against Epstein. By April 2008, Acosta predicted in an email that charging Epstein was "more and more likely." As a result, Villafaña and the case agents continued their efforts to prepare for a likely trial with additional investigative steps. Among other actions, Villafaña, her supervisors, CEOS, and the case agents engaged in the following investigative activities: - The FBI interviewed victims in October and November 2007 and between January and May 2008, and discovered at least six new victims. - In January 2008, CEOS assigned a Trial Attorney to bring expertise and "a national perspective" to the matter. - In January and February 2008, Villafaña and the CEOS Trial Attorney participated in victim interviews. - Villafaña revised the prosecution memorandum to focus "on victims who are unknown to Epstein's counsel." - The USAO informed the Department's Civil Rights Division "pursuant to USAM [§] 8-3.120," of the USAO's "ongoing investigation of a child exploitation matter" involving Epstein and others. - Villafaña secured pro bono legal representation for victims whose depositions were being sought by Epstein's attorneys in connection with the Florida criminal case.413 - Villafaña prepared a revised draft indictment. - Villafaña sought and obtained approval to provide immunity to a potential government witness in exchange for that witness's testimony. - Even after Epstein's state plea hearing was set for June 30, 2008, Villafaña took steps to facilitate the filing of federal charges on July 1, 2008, in the event he did not plead guilty. Villafaña told OPR that from her perspective, the assertion in the FBI victim letter that the case was "currently under investigation" was "absolutely true." Similarly, the FBI case agent told OPR that at the time the letters were sent the "case was never closed and the investigation was delivered, along with the FBI's own victim's rights pamphlet and notification letter, to victims following their FBI interviews. 413 According to the 2017 affidavit filed by Wild's CVRA-case attorney, Edwards, the pro bono counsel that Villafaña secured assisted Wild in "avoiding the improper deposition." 263 DOJ-OGR-00021465 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page39 of 217 SA-293 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 293 of 348 Thereafter, in his December 19, 2007 letter to defense counsel mainly addressing other matters, Acosta informed the defense that the USAO would defer to the State Attorney's discretion the responsibility for notifying victims about Epstein's state plea hearing: I understand that the defense objects to the victims being given notice of [the] time and place of Mr. Epstein's state court [plea and] sentencing hearing. I have reviewed the proposed victim notification letter and the statute. I would note that the United States provided the draft letter to the defense as a courtesy. In addition, First Assistant United States Attorney Sloman already incorporated in the letter several edits that had been requested by defense counsel. I agree that Section 3771 applies to notice of proceedings and results of investigations of federal crimes as opposed to the state crime. We intend to provide victims with notice of the federal resolution, as required by law. We will defer to the discretion of the State Attorney regarding whether he wishes to provide victims with notice of the state proceedings, although we will provide him with the information necessary to do so if he wishes. (Emphasis added.) Acosta told OPR that he "would not have sent this [letter] without running it by [Sloman], if not other individuals in the office." Acosta explained that it was "not for me to direct the State Attorney, or for our office to direct the State Attorney's Office on its obligations with respect to the state outcome." Acosta acknowledged that the USAO initially had concerns about the state's handling of the case, but he told OPR, "that doesn't mean that they will not fulfill whatever obligation they have. Let's not assume . . . that the State Attorney's office is full of bad actors." Sloman initially believed that "the victims were going to be notified at some level, especially because they had restitution rights under [§] 2255"; but his expectations changed after "there was an agreement made that we were going to allow the state, since it was going to be a state case, to decide how the victims were going to be notified."417 Sloman told OPR he had been "proceeding under the belief that we were going to notify the victims," even though "this was not a federal case," but once the NPA "looked like it was going to fall apart," the USAO "had concerns that if we g[a]ve them the victim notification letter . . . and the deal fell apart, then the victims would be instantly impeached by the provision that you're entitled to monetary compensation." OPR could not determine whether the State Attorney's Office notified any victims in advance of the June 30, 2008 state plea hearing. Krischer told OPR that the State Attorney's Office had a robust and effective victim notification process and staff, but he was not aware of whether or how it was used in the Epstein case. Belohlavek told OPR that she could not recall whether victims were notified of the hearing nor whether the state law required notification for the 417 Sloman stated in his June 3, 2008 letter to Deputy Attorney General Filip that Acosta made the decision together with the Department's Criminal Division Deputy Assistant Attorney General Mandelker. Acosta did consult with Mandelker about the § 2255 civil damages recovery process, but neither Acosta nor Mandelker recalled discussing the issue of victim notification, and OPR found no other documentation indicating that Mandelker played a role in the deferral decision. 267 DOJ-OGR-00021469 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page41 of 217 SA-295 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 295 of 348 B. Acosta Exercised Poor Judgment When He Failed to Ensure That Victims Identified in the Federal Investigation Were Informed of the State Plea Hearing Although Acosta (or the USAO) was not required by law or policy to notify victims of the state's plea hearing, he also was not prohibited by law or policy from notifying the victims that the federal investigation had been resolved through an agreement that included pleas to state charges. As the contemporary records indicate, Acosta consistently expressed hesitancy to interfere in the state's processes or to "dictate" actions to the State Attorney. His decision that the USAO refrain from notifying victims about the state plea hearing and defer to the State Attorney's judgment regarding whether and whom to notify was consistent with this view. However, OPR found no evidence that Acosta's decision to defer victim notification "to the discretion of the State Attorney" was ever actually communicated to any state authorities or that Acosta recognized that the state, absent significant coordination with federal authorities, was unlikely to contact all of the victims identified in the state and federal investigations or that the state would inform the victims that it did notify that the state plea hearing was part of an agreement that resolved the federal investigation into their own cases.423 Even taking into account Acosta's views on principles of federalism and his reluctance to interfere in state processes, Acosta should have recognized the problems that would likely stem from passing the task of notifying victims to the State Attorney's Office and made appropriate efforts to ensure that those problems were minimized. Appropriate notification would have included advising victims identified in the federal investigation that the USAO had declined to bring charges and that the matter was being handled by the State Attorney, and, at a minimum, provided the victims with Belohlavek's contact information. Acosta could have interacted with the State Attorney, or instructed Villafaña or others to do so, to ensure the state intended to make notifications in a way that reached the most possible victims and that it had the information necessary to accomplish the task. Instead, Acosta deferred the responsibility for victim notification entirely to the State Attorney's discretion without providing that office with the names of individuals the USAO believed were victims and, apparently, without even informing the state prosecutors that he was deferring to them to make the notifications, if they chose to do so. Epstein was required by the NPA to plead to only two state charges, and even assuming that each charge was premised on a crime against a different victim, and the solicitation charge involved three separate victims, there were thus only at most four victims of the charged state offenses. Without at least inquiring into the state's intentions, Acosta had no way of determining whether the state intended to notify more than those few victims. Moreover, the federal investigation had resulted in the identification of several victims who had not been identified by inform the victim and to the extent that it will not interfere with the investigation." See 42 U.S.C. §§ 10607(c)(1)(B) and (c)(3)(A). 423 Through counsel, Acosta argued that OPR's criticism of him for "electing to 'defer' the notification obligation to the state" was inappropriate and "a non sequitur" because "where no federal notification obligation exists, it cannot be deferred." OPR's criticism, as explained further below, is not with the decision itself, but rather with the fact that although Acosta intended for the federal victims to be notified of the state plea hearing, and believed that they should receive such notification, he nonetheless left responsibility for such notification to the state without ensuring that it had the information needed to do so and without determining the state's intended course of action. 269 DOJ-OGR-00021471 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page43 of 217 SA-297 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 297 of 348 investigation. Because the state indictment and information appeared to pertain to far fewer than the total victims identified in either the state or the federal investigation, and no one at the USAO was certain which victims were covered by the state charges, it should have been apparent to Acosta that without advance planning between the USAO and the State Attorney's Office, there was a substantial risk that most of the victims identified in the federal investigation would not receive notice of the hearing.425 Notification to the broadest possible number of identified victims could only have been successful if there was appropriate communication between the USAO and the state prosecutors, communication that had previously been lacking regarding other significant issues relating to Epstein. Villafaña and Sloman's hastily arranged effort to enlist in the notification process PBPD Chief Reiter, who likely played little role in complying with the state's victim notification obligations in a typical case, was not an adequate substitute for careful planning and coordination with the State Attorney's Office.426 Even if the State Attorney's Office had notified all of the identified victims of the upcoming plea hearing, there was no guarantee that such notification would have included information that the state plea was resolving not just the state's investigation of Epstein, but the federal investigation as well. The State Attorney was not obligated by state statutes to inform the victims of the status of the federal investigation, and there was little reason to assume Krischer, or one of his staff, would voluntarily do so, thereby putting the State Attorney's Office in the position of fielding victim questions and concerns about the outcome. Furthermore, as both the USAO and the defense had differing views as to who could lawfully participate in the state plea hearing, there is no indication that Acosta, Sloman, or Villafaña took steps to confirm that, if victims appeared, they could actually participate in the state court proceeding when they were not victims of the charged crimes.427 Through counsel, Acosta asserted to OPR that because Villafaña and Sloman both told OPR that they believed that state officials would notify the victims, "OPR identified no reason why Secretary Acosta should have distrusted his team on these points." Acosta's counsel further 425 Krischer told OPR that the state's notification obligation extended to all victims identified in the state investigation. Nonetheless, which victims were encompassed in the state's investigation was unclear. The PBPD's probable cause affidavit included crimes against only 5 victims, not the 19 identified in the investigation. According to state records made public, the state subpoenaed to the grand jury only 3 victims. After Epstein's guilty plea, the state sent notification letters to only 2 victims. Belohlavek told OPR that because of the nature of the charges, she did not know whether "technically under the law" the girls were "victims" she was required to notify of the plea hearing. 426 The State Attorney's Office had its own procedures and employees who handled victim notification, and Belohlavek told OPR that the Chief of the Police Department would not regularly play a role in the state victim notification process. 427 Although Villafaña's notes indicate that she researched Florida Statutes §§ 960.001 and 921.143 when she drafted unsent letters to victims in November and December 2007 inviting them to participate in the state plea hearing pursuant to those statues, the caselaw was not clear that all federal victims would have been allowed to participate in the state plea hearing. In Lefkowitz's November 29, 2007 letter to Acosta, he argued that the statutes afforded a right to speak at a defendant's sentencing only to the victims of the crime for which the defendant was being sentenced. In April 2008, a Florida District Court of Appeal ruled against a defendant who argued that Florida Statute § 921.143(1) did not allow the testimony of the victim's relatives at the sentencing hearing. The court ruled that § 921.143(1) "should not be read as limiting the testimony Rule 3.720(b) allows trial courts to consider at sentencing hearings." Smith v. State, 982 So. 2d 69, 72 (Fla. Dist. Ct. App. 2008). 271 DOJ-OGR-00021473 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page47 of 217 SA-301 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 301 of 348 the federal investigation I was cooperating in. If I had been told of a[n NPA], I would have objected." Wild further stated in her declaration that, "Based on what the FBI had been telling me, I thought they were still investigating my case." Neither the CEOS Trial Attorney nor the FBI case agent recalled the specifics of the victim interviews. The FBI reports memorializing each interview primarily addressed the facts elicited from the victim regarding Epstein's abuse and did not describe any discussion about the status of the case or the victim's view about the prosecution of Epstein.433 When asked whether she was concerned that failing to tell victims about the NPA when she was interviewing them would mislead victims, as previously noted, Villafaña told OPR that she believed she and the agents were conducting an investigation because they continued "interviewing witnesses" and "doing all these things" to file charges and prepare for a federal trial. As Villafaña stated, "So to me, saying to a victim the case is now back under investigation is perfectly accurate." Villafaña was also aware that some victims were represented by counsel in connection with civil lawsuits against Epstein, but did not proactively inform the victims' attorneys about the NPA. In a 2017 affidavit filed in the CVRA litigation, victims' attorney Bradley Edwards alleged that during telephone calls with Villafaña, he "asked very specific questions about what stage the investigation was in," and Villafaña replied that she could not answer his questions because the matter "was an on-going active investigation." Edwards stated that Villafaña gave him "the impression that the Federal investigation was on-going, very expansive, and continuously growing, both in the number of identified victims and complexity." Edwards also stated, "A fair characterization of each call was that I provided information and asked questions and Villafaña listened and expressed that she was unable to say much or answer the questions I was asking." In her written response to OPR, Villafaña stated that she "listened more than [she] spoke" during her interactions with Edwards and that due to the "uncertainty of the situation" and the possibility of a trial, she "did not feel comfortable sharing any information about the case." Villafaña also told OPR that because of "all of these concerns and instructions that I had been given by Alex [Acosta] and Jeff [Sloman] not to disclose things further and not to have any involvement in victim notification," she felt "prohibited" from providing additional information to Edwards. Sloman told OPR that although neither the NPA terms nor the CVRA prevented the USAO from exercising its discretion to notify the victims, "[I]t was [of] concern that this was going to break down and . . . result in us prosecuting Epstein and that the victims were going to be witnesses and if we provided a victim notification indicating, hey, you're going to get $150,000, that's . . . going to be instant impeachment for the defense."434 Acosta told OPR that, because Epstein did 433 As noted above, the FBI agent's notes for one victim's interview reported that she wanted another victim to be prosecuted. 434 When asked why the USAO did not simply notify the victims of the change of plea hearing, Sloman responded that he "was more focused on the restitution provisions. I didn't get the sense that the victims were overly interested in showing up . . . at the change of plea." 275 DOJ-OGR-00021477 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page50 of 217 SA-304 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 304 of 348 previously noted, there is some contemporaneous evidence supporting her assertion. Villafaña's mention of the agreement, even if not described in specific terms, would have been sufficient to apprise those victims of the status of the federal investigation. Nevertheless, Villafaña did not recall discussing the NPA specifically or in general terms with other victims interviewed at that time, nor did she do so with Edwards or any other victim's attorney. OPR therefore considered whether the omission of information about the existence of the NPA during these interactions rose to the level of professional misconduct in violation of FRPC 4-4.1 or 4-8.4.441 OPR evaluated Villafaña's conduct in light of the comment to FRPC 4-4.1: A lawyer is required to be truthful when dealing with others on a client's behalf, but generally has no affirmative duty to inform an opposing party of relevant facts. A misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false. Misrepresentations can also occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statements. The victims and their attorneys were certainly not "opposing part[ies]" to the USAO, but the comment indicates that the rule recognizes that omissions made during discussions with third parties, even of relevant facts, are not always treated as false statements. Here, the evidence does not show that Villafaña knowingly made an affirmative false statement to the victims or Edwards or that her omissions were "the equivalent of affirmative false statements" about material facts. First, Villafaña told OPR that she believed the investigation was ongoing and her statement to that effect truthful, and as discussed earlier in this Chapter, the evidence shows that Villafaña and the agents did continue to investigate the case until Epstein entered his guilty plea in state court in June 2008. Villafaña's email correspondence with her supervisors reflects her strong advocacy during that timeframe to declare Epstein in breach and to charge him. The evidence similarly does not show that Villafaña knowingly made any affirmative false statement to Edwards when she informed him of the state court plea, although she declined to provide additional information in response to his questions.442 Second, in reaching its conclusion, OPR considered the full context in which Villafaña interacted with the victims and Edwards. Prosecutors routinely make decisions about what information will be disclosed to witnesses, including victims, for a variety of strategic reasons. In many cases, prosecutors must make difficult decisions about providing information to witnesses, 441 In Florida Bar v. Joy, the court affirmed a referee's conclusion that Joy violated FRPCs 4-4.1(a) and 4-8.4(c) "for making false statements by omission of material facts in his representations [to counsel]." Florida Bar v. Joy, 679 So. 2d 1165, 1166-68 (Fla. 1996). See also Florida Bar re Webster, 647 So. 2d 816 (Fla. 1994) (petition for reinstatement denied due to "misrepresentation by omission"). 442 In Feinberg, 760 So. 2d at 938, the court found that an Assistant State Attorney lacked candor and violated ethics rules when, after meeting with a defendant outside his attorney's presence, the prosecutor falsely stated to the defense attorney that he (the prosecutor) had not met with the defendant. 278 DOJ-OGR-00021480 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page51 of 217 SA-305 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 305 of 348 and they often cannot fully reveal either the facts or the status of an investigation, even with victims. The 2005 Guidelines advise that in consulting with a victim, prosecutors may be limited in their disclosures: "Because victims are not clients, may become adverse to the Government, and may disclose whatever they have learned from consulting with prosecutors, such consultations may be limited to gathering information from victims and conveying only nonsensitive data and public information."443 Villafaña's concern about generating potential impeachment evidence by informing victims of their potential to recover monetary damages from Epstein was not unreasonable. Indeed, the case agents initially raised the impeachment issue, and after considering the problem, Villafaña agreed with the agents' concerns. Villafaña raised those concerns with the USAO's Professional Responsibility Officer in October 2007 after the agents brought the issue to her attention, and she ultimately raised the issue with Sloman and Acosta as well, neither of whom advised her that those concerns were improper or unsound. OPR also considered that although Villafaña had sought to notify the victims in writing of the NPA soon after it was signed, her supervisor, the U.S. Attorney, had decided otherwise. When authorized to inform Edwards of the scheduled change of plea hearing, she did so. Although she did not inform Edwards that the plea was part of a global resolution that would end the federal investigation, the evidence does not show that Villafaña acted for the purpose of deceiving Edwards or preventing him from attending the hearing. Had she sought to exclude him from the state proceedings, she could have elected not to inform Edwards at all, or she could have discouraged him from attending the state proceedings. Rather, as Edwards confirmed, Villafaña told him the hearing was "important." Villafaña sought to strike a difficult balance of securing Edwards's (and his clients') attendance at the state court plea, while obeying her management's directive that informing victims of the resolution of the federal investigation should not be done until completion of the state plea. Therefore, after carefully considering all of the circumstances, OPR concludes that the evidence does not establish that Villafaña violated her obligations under FRPC 4-4.1 or 4-8.4(c) or (d).444 Nonetheless, as discussed below, Villafaña's interactions with victims and victims' attorneys without informing them of the NPA and the potential conclusion of the federal investigation contributed to the likelihood that the victims would feel that the government was 443 2005 Guidelines, Art. IV, ¶ B.2.c(1). As noted, some victims continued to express favorable views of Epstein during interviews with the government and they, or their attorneys, could have provided information to Epstein about the government's communications. For example, within a day of Villafaña contacting a victim's attorney about a potential victim notification letter, Starr complained to Acosta that the government had recently inappropriately provided "oral notification of the victim notification letter" to one girl's attorney, even though it was clear from the girl's recorded FBI interview that she "did not in any manner view herself as a victim." 444 The case most directly on point is Smith, 109 A.3d 1184, in which the Maryland Court of Appeals affirmed a violation of Maryland Rule of Professional Conduct 8.4(d) based on a prosecutor's failure to notify the victim of the resolution of a sex abuse case. However, as noted previously, in Smith, the criminal defendant had been arrested and charged before entering a plea, and various specific statutes afforded victims the right to receive notices and an opportunity to be heard concerning "a case originating by indictment or information in a circuit court." In this case, for the reasons previously discussed, Villafaña did not have a clear and unambiguous obligation to inform the victims or Edwards of the NPA. 279 DOJ-OGR-00021481 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page54 of 217 SA-308 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 308 of 348 to be paid to the FBI's communications to ensure that the victims were receiving accurate and timely information that was consistent with the status of the case and with the USAO's communications with victims.447 The decision not to inform victims and their attorneys about the existence of the NPA gave victims and the public the misimpression that the government had colluded with Epstein's counsel to keep the agreement secret from the victims. Moreover, the lack of openness about the NPA gave the impression that the USAO lacked sensitivity for the victims in resolving the matter and undercut public confidence in the legitimacy of the resulting plea agreement. The overall result of the subjects' anomalous handling of this case left at least some of the victims feeling ignored and frustrated, failed to promote their healing process, and resulted in extensive public criticism. Although OPR credits Villafaña's statements that she wanted to go beyond her obligations in dealing with victims, the end result nonetheless was that communications with victims were not prioritized by the USAO. In part this was due to the fact that interactions with victims are generally handled by staff in the USAO and the FBI who are trained and have expertise in dealing with victims and other witnesses. However, decisions made by Acosta, Sloman, and Villafaña also contributed to the problems. The government, as it ultimately acknowledged in the CVRA litigation, could have, and should have, engaged with the victims in a more transparent and unified fashion. OPR recognizes that the Epstein investigation occurred soon after the passage of the CVRA. In the years since, the Department's prosecutors and personnel have become more familiar with its provisions. OPR encourages the Department as a whole to take the issues discussed above into account when providing training and direction to its employees regarding victims' rights to ensure that in the future, Department attorneys' actions promote victim inclusion whenever possible.448 For example, although the division of responsibility between the FBI and the USAO for communicating with victims works efficiently and appropriately in the average case, the USAO failed to consider that in a case involving a pre-charge disposition, the victims were receiving inconsistent and confusing communications from the separate entities. In certain cases, such as the Epstein case, prosecutors may need to provide more oversight when multiple Department components are communicating with victims to avoid providing confusing and contradictory messages. independent of the NPA provision. OPR also notes that impeachment regarding the NPA provision may have permitted the government to rehabilitate the victims through their prior statements to law enforcement. In other words, while the USAO's view concerning potential impeachment was not unreasonable, more extensive consideration of the case agent's concerns might have led the prosecutors to conclude that the risk of the information being used to significantly damage the credibility of the victims was low. 447 In addition to the FBI letters previously discussed, another example of the inconsistent communication can be seen in letters that were to be sent after Epstein entered his guilty plea to two victims residing in foreign countries. Although OPR was unable to confirm that the two victims actually received the letters, it appears from the records OPR reviewed that the government intended to provide them with a standard FBI letter stating that the case was under investigation while also providing them with a USAO letter stating that the case had been resolved through Epstein's state guilty plea. 448 OPR understands that the Department is in the process of revising the 2011 Guidelines. 282 DOJ-OGR-00021484 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page58 of 217 SA-312 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 312 of 348 OPR concludes that the decision to postpone notifying victims about the terms of the NPA after it was signed and the omission of information about the NPA during victim interviews and conversations with victims' attorneys in 2008 do not constitute professional misconduct. Contemporaneous records show that these actions were based on strategic concerns about creating impeachment evidence that Epstein's victims had financial motives to make claims against him, evidence that could be used against victims at a trial, and were not for the purpose of silencing victims. Nonetheless, the failure to reevaluate the strategy prior to interviews of victims and discussions with victims' attorneys occurring in 2008 led to interactions that contributed to victims' feelings that the government was intentionally concealing information from them. After examining the full scope and context of the government's interactions with victims, OPR concludes that the government's lack of transparency and its inconsistent messages led to victims feeling confused and ill-treated by the government; gave victims and the public the misimpression that the government had colluded with Epstein's counsel to keep the NPA secret from the victims; and undercut public confidence in the legitimacy of the resulting agreement. The overall result of the subjects' anomalous handling of this case understandably left many victims feeling ignored and frustrated and resulted in extensive public criticism. In sum, OPR concludes that the victims were not treated with the forthrightness and sensitivity expected by the Department. 286 DOJ-OGR-00021488 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page59 of 217 SA-313 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 313 of 348 METHODOLOGY A. Document Review As referenced in the Executive Summary, OPR obtained and reviewed hundreds of thousands of pages of documents from the U.S. Attorney's Office for the Southern District of Florida (USAO), other U.S. Attorney's offices, the FBI, and other Department components, including the Office of the Deputy Attorney General, the Criminal Division, and the Executive Office for U.S. Attorneys (EOUSA). The categories of documents reviewed by OPR, and their sources, are set forth below. 1. USAO Records The USAO provided OPR with access to all of its records from its handling of the Epstein investigation and the CVRA litigation. The records included, but were not limited to, boxes of material that Villafaña updated and maintained through the course of both actions, which contained pleadings from the Epstein investigation, the CVRA litigation, and other related cases; extensive compilations of internal and external correspondence, including letters and emails; evidence such as telephone records, FBI reports, material received from the state investigation, and other confidential investigative records; court transcripts; investigative transcripts; prosecution team handwritten notes; research material; and draft and final case documents such as the NPA, prosecution memoranda, and federal indictments. The USAO also provided OPR with access to filings, productions, and privileged material in the CVRA litigation; Outlook data collected to respond to production requests in that case; a set of Epstein case documents maintained by Acosta and Sloman; computer files regarding the Epstein case collected by Sloman; Villafaña's Outlook data; Acosta's hard drive; and the permanently retained official U.S. Attorney records of Acosta held by the Federal Records Center. 2. EOUSA Records EOUSA provided OPR with Outlook data from all five subjects and six additional witnesses. This information, dating back to 2005, included all inbox, outbox, sent, deleted, and saved emails, and calendar entries that it maintained. EOUSA provided OPR with over 850,000 Outlook records in total (not including email attachments or excluding duplicate records). OPR identified key time periods and fully reviewed those records. OPR applied search terms to the remainder of the records and reviewed any responsive documents. After reviewing the emails, OPR identified a data gap in Acosta's email records: his inbox contained no emails from May 26, 2007, through November 2, 2008. This gap, however, was not present with respect to Acosta's sent email. OPR requested that EOUSA investigate. During its investigation, EOUSA discovered a data association error that incorrectly associated Acosta's data with an unrelated employee who had a similar name. Once the data was properly associated, EOUSA found and produced 11,248 Acosta emails from April 3, 2008, through the end of his tenure at the USAO. However, with respect to the remaining emails, EOUSA concluded that the emails were not transferred from the USAO when, in 2008 and 2009, Outlook data for all U.S. 287 DOJ-OGR-00021489 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page61 of 217 SA-315 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 315 of 348 6. U.S. Attorney's Office for the Middle District of Florida Records The U.S. Attorney's Office for the Middle District of Florida provided OPR with records related to its review of evidence against Epstein, after he concluded his Florida state sentence, when the Department recused the USAO in August 2011 from "all matters, to include the investigation and potential prosecution, relating to Jeffrey Epstein's alleged sexual activities with minor females," and assigned the matter to the Middle District of Florida U.S. Attorney's Office for further consideration. The records included a declination of the matter due to the NPA. 7. U.S. Attorney's Office for the Northern District of Georgia Records The U.S. Attorney's Office for the Northern District of Georgia provided OPR with records related to its work on the CVRA litigation after the recusal of the USAO. 8. Public Records OPR obtained and reviewed a variety of public records, including publicly released records of the Palm Beach Police Department, the State Attorney's Office for the 15th Judicial Circuit, and the Palm Beach Sheriff's Office; documents pertaining to the CVRA litigation and other court proceedings involving Epstein and related individuals; and books and media reports. B. Information from Subjects, Witnesses, and Victims 1. Subjects OPR requested that all five subjects provide written responses detailing their involvement in the federal investigation of Epstein, the drafting and execution of the NPA, and decisions relating to victim notification and consultation. In addition, OPR conducted extensive interviews of each subject under oath and before a court reporter. Each subject was represented by counsel and had access to relevant contemporaneous documents before the subject's OPR interview. The subjects reviewed and provided comments on their interview transcripts and on OPR's draft report. 2. Witnesses OPR conducted more than 60 interviews of witnesses, including the FBI case agents, their supervisors, and FBI administrative personnel. OPR interviewed current and former USAO staff and attorneys and current and former Department attorneys and senior managers, including former Deputy Attorney General Mark Filip and former Assistant Attorney General for the Criminal Division Alice Fisher. OPR also interviewed former State Attorney Barry Krischer and former Assistant State Attorney Lanna Behlolovich. 3. Communications with Victims and Victims' Attorneys OPR contacted attorneys known to represent 26 victims among the 30 surviving individuals who were identified in the USAO's July 2008 listing of 32 victims the USAO was prepared to include in federal charges against Epstein and who accordingly were entitled to the benefits of the 18 U.S.C. § 2255 monetary damages provision of the NPA. OPR contacted the attorneys to invite 289 DOJ-OGR-00021491 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page62 of 217 SA-316 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 316 of 348 the victims to provide OPR with information regarding their contacts with, and notification received from, the FBI and USAO, during the period before the NPA was signed or before Epstein's state plea hearing, about the status of the federal investigation, about Epstein's state plea, or about the NPA. OPR received information from or pertaining to 13 victims. 290 DOJ-OGR-00021492 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page63 of 217 SA-317 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 317 of 348 EXHIBIT 1 State Indictment DOJ-OGR-00021493 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page64 of 217 SA-318 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 318 of 348 [Page Intentionally Left Blank] DOJ-OGR-00021494 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page66 of 217 SA-320 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 320 of 348 [Page Intentionally Left Blank] DOJ-OGR-00021496 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page67 of 217 SA-321 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 321 of 348 EXHIBIT 2 September 6, 2007 Draft Non-Prosecution Agreement DOJ-OGR-00021497 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page68 of 217 SA-322 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 322 of 348 [Page Intentionally Left Blank] DOJ-OGR-00021498 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page69 of 217 SA-323 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 323 of 348 IN RE: INVESTIGATION OF JEFFREY EPSTEIN NON-PROSECUTION AGREEMENT IT APPEARING that Jeffrey Epstein (hereinafter "Epstein") is reported to have committed offenses against the United States from in or around 2001 through in or around October 2005, including: (1) knowingly and willfully conspiring with others known and unknown to commit an offense against the United States, that is, to use a facility or means of interstate or foreign commerce to knowingly persuade, induce, or entice minor females to engage in prostitution, in violation of Title 18, United States Code, Section 2422(b); all in violation of Title 18, United States Code, Section 371; (2) knowingly and willfully conspiring with others known and unknown to travel in interstate commerce for the purpose of engaging in illicit sexual conduct, as defined in 18 U.S.C. § 2423(f), with minor females, in violation of Title 18, United States Code, Section 2423(b); all in violation of Title 18, United States Code, Section 2423(e); (3) using a facility or means of interstate or foreign commerce to knowingly persuade, induce, or entice minor females to engage in prostitution; in violation of Title 18, United States Code, Sections 2422(b) and 2; (4) traveling in interstate commerce for the purpose of engaging in illicit sexual conduct, as defined in 18 U.S.C. § 2423(f), with minor females; in violation of Title 18, United States Code, Section 2423(b); and (5) knowingly, in and affecting interstate and foreign commerce, recruiting, enticing, and obtaining by any means a person, knowing that the person had not attained the age of 18 years and would be caused to engage in a commercial sex act as defined in 18 U.S.C. § 1591(c)(1); in violation of Title 18, United States Code, Sections 1591(a)(1) and 2; and IT APPEARING that Epstein has accepted responsibility for his behavior by his Παγε 1 οφ 4 DOJ-OGR-00021499 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page71 of 217 SA-325 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 325 of 348 3. Epstein shall waive all challenges to the Information filed by the State Attorney's Office and shall waive the right to appeal his conviction and sentence. 4. Epstein agrees that, if any of the victims identified in the federal investigation file suit pursuant to 18 U.S.C. § 2255, Epstein will not contest the jurisdiction of the U.S. District Court for the Southern District of Florida over his person and/or the subject matter, and Epstein will not contest that the identified victims are persons who, while minors, were victims of violations of Title 18, United States Code, Sections(s) 2422 and/or 2423. 5. The United States shall provide Epstein's attorneys with a list of the identified victims, which will not exceed forty, after Epstein has signed this agreement and entered his guilty plea. The United States shall make a motion with the United States District Court for the Southern District of Florida for the appointment of a guardian ad litem for the identified victims and Epstein's counsel may contact the identified victims through that counsel. 6. Epstein shall enter his guilty plea and be sentenced not later than September 28, 2007, and shall begin service of his sentence not later than October 15, 2007. By signing this agreement, Epstein asserts and certifies that each of these terms is material to this agreement and is supported by independent consideration and that a breach of any one of these conditions allows the United States to elect to terminate the agreement and to investigate and prosecute Epstein for any and all federal offenses. By signing this agreement, Epstein asserts and certifies that he is aware of the fact that the Sixth Amendment to the Constitution of the United States provides that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial. Epstein further is aware that Rule 48(b) of the Federal Rules of Criminal Procedure provides that the Court may dismiss an indictment, information, or complaint for unnecessary delay in presenting a charge to the Grand Jury, filing an information, or in bringing a defendant to trial. Epstein hereby requests that the United States Attorney for the Southern District of Florida defer such prosecution. Epstein agrees and consents that any delay from the date of this Agreement to the date of initiation of prosecution, as provided for in the terms expressed herein, shall be deemed to be a necessary delay at his own request, and he hereby waives any defense to such prosecution on the ground that such delay operated to deny him rights under Rule 48(b) of the Federal Rules of Criminal Procedure and the Sixth Amendment to the Constitution of the United States to a speedy trial or to bar the prosecution by reason of the running of the statute of limitations for a period of months equal to the period between the signing of this agreement and the breach of this Παγε 3 οφ 4 DOJ-OGR-00021501 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page72 of 217 SA-326 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 326 of 348 agreement. Epstein further asserts and certifies that he understands that the Fifth Amendment and Rule 7(a) of the Federal Rules of Civil Procedure provide that all felonies must be charged in an indictment presented to a grand jury. Epstein hereby agrees and consents that, if a prosecution against him is instituted, it may be by way of an Information signed and filed by the United States Attorney, and hereby waives his right to be indicted by a grand jury. By signing this agreement, Epstein asserts and certifies that the above has been read and explained to him. Epstein hereby states that he understands the conditions of this non-Prosecution Agreement and agrees to comply with them. Dated: _____________________________________ Jeffrey Epstein Dated: _____________________________________ Roy Black, Esq. Counsel to Jeffrey Epstein R. ALEXANDER ACOSTA UNITED STATES ATTORNEY Dated: _____________________________________ By: A. Marie Villafaña Assistant United States Attorney Page 4 of 4 DOJ-OGR-00021502 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page73 of 217 SA-327 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 327 of 348 EXHIBIT 3 September 24, 2007 Non-Prosecution Agreement DOJ-OGR-00021503 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page74 of 217 SA-328 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 328 of 348 [Page Intentionally Left Blank] DOJ-OGR-00021504 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page75 of 217 SA-329 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 329 of 348 IN RE: INVESTIGATION OF JEFFREY EPSTEIN NON-PROSECUTION AGREEMENT IT APPEARING that the City of Palm Beach Police Department and the State Attorney's Office for the 15th Judicial Circuit in and for Palm Beach County (hereinafter, the "State Attorney's Office") have conducted an investigation into the conduct of Jeffrey Epstein (hereinafter "Epstein"); IT APPEARING that the State Attorney's Office has charged Epstein by indictment with solicitation of prostitution, in violation of Florida Statutes Section 796.07; IT APPEARING that the United States Attorney's Office and the Federal Bureau of Investigation have conducted their own investigation into Epstein's background and any offenses that may have been committed by Epstein against the United States from in or around 2001 through in or around September 2007, including: (1) knowingly and willfully conspiring with others known and unknown to commit an offense against the United States, that is, to use a facility or means of interstate or foreign commerce to knowingly persuade, induce, or entice minor females to engage in prostitution, in violation of Title 18, United States Code, Section 2422(b); all in violation of Title 18, United States Code, Section 371; (2) knowingly and willfully conspiring with others known and unknown to travel in interstate commerce for the purpose of engaging in illicit sexual conduct, as defined in 18 U.S.C. § 2423(f), with minor females, in violation of Title 18, United States Code, Section 2423(b); all in violation of Title 18, United States Code, Section 2423(e); (3) using a facility or means of interstate or foreign commerce to knowingly persuade, induce, or entice minor females to engage in prostitution; in violation of Title 18, United States Code, Sections 2422(b) and 2; (4) traveling in interstate commerce for the purpose of engaging in illicit sexual conduct, as defined in 18 U.S.C. § 2423(f), with minor females; in violation Page 1 of 7 DOJ-OGR-00021505 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page79 of 217 SA-333 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 333 of 348 sentenced not later than October 26, 2007. The United States has no objection to Epstein self-reporting to begin serving his sentence not later than January 4, 2008. 12. Epstein agrees that he will not be afforded any benefits with respect to gain time, other than the rights, opportunities, and benefits as any other inmate, including but not limited to, eligibility for gain time credit based on standard rules and regulations that apply in the State of Florida. At the United States' request, Epstein agrees to provide an accounting of the gain time he earned during his period of incarceration. 13. The parties anticipate that this agreement will not be made part of any public record. If the United States receives a Freedom of Information Act request or any compulsory process commanding the disclosure of the agreement, it will provide notice to Epstein before making that disclosure. Epstein understands that the United States Attorney has no authority to require the State Attorney's Office to abide by any terms of this agreement. Epstein understands that it is his obligation to undertake discussions with the State Attorney's Office and to use his best efforts to ensure compliance with these procedures, which compliance will be necessary to satisfy the United States' interest. Epstein also understands that it is his obligation to use his best efforts to convince the Judge of the 15th Judicial Circuit to accept Epstein's binding recommendation regarding the sentence to be imposed, and understands that the failure to do so will be a breach of the agreement. In consideration of Epstein's agreement to plead guilty and to provide compensation in the manner described above, if Epstein successfully fulfills all of the terms and conditions of this agreement, the United States also agrees that it will not institute any criminal charges against any potential co-conspirators of Epstein, including but not limited to [REDACTED]. Further, upon execution of this agreement and a plea agreement with the State Attorney's Office, the federal Grand Jury investigation will be suspended, and all pending federal Grand Jury subpoenas will be held in abeyance unless and until the defendant violates any term of this agreement. The defendant likewise agrees to withdraw his pending motion to intervene and to quash certain grand jury subpoenas. Both parties agree to maintain their evidence, specifically evidence requested by or directly related to the grand jury subpoenas that have been issued, and including certain computer equipment, inviolate until all of the terms of this agreement have been satisfied. Upon the successful completion of the terms of this agreement, all outstanding grand jury subpoenas shall be deemed withdrawn. Page 5 of 7 DOJ-OGR-00021509 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page83 of 217 SA-337 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 337 of 348 By signing this agreement, Epstein asserts and certifies that the above has been read and explained to him. Epstein hereby states that he understands the conditions of this Non-Prosecution Agreement and agrees to comply with them. R. ALEXANDER ACOSTA UNITED STATES ATTORNEY Dated: ____________________ By: ____________________ A. MARIE VILLAFANA ASSISTANT U.S. ATTORNEY Dated: ____________________ JEFFREY EPSTEIN Dated: ____________________ GERALD LEFCOURT, ESQ. COUNSEL TO JEFFREY EPSTEIN Dated: 9-24-07 LILLY ANN SANCHEZ, ESQ. ATTORNEY FOR JEFFREY EPSTEIN Page 7 of 7 DOJ-OGR-00021513 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page84 of 217 SA-338 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 338 of 348 [Page Intentionally Left Blank] DOJ-OGR-00021514 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page85 of 217 SA-339 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 339 of 348 EXHIBIT 4 Addendum to the Non-Prosecution Agreement DOJ-OGR-00021515 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page86 of 217 SA-340 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 340 of 348 [Page Intentionally Left Blank] DOJ-OGR-00021516 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page87 of 217 SA-341 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 341 of 348 IN RE: INVESTIGATION OF JEFFREY EPSTEIN ADDENDUM TO THE NON-PROSECUTION AGREEMENT IT APPEARING that the parties seek to clarify certain provisions of page 4, paragraph 7 of the Non-Prosecution Agreement (hereinafter "paragraph 7"), that agreement is modified as follows: 7A. The United States has the right to assign to an independent third-party the responsibility for consulting with and, subject to the good faith approval of Epstein's counsel, selecting the attorney representative for the individuals identified under the Agreement. If the United States elects to assign this responsibility to an independent third-party, both the United States and Epstein retain the right to make good faith objections to the attorney representative suggested by the independent third-party prior to the final designation of the attorney representative. 7B. The parties will jointly prepare a short written submission to the independent third-party regarding the role of the attorney representative and regarding Epstein's Agreement to pay such attorney representative his or her regular customary hourly rate for representing such victims subject to the provisions of paragraph C, infra. 7C. Pursuant to additional paragraph 7A, Epstein has agreed to pay the fees of the attorney representative selected by the independent third party. This provision, however, shall not obligate Epstein to pay the fees and costs of contested litigation filed against him. Thus, if after consideration of potential settlements, an attorney representative elects to file a contested lawsuit pursuant to 18 U.S.C. s 2255 or elects to pursue any other contested remedy, the paragraph 7 obligation of the Agreement to pay the costs of the attorney representative, as opposed to any statutory or other obligations to pay reasonable attorneys fees and costs such as those contained in s 2255 to bear the costs of the attorney representative, shall cease. DOJ-OGR-00021517 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page88 of 217 SA-342 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 342 of 348 By signing this Addendum, Epstein asserts and certifies that the above has been read and explained to him. Epstein hereby states that he understands the clarifications to the Non-Prosecution Agreement and agrees to comply with them. R. ALEXANDER ACOSTA UNITED STATES ATTORNEY Dated: 10/30/07 By: Jeffrey H. Sloman FAUSA A. MARIE VILLAFANA ASSISTANT U.S. ATTORNEY Dated: 10/29/07 JEFFREY EPSTEIN Dated: GERALD LEFCOURT, ESQ. COUNSEL TO JEFFREY EPSTEIN Dated: LILLY ANN SANCHEZ, ESQ. ATTORNEY FOR JEFFREY EPSTEIN DOJ-OGR-00021518 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page89 of 217 SA-343 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 343 of 348 By signing this Addendum, Epstein asserts and certifies that the above has been read and explained to him. Epstein hereby states that he understands the clarifications to the Non-Prosecution Agreement and agrees to comply with them. R. ALEXANDER ACOSTA UNITED STATES ATTORNEY Dated: 10/30/07 By: Jeffrey H. Sloman FAUSA A. MARIE VILLAFANA ASSISTANT U.S. ATTORNEY Dated: Dated: 10/29/07 JEFFREY EPSTEIN Gerald Lefcourt GERALD LEFCOURT ESQ. COUNSEL TO JEFFREY EPSTEIN Dated: LILLY ANN SANCHEZ, ESQ. ATTORNEY FOR JEFFREY EPSTEIN DOJ-OGR-00021519 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page90 of 217 SA-344 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 344 of 348 By signing this Addendum, Epstein asserts and certifies that the above has been read and explained to him. Epstein hereby states that he understands the clarifications to the Non-Prosecution Agreement and agrees to comply with them. R. ALEXANDER ACOSTA UNITED STATES ATTORNEY Dated: 10/30/07 By: A. MARIE VILLAFANA ASSISTANT U.S. ATTORNEY Dated: JEFFREY EPSTEIN Dated: GERALD LEFCOURT, ESQ. COUNSEL TO JEFFREY EPSTEIN Dated: 10-29-07 LILLY ANN SANCHEZ, ESQ. ATTORNEY FOR JEFFREY EPSTEIN DOJ-OGR-00021520 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page91 of 217 SA-345 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 345 of 348 EXHIBIT 5 State Information DOJ-OGR-00021521 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page92 of 217 SA-346 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 346 of 348 [Page Intentionally Left Blank] DOJ-OGR-00021522 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page94 of 217 SA-348 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 348 of 348 [Page Intentionally Left Blank] DOJ-OGR-00021524 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page115 of 217 SA-369 Case 1:20-cr-00330-AJN Document 620 Filed 02/25/22 Page 21 of 21 Dated: February 24, 2022 New York, New York Alison J. Nathan Alison J. Nathan United States District Judge 21 DOJ-OGR-00021545 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page116 of 217 SA-370 M6SQmax1 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------------------------------x UNITED STATES OF AMERICA, v. 20 CR 330 (AJN) Sentencing GHISLAINE MAXWELL, Defendant. -----------------------------------------------------------x New York, N.Y. June 28, 2022 11:00 a.m. Before: HON. ALISON J. NATHAN, United States Circuit Judge Sitting by Designation APPEARANCES DAMIAN WILLIAMS United States Attorney for the Southern District of New York BY: MAURENE COMEY ALISON MOE LARA POMERANTZ ANDREW ROHRBACH Assistant United States Attorneys HADDON MORGAN AND FOREMAN Attorneys for Defendant BY: CHRISTIAN R. EVERDELL -and- BOBBI C. STERNHEIM Also Present: Amanda Young, FBI Paul Byrne, NYPD Sunny Drescher, Paralegal, U.S. Attorney's Office SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page117 of 217 SA-371 M6SQmax1 2 1 (In open court; case called) 2 DEPUTY CLERK: Counsel, please state your name for the 3 record starting with the government. 4 MS. MOE: Good morning, your Honor. Alison Moe, Lara 5 Pomerantz, Maurene Comey and Andrew Rohrbach for the 6 government. We're joined at counsel table by paralegal 7 specialist Sunny Drescher. Also as a member of our team in the 8 gallery are our case agents, Special Agent Amanda Young and 9 Detective and Paul Byrne. 10 THE COURT: Good morning to you all. 11 MS. STERNHEIM: Good morning. Bobbi C. Sternheim and 12 Christian R. Everdell for Ghislaine Maxwell, who is present at 13 counsel table. 14 THE COURT: Good morning, Counsel. 15 Good morning, Ms. Maxwell. 16 Please, be seated everyone. 17 We are here today for sentencing in United States v. 18 Ghislaine Maxwell 20 CR 330. 19 In preparation for today's proceeding, I have reviewed 20 the probation report, which is dated June 9, 2022 by revision 21 date. 22 I have also received and reviewed the following 23 additional submissions: I have the defense memorandum in 24 support of PSR objections, which is dated June 15, 2022. I 25 have the defendant's primary sentencing submission, which is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021547 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page118 of 217 SA-372 M6SQmax1 3 1 dated June 15, 2022. There are exhibits attached to that 2 sentencing submission, Exhibits A through J. A through H -- 3 I'm sorry -- A through I were a series of letters from friends 4 and family members of Ms. Maxwell. J is a forensic psychiatric 5 evaluation. And then I received by a later transmission date 6 of June 26, 2022 a letter from an inmate at MDC related to 7 Ms. Maxwell's assistance of other inmates with tutoring. 8 I have the government's sentencing submission, which 9 is dated June 22, 2022. 10 With respect to victim impact statements, I have dated 11 June 22, 2022 a victim impact statement from Annie Farmer. I 12 have a victim impact statement from the witness who went by the 13 name of Kate under my pseudonym order during trial. That I 14 believe is undated. I have a statement dated June 22, 2022 15 from Virginia Roberts, or Giuffre. I have same date from 16 Juliette Bryant, same date from Maria Farmer, same date from 17 Teresa Helm. I also have undated statements from Sarah 18 Ransome -- I apologize if I'm saying your name wrong -- and 19 Elizabeth Stein. 20 Counsel, is there anything else I should have in front 21 of me for purposes of sentencing? 22 MS. MOE: No, your Honor. Thank you. 23 THE COURT: Ms. Sternheim. 24 MS. STERNHEIM: Other than the submissions that we 25 made in connection with the CVRA, that is a complete record of SOUTHERN DISTRICT REPORTERS, P.C... (212) 805-0300 DOJ-OGR-00021548 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page119 of 217 SA-373 4 M6SQmax1 1 what we have received and reviewed. 2 THE COURT: Yes. Thank you. And that is part of the 3 record including there was an ethics letter and other materials 4 submitted in connection with your objection to that. 5 MS. STERNHEIM: Thank you very much. 6 THE COURT: Thank you. 7 All right. Counsel, would you just please confirm 8 that you've received each other's submissions? 9 MS. MOE: Yes, your Honor. 10 MS. STERNHEIM: Yes. 11 THE COURT: Let's also confirm all submissions are 12 filed on ECF. 13 MS. MOE: That's correct, your Honor. 14 MS. STERNHEIM: Yes. 15 THE COURT: Thank you. 16 Ms. Moe, I did have the government indicate this in a 17 letter, but if you would confirm and articulate what the 18 government has done to notify any crime victims of their rights 19 under the Justice For All Act? 20 MS. MOE: Yes, your Honor. 21 With respect to the six individuals who were proved at 22 trial to be directly impacted by the offense conduct, the 23 government has notified those individuals through their counsel 24 about the sentencing and about their right to be heard. 25 In addition to that notification, the government has SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021549 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page120 of 217 SA-374 5 M6SQmax1 1 used the victim notification page on the U.S. Attorney's Office 2 website regarding this case about the upcoming sentencing. 3 THE COURT: And you posted the Court's order there 4 regarding a process for submission of statements. 5 MS. MOE: Yes, your Honor. 6 THE COURT: Thank you. 7 We'll turn to the presentence report. 8 Ms. Sternheim, I know that you have because you've 9 objected to a lot which we will talk about, but for the record, 10 have you read the presentence report and discussed it with your 11 client? 12 MS. STERNHEIM: Yes, your Honor. 13 And, if I may, Mr. Everdell will handle the objections 14 portion of our presentation. 15 THE COURT: Okay. We'll get to that in just a moment. 16 Thank you. 17 Ms. Maxwell, can you please confirm that you've read 18 the presentence report and had a full opportunity to discuss it 19 with your counsel? 20 THE DEFENDANT: I did have an opportunity to read it. 21 THE COURT: And an opportunity to discuss it with your 22 counsel? 23 THE DEFENDANT: I did. 24 THE COURT: Okay. 25 Ms. Moe, for the record, have you reviewed the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021550 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page121 of 217 SA-375 M6SQmax1 1 presentence report? 2 MS. MOE: Yes, your Honor. 3 THE COURT: Thank you. 4 So we will turn first -- we'll set aside first the guideline calculation. We'll turn to the factual accuracy of the report. And I did receive substantial factual objections to factual assertions in the report. I am prepared to go through those with respect to any continuing factual objections by the defense. 5 Let me confirm, Ms. Moe, does the government have any objections to the report regarding factual accuracy? 6 MS. MOE: None, aside from those which are already noted in the PSR. 7 THE COURT: No continuing objections. 8 MS. MOE: That's correct, your Honor. 9 THE COURT: Mr. Everdell, I know that you do have continuing objections. Tell me where you'd like to begin. 10 MR. EVERDELL: Well, your Honor, I don't know if the Court is planning on resolving each and every factual discrepancy or dispute or whether there are certain ones that the court will find are relevant to sentencing or whether we should go through each in detail. 11 THE COURT: I am prepared to -- what I typically do is go through each one so that if there is a correction to the report that is being requested to be made, whether it's 12 SOUTHERN DISTRICT REPORTERS, P.C... (212) 805-0300 DOJ-OGR-00021551 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page122 of 217 SA-376 M6SQmax1 7 1 material to sentencing or not, I am prepared to address it. 2 So I believe the first -- what I see as your first 3 continued objection is to paragraph 22. 4 MR. EVERDELL: I'm just getting my submissions. 5 Yes, that's correct, your Honor. 6 THE COURT: I overrule the objection. I do credit 7 Juan Alessi's testimony that the defendant identified and 8 targeted Virginia after seeing her in the Mar-a-Lago parking 9 lot. The defendant also worked with Epstein to identify and 10 target Jane. 11 Paragraph three I see three objections to this 12 paragraph. Is that a continuing objection, Mr. Everdell? 13 MR. EVERDELL: Paragraph three, your Honor? 14 THE COURT: 23. I apologize. 15 MR. EVERDELL: Yes, your Honor. 16 THE COURT: I overrule the objection. The first 17 objection is regarding the conclusion that Ms. Maxwell was the 18 author of the essay in the paragraph. I overrule the objection 19 because a reasonable inference supported by the trial evidence 20 is that the defendant authored the essay. Metadata indicated 21 that the computer was registered to "GMax" and the document was 22 saved under the user name "Ghislaine." 23 The second objection is to the assertion that Epstein 24 transferred Ms. Maxwell approximately $23 million during the 25 conspiracy. I overrule that objection. Bank statements SOUTHERN DISTRICT REPORTERS, P.C...(212) 805-0300 DOJ-OGR-00021552 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page123 of 217 SA-377 8 1 admitted at trial showed that accounts under Epstein's name 2 wired approximately $23 million over two occasions during the 3 conspiracy to accounts of "Ghislaine Maxwell." The defendant's 4 assertion that Epstein's accountant may have had access to and 5 control over these accounts does not undermine the reasonable 6 inference that the defendant controlled the funds in accounts 7 bearing her name, so that is established by a preponderance. 8 As to the third objection that there's no evidence in 9 the record that Epstein bought the defendant her New York City 10 townhouse, I overrule that objection because I credit Kate's 11 testimony that the defendant told her that Epstein bought the 12 defendant her New York townhouse. 13 Paragraph 25 is an objection to the characterization 14 of the Palm Beach residence being operated through a culture of 15 silence. 16 You'll let me know if you're not maintaining an 17 objection. 18 MR. EVERDELL: Yes. I think that the default is we 19 are, your Honor. 20 THE COURT: Understood. 21 I overrule this objection. Evidence at trial 22 indicates that this was the case. For example, the household 23 manual instructed employees to "see nothing, hear nothing, say 24 nothing." I credit Mr. Alessi's testimony that he understood 25 this instruction to be a kind of warning that he was supposed SOUTHERN DISTRICT REPORTERS, P.C...(212) 805-0300 DOJ-OGR-00021553 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page124 of 217 SA-378 M6SQmax1 9 1 to be blind, deaf and dumb, and to say nothing of Epstein's and 2 Ms. Maxwell's lives. 3 Paragraph 26, there's an objection to the 4 characterization concerning the defendant's identification and 5 isolation of minor girls as inconsistent with the trial 6 evidence. I overrule this objection for the same reasons as 7 articulated with respect to paragraph 22. In addition, the 8 trial evidence established that the defendant and Epstein 9 isolated girls by spending time with them alone away from their 10 families. For example, Annie's testimony regarding the trip to 11 New Mexico. Jane's testimony that she would spend time at the 12 Palm Beach residence alone with Epstein and the defendant. 13 Paragraphs 27 and 28 the defendant makes two 14 objections: First, to the assertion that the defendant and 15 Epstein developed a scheme that created a "constant stream of 16 girls who recruited each other." And, second, she objects to 17 the assertion that she encouraged minor girls to bring other 18 minor girls to provide Epstein with sexualized massages. 19 Again, based on the trial testimony and evidence, I 20 overrule the objection. It supported the information in these 21 paragraphs. The evidence indicated the scheme started with the 22 defendant's recruitment of Virginia. Virginia then enlisted 23 Carolyn in addition to at least two other girls. Carolyn in 24 turn recruited at least three friends, and those friends then 25 brought more girls. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021554 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page125 of 217 SA-379 M6SQmax1 10 1 Carolyn credibly testified that she was paid twice as much when she brought friends to the massages. Based on the defendant's control of household and Carolyn's testimony that the defendant on occasion paid her directly, I find it more probable than not by a preponderance of the evidence that Virginia was also paid more as encouragement to recruit additional girls. Paragraph 9, there's an objection to the inclusion of Kate in this paragraph. It argues that her name should be deleted because Kate is not a victim of the crimes charged in the indictment. MR. EVERDELL: Your Honor, I'm sorry to interrupt. I think you said paragraph 9. THE COURT: I did. I'm sorry. I'm skipping the first number for some reason. 29. Thank you, Mr. Everdell. I overrule this objection because the paragraph doesn't assert that Kate was a statutory victim as we've discussed throughout trial and the government didn't contend that Kate was a victim of the crimes charged in the indictment, and that paragraph doesn't assert that she was. Paragraphs 30 to 38, there's objection throughout these to the characterization of the defendant having groomed Jane. I overrule these objections. I think the government is right here that the objection is conflating grooming with enticement to travel for purposes of sexual contact. Jane's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021555 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page126 of 217 SA-380 M6SQmax1 11 1 credible trial testimony established that the defendant took 2 steps to make Jane comfortable and encouraged her to engage in 3 illegal sex acts with Epstein. 4 Paragraphs 39 to 45 which describe specific conduct 5 involving Kate, I think the specific request here -- well, 6 first, was that it should be removed from the PSR because Kate 7 was not a victim of the crimes charged in the indictment, and 8 then, alternatively, that it be moved to a different paragraph 9 with a heading offense behavior not part of relevant conduct. 10 I don't see that this is necessary. I overrule the objection. 11 Conduct involving Kate may be considered at sentencing her 12 testimony revealed additional details of the defendant's method 13 of identifying and introducing to Epstein young girls for 14 sexualized massages. Her testimony also established the 15 defendant's knowledge of the sexualized nature of massages with 16 Epstein. 17 Paragraph 43, the defendant contends this paragraph 18 should include a sentence that Kate was above the age of 19 consent at all times. I think the paragraph says that Kate was 20 age 17 or above at all relevant times, and I have no objection 21 to including that she was above the age of consent at all times 22 based on the trial evidence, so I will make that change to 23 paragraph 43 of the PSR. 24 Paragraph 54, the defendant objects that there's no 25 evidence that Epstein paid for Annie's trip to Thailand. That SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021556 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page127 of 217 SA-381 12 M6SQmax1 1 objection is overruled. Annie testified to this fact at trial, 2 and I credit this testimony. 3 Paragraph 5 -- sorry -- did it again. 55, defendant 4 makes three objections to the paragraph. I overrule the 5 objections. The record supports that the defendant personally 6 recruited Virginia to provide Epstein with sexualized massages 7 when she was a minor. Jane and Kate's testimony established 8 that the defendant was aware that the massages were sexualized. 9 I credit Mr. Alessi's testimony that the defendant approached 10 Virginia, and that Virginia visited the residence -- approached 11 Virginia for the first time, and that Virginia visited the 12 residence later that day. Flight records and credible witness 13 testimony established that this meeting occurred before 14 Virginia was 18. In addition, when Virginia brought Carolyn to 15 the residence, the defendant greeted them and instructed 16 Virginia to show Carolyn -- quoting from the trial record -- 17 "what to do." Carolyn then witnessed Virginia give Epstein a 18 sexualized massage involving sexual intercourse. Finally, as I 19 explained in my resolution to paragraphs 27 and 28, I do 20 conclude that there is a sufficient basis to find by a 21 preponderance of the evidence that the defendant used monetary 22 incentives to encourage Virginia to recruit Carolyn. 23 Paragraph 58, the defendant objects to the assertion 24 that Carolyn was 14 years old when Virginia brought her to 25 Epstein's residence, claiming that Carolyn's recollection is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021557 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page128 of 217 SA-382 M6SQmax1 13 1 inconsistent and unreliable. I overrule this objection. 2 Carolyn testified at trial that Virginia first brought her to 3 Epstein's residence when she was 14 years old. I found Carolyn 4 to be credible and credit her testimony. I'm not persuaded by 5 the arguments to the contrary. Moreover, @Sean's credible 6 testimony corroborated Carolyn's recollection. 7 Paragraph 59, the defendant makes two objections. 8 Same objection to Carolyn being 14. For the reasons I've 9 stated, that's overruled. She objects to Carolyn's assertion 10 that she visited Epstein's residence more than a hundred times. 11 I overrule that objection. Again, I credit Carolyn's 12 testimony. She testified that she went to the house "over 100 13 times." I reject the suggestion that this is improbable based 14 on Epstein's travel schedule. 15 Paragraphs 61 and 62 again object to Carolyn's age, 16 and I overrule for the same reasons. 17 Paragraph 64, three objections. First, the defendant 18 objects to Carolyn's assertion that she visited the Palm Beach 19 residence over a hundred times and her assertion that she was 20 14. For the reasons I've given, I overrule those objections. 21 She objects to the assertion that Carolyn stopped performing 22 sexualized massages in 2001 when she was 18 years old and 23 argues that the evidence indicates she was 17 years old. We're 24 going to take up the issue of this timing question with respect 25 to the issue of which Guidelines Manual controls. So I'll skip SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021558 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page129 of 217 SA-383 M6SQmax1 14 1 that for now. 2 Paragraph 72, defendant objects to the assertion that 3 Epstein briefly penetrated Carolyn's vagina with his penis 4 because her trial testimony the defense claims is contradicted 5 by a 2009 deposition testimony. I overrule this objection. 6 Again, I credit Carolyn's testimony. Carolyn plainly testified 7 to this at trial. 8 Paragraph 74, the defendant again objects to the 9 assertion as to the age and timing. Again, we'll pick up on 10 that issue when we discuss the appropriate guideline manual. 11 Paragraphs 75 and 76 the defendant objects to the 12 inclusion of these paragraphs in the presence report because 13 the perjury counts have not been presented to a jury, and so 14 she contends have no bearing on the sentence in this case. I 15 do overrule this objection. A sentencing court's discretion is 16 largely unlimited as to the kind of information it may 17 consider. It's free to consider evidence of uncharged crimes, 18 dropped counts of an indictment, criminal activity resulting in 19 acquittal in determining sentence. United States v. Bennett, 20 839 F.3d 153 (2d Cir. 2016). I may consider the information as 21 long as the information is reliable and accurate. For the 22 following reasons, I do conclude the information underlying the 23 severed perjury charges is reliable. The defendant testified 24 under oath in 2016 that she was not aware of Epstein's scheme 25 to recruit underage girls for sexual massages and other than SOUTHERN DISTRICT REPORTERS, P.C.... (212) 805-0300 DOJ-OGR-00021559 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page130 of 217 SA-384 15 M6SQmax1 1 Virginia, was unaware if she had interacted with anyone under 2 the age of 18 at Epstein's properties. She never gave Annie 3 Farmer a massage. She was unaware whether Epstein possessed 4 sex toys. She was unaware that he was engaging in sexual 5 activity with anyone other than her in the 1990s and 2000s. 6 She never gave Epstein a massage. The credible testimony and 7 evidence admitted at trial disproves these assertions which 8 were made under oath. 9 Paragraph 79, the defendant objects to the 10 characterization of the offense conduct as contrary to the 11 trial record. Here, defense hasn't provided any reason 12 specifying this, and I don't see one. So based on the written 13 objection, it's overruled. 14 Paragraph 81, the defendant objects to the assertion 15 that Ms. Maxwell had direct responsibility for any sexualized 16 massages that several women or any other people that Carolyn 17 may have brought to Epstein's residence may have performed, and 18 she contends there's no record that she interfaced with these 19 individuals. I am prepared to overrule that objection. 20 The paragraph makes clear that these individuals did 21 not interact directly with Ms. Maxwell. Nevertheless, for the 22 reasons explained a little while ago in overruling the 23 objections to paragraphs 27 and 28, I do conclude that the 24 evidence at trial established that the defendant's recruitment 25 of Virginia set the recruitment scheme in motion that resulted SOUTHERN DISTRICT REPORTERS, P.C... (212) 805-0300 DOJ-OGR-00021560 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page131 of 217 SA-385 M6SQmax1 16 1 in the abuse of these individuals. 2 Paragraph 82, the objection is to the assertion that 3 the records recovered from the Palm Beach residence during the 4 2005 search reveal that additional minors provided Epstein with 5 sexualized massages between 2001 and 2004. Again, I overrule 6 the objection. The trial record including message pads, phone 7 book entries, and testimony of witnesses establishes by a 8 preponderance that the information contained in this paragraph 9 is accurate. 10 Paragraph 83, so there was a revision here. I'm not 11 sure if there is a continuing objection, Mr. Everdell. The 12 previous objection was to the assertion that the defendant is 13 responsible for the victimization of untold number of other 14 victims. The probation department adopted the government's 15 suggestion, revised the paragraph to assert that the defendant 16 is responsible for the victimization of additional minor 17 victims. To the extent there is a continuing objection, I 18 overrule it for the reasons stated regarding paragraphs 27 and 19 28. 20 Paragraph 85 is an objection to the inclusion of 21 Kate's victim impact statement and her status under the CVRA. 22 We have litigated the question of Kate's ability to make a 23 statement here. I believe that defense's ultimate position was 24 that with the requested redactions, there were no objections to 25 her making a statement. Do I have that right? SOUTHERN DISTRICT REPORTERS, P.C... (212) 805-0300 DOJ-OGR-00021561 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page132 of 217 SA-386 M6SQmax1 17 1 MR. EVERDELL: That's correct, your Honor. 2 THE COURT: So I did reject the request for redactions 3 for the reasons explained in my order. And as I explained in 4 overruling the objection to paragraphs 39 to 45, Kate's 5 testimony and her statement are relevant to sentencing which 6 I've indicated she may give. And with that, there's objections 7 pertaining to fine and assets and the like. I think we can 8 turn to those when we get to the fine. Mr. Everdell, okay with 9 that? 10 MR. EVERDELL: Yes, your Honor. So we'll delay the 11 offense level calculation objections and the ones related to 12 the financial penalties for now? 13 THE COURT: Yes, precisely, and we'll pick those up. 14 I think otherwise that's it for what I understand to be 15 continuing objections after probation responded to your 16 requests and assertions. Agree with that, Mr. Everdell? 17 MR. EVERDELL: Your Honor, the only one that I would 18 highlight is there was an objection, I believe it's framed 19 according to paragraph 173, which deals with the financial 20 penalties. The government made in their response some 21 representations that we take issue with, but if you're planning 22 on covering that later, we can reserve that till later because 23 it does deal with the financial penalties. 24 THE COURT: Yes, I have objections to 172, 178, 192 25 and 193. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021562 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page133 of 217 SA-387 M6SQmax1 18 1 MR. EVERDELL: I guess in the final version, it 2 probably pertains to 172. 3 THE COURT: Thank you. 4 And with that, no further factual objections that need 5 resolution, Mr. Everdell? 6 MR. EVERDELL: Other than the ones we've just 7 discussed, no, your Honor. 8 THE COURT: Ms. Moe? 9 MS. MOE: No, your Honor. Thank you. 10 THE COURT: So, with those rulings, hearing no further 11 objections, with those rulings, I otherwise adopt the factual 12 recitations set forth in the PSR. As in all cases, the PSR is 13 sealed and made a part of the record in this matter. If an 14 appeal is taken, counsel on appeal may have access to the PSR 15 without further application to this court. 16 We'll turn now to the guideline calculation. As 17 counsel is aware, I am no longer required to follow the United 18 States Sentencing Guidelines, but I am still required to 19 consider the applicable guidelines in imposing sentence and 20 must therefore accurately calculate the Sentencing Guideline 21 range. The parties dispute multiple aspects of the guideline 22 calculation. 23 Just to outline the relevant overall calculations, the 24 defense contends that the correct guideline calculation is 51 25 to 63 months' imprisonment. The government contends that the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021563 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page134 of 217 SA-388 M6SQmax1 19 1 correct calculation is 360 to 660 months' imprisonment and 2 argues that a guideline sentence is warranted. 3 The probation department has calculated the range at 4 292 to 365 months' imprisonment, but recommends a downward 5 variance to a term of 240 months' imprisonment. 6 Counsel, I have reviewed your written arguments 7 carefully. I have a few questions I want to ask, but I don't 8 need to hear repetition of your written arguments, but I would 9 be happy to give you an opportunity to add anything beyond your 10 submission if you'd like to make any additional arguments. 11 I'll hear from you now, Mr. Everdell. 12 MR. EVERDELL: Thank you, your Honor. 13 I will largely rely on my written submissions. I just 14 would like to amplify one or two things. 15 Your Honor, our initial argument, of course, is that 16 the Court must resolve who is to make the determination about 17 which book like -- when the offense conduct ended, which 18 determines guidelines book applies: the 2003 or 2004 19 guidelines. We argue that that is a jury determination because 20 the issue implicates the Ex Post Facto Clause. So the 2003 21 guidelines must apply because the jury was never asked to make 22 that factual determination. 23 I know your Honor is familiar with the arguments we 24 raised. I would just point out that the government in their 25 response really did not engage with our arguments about the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021564 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page135 of 217 SA-389 M6SQmax1 20 1 issue of the Ex Post Facto Clause being implicated. They want 2 to cast this as purely a Sixth Amendment issue and cited cases 3 along the Apprendi lines. But this is an ex post facto issue 4 properly framed. This decision of when the offense conduct 5 ended implicates whether or not an ex post facto violation will 6 occur if the later guidelines is applied. 7 Under the cases that we've cited, your Honor, we think 8 that that is an issue for the jury to decide, and it is not 9 really in the Apprendi line of cases. It is focused on 10 ex post facto law. I just, for example, highlight for your 11 Honor the Tykarsky opinion that we cited for the Court. That 12 is not an Apprendi decision. That is not a Sixth Amendment 13 decision. In that case, there was an increase in the mandatory 14 minimum that took effect potentially after the offense conduct 15 ended. It's interesting that at the time the law was that you 16 could do that, a judge could make a finding and increase it as 17 long as it didn't increase beyond the statutory maximum, so 18 there was no Apprendi issue there. That decision later got 19 overruled by the Supreme Court, but at the time of Tykarsky, it 20 clearly wasn't a Sixth Amendment Apprendi issue. They resolved 21 that issue on an ex post facto basis. This decision about 22 whether or not the offense conduct ended at a certain time, if 23 it triggers an increase that implicates the ex post facto 24 clause is a decision for the jury to make. The government has 25 not responded to that argument, and we think that that is a SOUTHERN DISTRICT REPORTERS, P.C... (212) 805-0300 DOJ-OGR-00021565 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page136 of 217 SA-390 M6SQmax1 21 1 persuasive -- along with the other sources and opinions we've 2 cited, it's persuasive authority for the fact this is a jury 3 decision, not a Court determination. 4 THE COURT: Are you leaving that argument? 5 MR. EVERDELL: Yes, your Honor. 6 THE COURT: We'll do a little back-and-forth so I have 7 everybody's arguments in mind. Thank you. 8 Go ahead, Ms. Moe. 9 MS. MOE: Thank you, your Honor. 10 The government is confident the 2004 Manual applies in 11 this case. I believe we did engage with the ex post facto 12 issue thoroughly in our brief. The question is whether the 13 factual record at trial establishes that the offense continued 14 throughout the duration of 2004, which it emphatically did. 15 The testimony of a crime victim who testified at this trial 16 establishes that the offense conduct went past November 1, 17 2004. 18 THE COURT: So I think the framing of the question 19 here is very important and its technical -- this whole 20 discussion is very technical. It seems to me the question is 21 can the government point to a preponderance of the evidence 22 that conspiratorial conduct took place in this very small time 23 window, basically November and December 2004. That is what's 24 in issue, and the question is what the trial record establishes 25 with respect to that two-month window. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021566 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page137 of 217 SA-391 M6SQmax1 22 1 To some extent, the government points, I think, to post conspiracy conduct, and that concerns me. And so I would like to ask you to draw my attention to what in the trial record specifically speaks to November and December of 2004. 2 MS. MOE: Yes, your Honor. 3 As a threshold matter, the government's understanding that the case law is that the question is what is the end date of the conspiracy. In other words, if the conspirators are taking actions periodically over time, the question is what is the last date of the conspiracy? What does the trial evidence establish about the final date? And here the trial evidence was that the conspiracy was ongoing through all of 2004 and into 2005. 4 THE COURT: But to make that point, I think you're relying on post conspiracy evidence. 5 MS. MOE: No, your Honor. We're relying on evidence that exceeds the date in the indictment, but it -- 6 THE COURT: It exceeds also the date of Carolyn's 18th birthday. And so it's not just what the indictment charges -- 7 MS. MOE: Yes, your Honor. 8 THE COURT: -- but by a conspiracy that is dependent here on Carolyn being under 18 for its continuation. And so that's why I see what you're pointing to as post conspiracy, not only because it goes past what the indictment charged, but because I think legally you're pointing to non-conspiracy 9 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021567 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page138 of 217 SA-392 23 M6SQmax1 evidence. MS. MOE: No, your Honor. I think our point is that the conspiracy was still live at the end of 2004, and we know that because in fact the conspiracy was still ongoing beyond that, and I don't mean to be -- THE COURT: But, see, just in that sentence, the conspiracy was going on beyond that, what you point to, I think -- and tell me if I should look at something else, but what you point to to make that argument is definitionally non-conspiracy conduct. MS. MOE: No, your Honor, in part because -- well, to step back and discuss the framing of the issue. The question is whether a conspiracy was still ongoing throughout 2004. And the key thought tells us it's the defendant's burden to show that she withdraw from the conspiracy if it was ongoing. The question is in framing it, when did this conspiracy end. We know that it was still live as of the end of 2004, in fact, because, among other reasons, Carolyn testified that she was continually going to Epstein's house through age 17 and through age 18, which would have been throughout the duration of 2004 and 2005. The government is not required to show that any conspirator took an action in between those specific dates because the question is when did the conspiracy terminate? Was it still live at the end of 2004? And the evidence here shows SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021568 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page139 of 217 SA-393 M6SQmax1 24 1 that it certainly was. The message pads show that Carolyn was 2 still going to the house. Her testimony establishes that she 3 was still going to the house throughout that time period. We 4 do not agree that we're required to show that any conspirator 5 took a specific act in that exact window but just that the 6 conspiracy was still live, and the fact that there were 7 additional acts ratifying membership of the conspiracy 8 throughout 2004 and into 2005 satisfies that burden. 9 THE COURT: Again, just to make sure I'm not missing 10 anything you want to point to, the into 2005 is pointing to 11 post conspiracy conduct. 12 MS. MOE: Post indictment conduct, your Honor. 13 THE COURT: Post indictment. Is it in some way not 14 post conspiracy? 15 MS. MOE: Well, your Honor, again, the question before 16 the Court, according to the application is when the did offense 17 end. 18 THE COURT: Ms. Moe, I do understand you're framing 19 that question. I'm asking record evidence question. Is there 20 something you're pointing to for your statement, the post 2005 21 which consists of conspiratorial conduct? 22 MS. MOE: I think separate from the 2005 evidence, we 23 would point to in the fall of 2004, a message from Carolyn in 24 November of 2004 showing that she was contacting the house to 25 make a scheduled appointment. SOUTHERN DISTRICT REPORTERS, P.C... (212) 805-0300 DOJ-OGR-00021569 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page140 of 217 SA-394 25 M6SQmax1 1 THE COURT: It's not dated November 2004; am I right? 2 It's on a page that has dates surrounding it of December, November. 3 MS. MOE: Yes, your Honor, all of the dates surrounding the message would be after November 1, 2004. The neighboring dates are November 13. There's a date in December. And I think looking at the message pads as a whole, it tells us they're dated essentially sequentially. 4 THE COURT: Is there any way to tell -- again, this is very technical -- if it's October and November? 5 MS. MOE: Your Honor, I'd be happy to take a look at physical book. I just have the sheet in front of me to see the page before and after, if the Court would like to examine it. 6 Our view is the combination of the message itself and the neighboring dates tell us it's November of 2004. In addition, as we noted in our brief, the defendant was still traveling with Epstein during this exact same time period. Again, it's the defendant's burden to establish withdrawal from an ongoing conspiracy, which they've not attempted to do, nor could they. 7 We think that the message pads, the flight records, the fact that the testimony of a crime victim Carolyn was that the conspiracy was ongoing more than meets this burden. 8 THE COURT: Okay. 9 MR. EVERDELL: Your Honor, if I could just respond to that. I do pick up on what the Court is saying, and we agree SOUTHERN DISTRICT REPORTERS, P.C... (212) 805-0300 DOJ-OGR-00021570 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page141 of 217 SA-395 M6SQmax1 26 1 with the point, which is we're focusing on the record evidence. 2 The conspiracy as charged requires there be to be a minor involved. Carolyn is not a minor in 2005. Her birthday is 3 January -- I don't know if I can say that, I'm sorry, but you understand it's at the beginning. 4 5 THE COURT: It's early. 6 MR. EVERDELL: It's early. So as of 2005, she is not a minor any more. So if we're looking to the end date of the 7 conspiracy that's charged in the indictment, that does not exist in 2005, and Carolyn is not a minor in 2005, that 8 evidence can't be used to support the end date of the conspiracy that is charged. 9 So what we're really talking about is one message pad that is undated, unverified, and not even in evidence. It's 10 not even properly authenticated. I would also point out -- it's not reliable, your Honor. But I would also point out that 11 I think we did have testimony that there were multiple message pads going on at any one time. The surrounding message pads 12 are not a perfect indicator of when that message would have been taken if it's undated. It could have been weeks, months 13 afterwards that someone decided to use that message pad to take that message instead of another of message pad that was ongoing 14 at the same time. So there is no reliable credible evidence that's the date of that message pad. 15 And so, your Honor, we cited a number of cases in our 16 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021571 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page142 of 217 SA-396 M6SQmax1 27 1 submission about the Court has to consider the weight and 2 reliability of the evidence when determining a factor -- a 3 sentencing factor that is going to increase the guidelines, 4 especially by the amount that this is going to increase it by. 5 And this one uncorroborated, unadmitted, unreliable message pad 6 is not sufficient for that purpose. So if we're relying on a 7 factual record argument, there is not enough of evidence in the 8 record to support that the conspiracy ended in November or 9 December of 2004. Therefore, the 2003 guidelines must apply. 10 11 THE COURT: Okay. I have a question about the leadership enhancement, as I said, but anything else you want 12 to raise that you didn't have the opportunity to raise in your 13 papers, Mr. Everdell? 14 MR. EVERDELL: Your Honor, just one point about that 15 same book issue. I think there was a section of the 16 government's brief where they were trying to show -- this was 17 the point about the Court's discretion. We argued the Court 18 has discretion to sentence as if it were the 2003 guidelines. 19 I realize that might not be where the Court is headed, but I 20 would point out -- 21 22 THE COURT: You mean as a variance argument. 23 MR. EVERDELL: Exactly. In that section, the 24 government made reference to an argument that the defendant was 25 receiving money into the 2007 time period. I believe they pointed to $7 million. I think that is an extreme stretch, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021572 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page143 of 217 SA-397 28 1 your Honor. If the Court remembers the record evidence, there 2 was some evidence of money moving, but it was to buy a 3 helicopter that was not for her. We heard testimony from Larry 4 Visoski that he often kept assets of cars in his name for 5 Mr. Epstein. That doesn't make Larry Visoski a participant in 6 the criminal endeavors. I think it's a stretch for the 7 government to point to that as some sort of evidence of 8 continued involvement or continued profit after the end date of 9 the conspiracy. I just wanted to make that one point, your 10 Honor. 11 THE COURT: Anything on that, Ms. Moe? 12 MS. MOE: Your Honor, with respect to the financial 13 transaction, we offered that along with other evidence to 14 refute the claim that the defendant had moved on, which, as we 15 noted, is an expression that has no legal meaning. And so 16 contrary to the assertion that the defendant had moved on and 17 was no longer associated with Epstein, the trial evidence 18 established that she remained a close associate for many years, 19 and that is the purpose for which we offered that evidence. 20 THE COURT: Understood. Thank you. 21 I do want to address -- do you have other -- I want to 22 ask about 3(b)(1). 23 MR. EVERDELL: Yes, your Honor. 24 THE COURT: I think it's for the government. So as I 25 see the question here, the guidelines require me to find that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021573 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page144 of 217 SA-398 29 1 the defendant was an organizer or leader, and that the criminal 2 activity either involved five or more participants or was 3 otherwise extensive. The guidelines defines a participant as a 4 person who is criminally responsible for the commission of the 5 offense but need not have been convicted. 6 So I think my question for the government is, you're 7 asking the Court to look to as a criminally responsible -- a 8 person who is criminally responsible for the commission of the 9 offense over whom Ms. Maxwell exercised supervisory or 10 leadership role. 11 MS. MOE: Yes, your Honor. As we noted in our 12 briefing, our view is that the trial evidence establishes that 13 the defendant had a supervisory role over Sarah Kellen. Here, 14 we're not required to establish that there were five or more 15 participants; that is, people who were criminally responsible 16 for the charged conduct, but rather that it was extensive, and 17 that the defendant supervised at least one other person. 18 That's the text of the commentary, although as we noted, the 19 Second Circuit in applying this factor hasn't really engaged 20 with that from what we can tell, but on the factual question of 21 the trial record and whether it establishes the defendant 22 supervised another participant, it absolutely does. 23 THE COURT: And the government is pointing to Sarah 24 Kellen for that conclusion, which you agree, there has to be 25 one criminally responsible participant who we can point to. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021574 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page145 of 217 SA-399 M6SQmax1 30 1 MS. MOE: Yes, your Honor. Looking at the text of the 2 application note -- again, it's unclear from some case law on 3 this, but under the text of the application note, if we're 4 looking to one criminal participant, we would direct the 5 Court's attention to Sarah Kellen. THE COURT: And the leadership over her as opposed to 6 7 Epstein being the leader over her or them being -- Kellen sort 8 of replacing the defendant's role, could you focus my mind on 9 what specifically you point to to show supervision and 10 leadership by Ms. Maxwell over Ms. Kellen. MS. MOE: Yes, your Honor. 11 12 The trial evidence was that Sarah Kellen became an 13 assistant, and that she worked for both Maxwell and Epstein. 14 Essentially, when you look at defendant's role in earlier 15 years, she was doing things like calling victims and arranging 16 for massage appointments. As the scheme shifted, they brought 17 in another member of the scheme beneath them in the structure 18 and hierarchy of the scheme. The defendant remained a close 19 associate. She was often traveling with them, often traveling 20 with Kellen together. So as Kellen took on some of the tasks 21 that were then delegated to a lower member of the conspiracy, 22 the defendant was higher up in the leadership structure. There wasn't direct evidence about, you know, the 23 24 defendant directly instructing Kellen to make a certain phone 25 call, and we acknowledge that, but we think the inference is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021575 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page146 of 217 SA-400 M6SQmax1 31 1 very clear that when you have two knowing conspirators, Maxwell 2 and Epstein, and they bring in a much younger woman as an 3 assistant and have her take on some of those roles while the 4 defendant remains a lady of the house in the hierarchy of the 5 structure to whom a person like Sarah Kellen would report, that 6 she has leadership of that person; that she is directing that 7 person; that she has control. Even the simple task of 8 directing her to take on some of those responsibilities, which, 9 of course, to transition parts of that role she would have to 10 do would qualify for leadership. 11 THE COURT: And there's clear time overlap in the 12 role? 13 MS. MOE: Yes, your Honor. As we noted in our brief, 14 the flight records reflect that the defendant continued flying 15 on Epstein's private jet at the same time that Sarah Kellen was 16 also traveling, and that there was an overlap in the years of 17 the time period where they were all close associates of Jeffrey 18 Epstein and the scheme was ongoing. 19 THE COURT: Go ahead. 20 MR. EVERDELL: Yes. Your Honor, before I address the 21 Sarah Kellen point, I would just make the point that the 22 government seems to argue that there is some case law that is 23 not clear that you don't have to necessarily show that they're 24 supervising another criminal participant. That's just wrong. 25 All those cases that the government cites, the issue has SOUTHERN DISTRICT REPORTERS, P.C... (212) 805-0300 DOJ-OGR-00021576 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page147 of 217 SA-401 M6SQmax1 32 1 already been decided or conceded by the defendant. The court 2 found they were leader or the defendant didn't contest that, so 3 the issue was only about whether the criminal activity was 4 otherwise extensive. So that is not -- that is clear under 5 Second Circuit law, that they have to supervise another 6 criminal participant, and it's clear from the guidelines too, 7 as the government concedes. 8 Let's just talk a bit about Sarah Kellen. I don't 9 think it is a fair inference to say from the trial record that 10 Ms. Maxwell was supervising Sarah Kellen. In fact, the 11 inference is exactly the opposite. And you can rely on 12 Carolyn's testimony alone for that; that she herself testified 13 that there was a clear break between when she says that 14 Ms. Maxwell was calling her to schedule for massage 15 appointments versus when Sarah Kellen took over and scheduled 16 for massage appointments. They did not overlap. There was a 17 break. That is corroborated by Juan Alessi no less, who said 18 the same thing. He said Sarah Kellen came at the end of my 19 employment, to his recollection, and as soon as she got there, 20 she took over the responsibility of scheduling the massage 21 appointments. Again, a clear break. 22 What the record shows is that there was a replacement. 23 Sarah Kellen replaced Ms. Maxwell, at least according to the 24 trial testimony; not that there was some sort of ongoing 25 supervision by Ms. Maxwell over Sarah Kellen. It couldn't be SOUTHERN DISTRICT REPORTERS, P.C... (212) 805-0300 DOJ-OGR-00021577 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page148 of 217 SA-402 M6SQmax1 33 1 clearer, your Honor, this notion that she was somehow -- Sarah Kellen was an assistant of both Epstein and Maxwell is again belied by the trial record. 4 If you look at Larry Visoski's testimony, which I believe is what the government is relying on there, he originally testified, oh, I think she was an assistant for both. But on cross-examination, he conceded that he really didn't know what her role was, and his best recollection was that she was an assistant for Epstein. 10 And again, just look again at Cimberly Espinosa's testimony who was the actual assistant for Ms. Maxwell, and she says unequivocally, "I was her assistant. Kellen was Epstein's assistant." So there is no fair inference that Ms. Maxwell was supervising Sarah Kellen. The inference is exactly the opposite, and it can't provide a basis for that leadership enhancement. 17 THE COURT: All right. Anything further on the enhancements for the government's objection? 19 MS. MOE: Your Honor, just very briefly with respect to the leadership question, I just want to direct the Court's attention, we noted this on page 27 of our brief, but the testimony at trial was that Carolyn recalled that even after Sarah Kellen took over calling to schedule massages, Maxwell was still present inside the Palm Beach residence when Carolyn arrived for massage appointments. 25 SOUTHERN DISTRICT REPORTERS, P.C... (212) 805-0300 DOJ-OGR-00021578 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page149 of 217 SA-403 M6SQmax1 34 1 With respect to the testimony of the pilots who 2 testified, whether they -- whether an employee was paid by 3 Maxwell or Epstein or technically reported to one, according to 4 their job descriptions, is not the question here. The fact 5 that pilots based on their observation thought at one point 6 that Kellen reported to Maxwell proves the point that she had 7 supervisory authority over Kellen and exercised it, whether in 8 the chain of command or on their formal employment paperwork, 9 she was just an employee for one or the other, it makes no 10 difference. There was an overlap here. They had different 11 roles in the conspiracy, and the defendant had a supervisory 12 roll over Kellen. 13 MR. EVERDELL: Your Honor, just to that point. Being 14 present does not mean that you're a supervisor. That's way too 15 far a stretch. So the fact that there was testimony she was 16 present still in the house while Kellen was making the calls 17 and scheduling the massage appointments means nothing in terms 18 of supervisory authority. 19 THE COURT: Thank you. Other enhancements before the 20 government's objection is to be addressed. 21 MS. MOE: No, your Honor. Thank you. 22 MR. EVERDELL: Your Honor, I assume you don't want to 23 hear or have any questions about the five-point enhancement for 24 repeated and dangerous sex offenders. 25 THE COURT: I believe I have what I need, but as I SOUTHERN DISTRICT REPORTERS, P.C... (212) 805-0300 DOJ-OGR-00021579 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page150 of 217 SA-404 35 M6SQmax1 1 said, I don't need repetition of the arguments in the papers, 2 but if there is any additional points you want to make, you're 3 welcome to. 4 MR. EVERDELL: Your Honor, just one point. I will be 5 brief. The government in its papers makes the argument that 6 the background commentary can't be relied upon as authoritative 7 because it is not explanatory or interpretative of what the 8 guideline is. I think that is incorrect. 9 It is not simply a recitation of what Congress was 10 considering. That first sentence or two which talks about how 11 this guideline can only be applied to offenders who represent a 12 continuing danger to the community is interpretative of what 13 the guideline is. The title of the guideline is repeat and 14 dangerous sex offenders. That explanatory commentary explains 15 how to interpret what dangerous means. It means someone who is 16 continuously dangerous to the community, not someone who's 17 never been accused of a crime in the 18 plus years since the 18 crime in this case, and has never been accused of re-offending. 19 So I don't agree with that point. This is authoritative 20 guidance from the Sentencing Commission, and the Court should 21 consider it as such. Thank you. 22 THE COURT: Ms. Moe, do you want to respond? 23 MS. MOE: No, your Honor. We rest on our briefing on 24 this issue, but thank you. 25 THE COURT: Thank you. Anything else? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021580 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page151 of 217 SA-405 36 M6SQmax1 1 MR. EVERDELL: No, your Honor. We rest on the papers. 2 THE COURT: I thank you counsel for your thorough 3 briefing. I am prepared to rule. 4 The defendant raises four objections to the 5 calculation of the guideline range contained in the PSR. As we 6 discussed, first, she argues I must apply the 2003 guidelines 7 rather than the 2004 guidelines. Beyond that, she objects to 8 the application of three sentencing enhancements. The 9 government's sole objection to the calculation of the 10 guidelines is that Virginia Roberts and Melissa should be 11 considered victims. So I will address the defense objections 12 and then the government's objections. 13 I begin by determining which of the Guideline manuals 14 apply. Generally, a sentencing court applies the version of 15 the guidelines in effect on the date that the defendant is 16 sentenced. 18 U.S.C. Section 3553(a)(4)(A)(ii). But the 17 Ex Post Facto Clause is violated if a defendant is sentenced 18 under Guidelines issued after she's committed her offense and 19 the new Guidelines provide a higher sentencing range than the 20 version in place at the time of the offense. That's the 21 principle of a case called Peugh v. United States, 569 U.S. 530 22 (2013). In that case, a sentencing court must -- in the case 23 of a higher range at the time of sentencing than in place at 24 the time of the offense, in that case the sentencing court must 25 apply the guidelines in effect when the offense was committed. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021581 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page152 of 217 SA-406 M6SQmax1 37 1 United States v. Guerrero, 910 F.3d 72 (2d Cir. 2018). Here, 2 the parties and the probation department agree that applying 3 the current Guidelines would result in a significantly longer 4 sentence than the application of the guidelines in place when 5 the defendant committed her offense, whether that is the 2003 6 or 2004 guidelines. 7 8 The controlling date for ex post facto purposes is the 9 last date of the offense of conviction. The 2004 Guidelines 10 became effective on November 1, 2004. So I must determine if 11 the last date of the offense was after November 1, 2004. 12 Because it seeks an increased punishment, the government bears the burden of persuasion. The government 13 charged a decade-long conspiracy of sexual abuse that the 14 indictment alleged ended in 2004. It's proof at trial that the 15 conspiracy continued in 2004 related to Carolyn. And the 16 charged conspiracy had to end no later than very early 2005 17 because that's when Carolyn turned 18 and can no longer be 18 deemed a victim of the federal sex-trafficking offense charged 19 which proscribes conduct with respect to individuals under the 20 age of 18. So the government purports to carry its burden on 21 this issue based on portions of Carolyn's testimony and some 22 message pads regarding what occurred in 2004 and 2005. 23 24 Let me state clearly, I found, as I said repeatedly in 25 my factual conclusions on the PSR objections, I found Carolyn 26 to be a credible witness, as did the jury. The question before SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021582 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page153 of 217 SA-407 M6SQmax1 38 1 me is specific and highly technical. Does the preponderance of 2 the evidence demonstrate that the offense to sex traffic 3 Carolyn continued after November 1, 2004 before she turned 18 4 in early 2005? In other words, does a preponderance of the 5 evidence establish that acts in furtherance of the conspiracy 6 to traffic Carolyn occurred in either November or 7 December 2004? Although Carolyn testified regarding contact 8 earlier in 2004 and after she turned 18 in 2005, there is no 9 evidence, either in the form of testimony or documentary 10 evidence, including the message pads, that demonstrates by a 11 preponderance of the evidence conspiratorial conduct during 12 those last two months of 2004 before Carolyn turned 18 in 2005. 13 In those portions of Carolyn's testimony cited by the 14 government, Carolyn stated that she was 18 years old the last 15 time she went to Epstein's house, which would have been in 16 2005. As Carolyn further explained, she returned more than 17 four or five times to Epstein after she gave birth to her son 18 in March of 2004, and that testimony is supported by message 19 pads entered at trial that show Carolyn called Epstein several 20 times in the summer of 2004: Once in late April or early May 21 again on July 6, and again on July 30. When she did return to 22 Epstein, Carolyn testified Epstein asked if she had younger 23 friends, and she explained during her testimony that at 18 24 years old, she was too old for him. Carolyn wasn't asked, and 25 her testimony doesn't specifically address, whether she went to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021583 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page154 of 217 SA-408 M6SQmax1 39 1 Epstein's house after November 2004 before she turned 18. 2 Message pads entered at trial show contact only before 3 November 1. 4 The government's reliance on two additional pads that 5 were not entered into evidence doesn't change my analysis. The 6 first message GX-4B, it's undated, and the context does not 7 give sufficient confidence that it came after November 1. The 8 other message pad is dated March 1, 2005, which falls outside 9 the scope of the conspiracy alleged in the indictment, and 10 after Carolyn turned 18. Because I cannot on this record find 11 by a preponderance of the evidence that the offense continued 12 during that two-month window after November 1, 2004, and before 13 early 2005, I must apply the 2003 guidelines. Because I find 14 that the date of the offense was not after November 1, 2004, I 15 do not address the defendant's alternative argument that a jury 16 must decide if the 2004 Guidelines apply. 17 Within the Guidelines themselves, the defendant 18 objects to the application of three enhancements in the PSR. 19 She takes issue first with 4B1.5(b). The enhancement 20 statements that the offense level is increased by five if: 21 One, the offense of conviction is a covered sex crime; two, 22 4B1.5(a) for prior convictions does not apply; three, the 23 defendant engaged in a pattern of activity involving prohibited 24 sexual conduct. All three requirements are met: The defendant 25 was convicted of a covered sex crime; she was not previously SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021584 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page155 of 217 SA-409 M6SQmax1 40 1 convicted of a sex crime; and I readily find she engaged in a 2 pattern of activity involving prohibited sexual conduct. 3 Specifically, the Guidelines define a pattern of such activity 4 as the defendant engaging in prohibited sexual conduct with a 5 minor on at least two separate occasions. 6 The defendant doesn't contest any of these enumerated 7 requirements. Rather, she argues that I may apply this 8 enhancement only if I further find that the defendant poses a 9 continuing danger to the public. Here, the defense draws this 10 requirement from background commentary by the Sentencing 11 Commission and a few statements made by members of the Congress 12 who emphasized high recidivism rates in enhancing sentences 13 for sex offenders. 14 I overrule this objection because it lacks any basis 15 in the Guidelines. As with all interpretive matters, I start 16 with the text of the Guidelines. If the text is unambiguous, I 17 apply it as written and do not resort to background commentary. 18 United States v. Sash, 396 F.3d 515 (2d Cir. 2005). Commentary 19 cited by the defendant simply provides policy rationale for a 20 particular enhancement. It does not purport to interpret the 21 Guidelines and so is not binding. Nor can scattered 22 legislative history override the clear text of the Guidelines, 23 especially when that history amounts to only a few short floor 24 statements which are "among the least illuminating forms of 25 legislative history." NLRB v. SW General, Inc. 137, S. Ct. 929 SOUTHERN DISTRICT REPORTERS, P.C.... (212) 805-0300 DOJ-OGR-00021585 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page156 of 217 M6SQmax1 41 1 (2017). 2 Moreover, the defendant fails to prove that 4B1.5(b) 3 was enacted only to prevent future danger to the public. 4 Background commentary explains that aside from recidivism, 5 Congress "directed the Commission to ensure lengthy 6 incarceration for offenders who engage in a pattern of activity 7 involving the sexual abuse or exploitation of minors." That's 8 4B1.5 comment background. 9 Further, the legislative history quoted by the 10 defendant says that Congress increased Guidelines sentence for 11 sexual abuse of minors "to address the egregiousness of these 12 crimes." And, in fact, the defendant's brief cites that I 13 believe at 12. Thus, I find no basis for a requirement that I 14 must first find the defendant to be a public danger before 15 applying the enhancement. The defendant's remaining argument 16 that applying this enhancement would result in an excessive 17 sentence is appropriately considered as part of the defendant's 18 request for a downward variance. 19 Next the defendant objects to the application 20 3B1.1(a), which we've discussed, which adds four offense levels 21 for her leadership role in a criminal activity. "a court must 22 make two specific factual findings before it can properly 23 enhance a defendant's offense level under 3B1.1(a): (i) that 24 the defendant was an organizer or leader; and (ii) that the 25 criminal activity involved five or more participants or was SOUTHERN DISTRICT REPORTERS, P.C... (212) 805-0300 DOJ-OGR-00021586 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page157 of 217 SA-411 M6SQmax1 42 1 otherwise extensive." Quoting from United States v. Patasnik, 2 89 F.3d 63 (2d Cir. 1996). The Guidelines define a participant 3 as a person who is criminally responsible for the commission of 4 the offense, but need not have been convicted. That's Section 5 3B1.1, comment note 1. And in assessing whether criminal 6 activity is extensive, all persons involved during the course 7 of the entire offense are to be considered, including persons 8 who provided services unknowingly. Comment note 3. 9 The defendant argues that she did not lead another 10 criminal participant. I overrule this objection because I do 11 conclude that the government has proved by a preponderance that 12 the defendant supervised Sarah Kellen, who was a knowing 13 participant in the criminal conspiracy. 14 Larry Visoski and David Rodgers both testified for 15 that at least part of the time period at issue Sarah Kellen 16 acted as a personal assistant to the defendant. I credit that 17 testimony which is corroborated by further testimony that the 18 defendant was Epstein's number two and the lady of the house. 19 At some point, Kellen took over some of the defendants duties. 20 But even after that time, the defendant retained her leadership 21 position, as evidenced by Carolyn's testimony, by flight 22 records in evidence, and the household manual in evidence. I 23 do conclude by a preponderance of the evidence that the 24 defendant led a criminally responsible participant. 25 I further find that the defendant's criminal activity SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021587 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page158 of 217 SA-412 M6SQmax1 43 1 was extensive. Whether criminal activity is extensive is based 2 primarily on the number of people involved, criminally and 3 noncriminally, rather than on other possible indicators of the 4 extensiveness of the activity. District courts must determine 5 the number of knowing participants in the criminal activity, 6 the number of unknowing participants whose activities were 7 organized or led by the defendant with specific criminal 8 intent, and the extent to which the services of the unknowing 9 participants were peculiar and necessary to the criminal 10 scheme. For example, a taxi driver that drives a defendant to 11 a crime scene would not count. That is an example from a case 12 called Carrozella, 105 F.3d at 804. 13 At all relevant times, the conspiracy proved at trial 14 included at least two knowing participants: Epstein and the 15 defendant. Beginning in 2002, Sarah Kellen joined, and 16 beginning in approximately 2001, additional minor victims were 17 recruited through Virginia and Carolyn. Additionally, trial 18 evidence established that services were unknowingly provided by 19 various Epstein employees. For example, I credit Juan Alessl's 20 testimony that following the defendant's instructions, he 21 scheduled massage appointments, set up the massage table for 22 appointments, cleaned up after sexualized massages, and on at 23 least one occasion drove Virginia to an appointment. 24 Additionally, both Visoski and Rodgers were employed 25 as Epstein's pilots over the same time period as the counts of SOUTHERN DISTRICT REPORTERS, P.C... (212) 805-0300 DOJ-OGR-00021588 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page159 of 217 M6SQmax1 44 1 conviction. Visoski testified that Maxwell partially owned the 2 jet, and both pilots testified that she would tell them when to 3 fly Epstein or schedule flights for herself. The evidence at 4 trial demonstrates that Epstein and the defendant had the 5 pilots fly victims of the conspiracy. Across the timeframe of 6 all counts of conviction, Alessi, Visoski and Rodgers provided 7 personalized services that were peculiarly tailored to the 8 defendant's offenses and were not fungible services generally 9 available to the public. Again, I'm citing from the Carrozzella 10 case, 105 F.3d at 804. 11 In addition to these unknowing participants that testified at 12 trial, I find by a preponderance of the evidence that there were 13 other unknowing persons led by Maxwell. As Epstein's number one, 14 Ms. Maxwell managed Epstein's numerous households and interviewed, 15 hired and oversaw the household staff. The defendant had her own 16 personal assistants, like Sarah Kellen and another individual. 17 From the record, I can't determine the precise number of these 18 other individuals that unknowingly assisted Epstein and the 19 defendant in their criminal activity, but I find an adequate basis 20 in the record that the number is sufficient to make the activity 21 extensive within the meaning of 3B1.1(a) from 1994 to 2004. See 22 United States v. Archer, 671 F.3d 149 (2d Cir. 2011). 23 Last, the defendant objects to enhancement 2G1.1(b)(4)(B). 24 That provision increases the offense level by 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021589 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page160 of 217 M6SQmax1 45 1 two if a participant unduly influenced a minor to engage in a 2 commercial sex act. In defining the enhancement, the 3 Commission instructs courts to closely consider the facts of 4 the case to determine whether a participant's influence over 5 the minor compromised the voluntariness of the minor's 6 behavior. 2G1.1, comment note 7. And if the participant is at 7 least ten years older than the minor, there is a rebuttable 8 presumption that the participant unduly influenced the minor to 9 engage in a commercial sex act. I overrule the defendant's 10 objection. 11 The defendant first says the undue influence 12 enhancement would punish her for the same harm already counted 13 in her base offense level. Impermissible double counting 14 occurs when a guideline enhancement is applied to reflect the 15 kind of harm that's already fully accounted for elsewhere in 16 the Guidelines but does not occur if the enhancement aims at 17 differing harms emanating from the same conduct or reflects 18 different facets of the defendant's conduct. United States v. 19 Watkins, 667 F.3d 254 (2d Cir. 2012). There isn't double 20 counting here. The 2G1.1(a) base offense level reflects the 21 aggregating factor that the victim of the defendant's sex 22 offense was minor. The enhancement, by contrast, reflects 23 the use of undue influence to engage in a commercial sex act. 24 I'll cite a few cases that stand for that proposition, 25 including United States v. Kohlmeier, 858 F. App'x, 444 (2d SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021590 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page161 of 217 M6SQmax1 46 1 Cir. 2021) (summary order). Similar conclusion, United States 2 v. Smith, a Ninth Circuit case from 2013, 719 F.3d 1120. That 3 case explains 2G1.3(a) base offense level and the undue 4 influence enhancement "serve unique purposes under the 5 Guidelines." 6 The defense argues that because the enhancement 7 applies only if undue influence was exerted with the aim of a 8 commercial sex act, it does not apply here. But the jury in 9 Count Six did convict the defendant of sex trafficking Carolyn 10 to participate in commercial sex acts. The Court finds that 11 Virginia Roberts, who brought Carolyn and Melissa who was 12 brought by Carolyn similarly were paid. The remaining victims, 13 including Jane and Annie, also testified that they received 14 money and gifts during their abuse which satisfies the 15 enhancement. 16 The defendant argues Carolyn was not unduly influenced 17 to sexually massage Epstein. I find this argument meritless. 18 The age gap between Carolyn and Epstein and the defendant far 19 exceeded ten years, and the defendant does not rebut the 20 resulting presumption of undue influence. 2G1.1, comment note 21 7. Carolyn testified she was paid to give Epstein sexualized 22 massages, and she needed the money for her drug addiction. 23 Later, Carolyn returned to Epstein because she needed the money 24 for herself and her newborn son. Plainly, taking advantage of 25 a victim's financial need is a form of undue influence. I'll SOUTHERN DISTRICT REPORTERS, P.C... (212) 805-0300 DOJ-OGR-00021591 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page162 of 217 SA-416 M6SQmax1 47 1 cite some cases for that proposition. Watkins 667 F.3d at 265; 2 United States v. Streb, 36 F.4th 782. That's and Eighth 3 Circuit case from 2022. Courts have repeatedly concluded that 4 a minor can be the victim of undue influence even if the minor 5 initiates a sexual meeting. See, for example, United States v. 6 Lay, 583 F.3d 436 (6th Cir. 2009). I therefore overrule the 7 defendant's objection. 8 9 I next turn to the government's only objection to the 10 PSR Guideline calculation. I do find that Virginia Roberts and 11 Melissa were minor victims of sex offenses -- they were 12 trafficked and abused by the defendant and Epstein during the 13 charged period. The Guidelines require that each minor victim 14 be considered a separate count of conviction. 2G1.1.(d)1. 15 Probation department excluded Virginia and Melissa from this 16 provision only because they were not named in the indictment. 17 This is an incorrect basis for excluding them from the 18 calculation. Relying on commentary by the Commission, the 19 Second Circuit has instructed "that conduct against victims 20 other than those charged in the indictment may constitute 21 relevant conduct, and, if such conduct qualifies, should be 22 treated for sentencing purposes as though it occurred in a 23 separate count of conviction." I United States V. Wernick, 24 691, F.3d 108 (2d Cir. 2012) (citing 2G1.1 comment note 4). I 25 therefore consider Virginia and Melissa as two additional 26 groups of victims and assign each a unit under Section 3D1.4. SOUTHERN DISTRICT REPORTERS, P.C... (212) 805-0300 DOJ-OGR-00021592 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page163 of 217 SA-417 M6SQmax1 48 1 Having resolved the parties' objections, I will 2 calculate the Guideline range. As explained, I will use the 3 2003 Guidelines manual. Following Section 2G1.1(d)(1), each 4 victim is considered a separate count of conviction. In 5 addition to the three victims for which an offense level was 6 calculated in the PSR -- Jane, Annie, and Carolyn -- I 7 calculate offense levels, for Virginia and Melissa, coming to a 8 total of 5 groups. 9 For all groups, the base offense level is 19. That's 10 Sections 2G1.1(a) and 2X1.1(a). 11 For Jane and Carolyn, because they were older than 12 12 but were not yet 16 when abuse began, the offense level is 13 enhanced by 2. 2G1.1(b)(2)(B). 14 The offense level for Jane and Carolyn is further 15 enhanced by 2 because they were unduly influenced into a 16 commercial sex act. 2G1.1(b)(4)(B). 17 For Annie, Virginia, and Melissa, who were at least 18 16, the offense level is increased by 2 because they were 19 unduly influenced into a commercial act. 2G1.1.(b)(4)(B). 20 The offense level for all groups are also enhanced by 21 4 points because of the supervisory role in an extensive 22 criminal activity. 3B1.1(a). 23 This brings the total offense level for Jane's and 24 Carolyn's groups to 27. And Annie's, Virginia's and Melissa's 25 groups each to 25. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021593 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page164 of 217 SA-418 M6SQmax1 49 1 Because there are multiple counts, all within at least 2 four offense levels of each other, I determine 5 units under 3 3D1.4(a). And under 3D1.4, 5 units increases the total offense 4 level of the group with the highest total offense level by 5 5 from 27 to 32. 6 Last, because the defendant engaged in a pattern of 7 activity involving prohibited sexual conduct, the total offense 8 level is increased by 5 from 32 to 37. 4B1.5(b)(1). 9 In conclusion, I find the correct total offense level 10 under the 2003 Guidelines is 37. 11 No party disputes the defendant's Criminal History 12 Category of I. 13 Under the 2003 Guidelines, a Criminal History Category 14 of I and total offense level of 37, produces a guideline range 15 of 210 to 262 months' imprisonment. 16 The range for the fine, again, under the 2003 manual 17 is $20,000 to $200,000 for each count. That's 5E1.2(c)(3). 18 The range for supervised release is three years to 19 life. 5D1.2(a)(1) and (c) and 18 U.S.C. 3583(k), although I 20 believe there is a -- yeah, I think that's supervised release. 21 I don't want to hear repeated objections, but any 22 objections based on anything I said that is new? 23 MS. MOE: Yes, your Honor. With respect to the unit 24 analysis, we wanted to note that under 3D1.4, a total of 5 25 units adds 4 levels, not 5 levels. I think the next layer on SOUTHERN DISTRICT REPORTERS, P.C... (212) 805-0300 DOJ-OGR-00021594 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page165 of 217 SA-419 M6SQmax1 50 1 the table is more than 5, as 5 levels. And, thus, the total 2 number would be 36. 3 THE COURT: I presume you agree with that, 4 Mr. Everdell? 5 MR. EVERDELL: Yes, your Honor. 6 THE COURT: Under the 2003 manual -- I see. The 7 highest total offense level, increase by 4 from 32 to 36. 8 MS. MOE: Yes, your Honor. Thank you. 9 THE COURT: Thank you, Ms. Moe. And that produces a 10 guideline range 188 to 235. 11 MS. MOE: Yes, your Honor. 12 MR. EVERDELL: We agree with that, your Honor. 13 THE COURT: Thank you. Same question to you, 14 Mr. Everdell. Preserving your objections, of course, but 15 anything new based on what I said? 16 MR. EVERDELL: Yes, your Honor. I don't think because 17 the government's response was the one added their request to 18 add Virginia and Melissa as separate groups, so we do object to 19 that. I know the Court has already ruled on that. We don't 20 think the record is adequate to make them separate offense 21 groups. I understand the Court has already ruled on that, but 22 we would like to preserve that objection. 23 THE COURT: Understood. Thank you. 24 Do you want to respond, Ms. Moe? 25 MS. MOE: Your Honor, I think the Court's rulings SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021595 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page166 of 217 M6SQmax1 51 1 addressing the factual objections speak directly to this issue. 2 The record at trial amply established that Melissa and Virginia 3 were victims of this conspiracy, and that the defendant had 4 been involved with recruiting Virginia, who in turn recruited 5 Carolyn, who in turn recruited Melissa. 6 With respect to Melissa in particular, we would not 7 that, like Virginia, her name appears in the defendant's little 8 black book, noting that she's a friend of Carolyn's. For all 9 those reasons, and the reasons in our brief, we think the trial 10 record amply establishes that they were both victims of the 11 conspiracy. 12 THE COURT: I agree with that, and for the reasons 13 indicated, do -- I agree with the government's objection to the 14 probation calculation for that reason. 15 I think that means we don't need to resolve the 16 factual objections that pertain to Carolyn's age. As I said, I 17 credit Carolyn's testimony. The objections I would overrule 18 because I think she accurately testified regarding her age both 19 in 2004 and 2005, but it doesn't answer the question, as I see 20 it, the legal question as to establishment of acts 21 conspiratorial conduct in the relevant two-month period. 22 With respect to fines, Mr. Everdell, what is now 23 paragraph 172 of the revised report, the defendant objects to 24 the inclusion a $10 million bequest from Epstein being included 25 in her assets for purposes of determining her ability to pay a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021596 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page167 of 217 SA-421 52 1 fine. I can't quite tell from the papers whether -- I know you 2 say the bequest is likely to be contested. What is the current 3 status of the bequest? 4 MR. EVERDELL: Your Honor, my understanding is that 5 the document says what it says, and the estate is undergoing 6 bankruptcy proceedings. I don't believe there is any -- this 7 issue has been addressed because I think the estate is still 8 dealing with victims' claims and other claims against the 9 estate. But because it's in bankruptcy, I assume that this 10 will be contested, and we don't know if there will be any money 11 left at the end of that proceeding to honor the bequest. So 12 that's one of the many reasons why I think this is such a 13 tenuous asset that it shouldn't be considered for purposes of 14 fines. 15 THE COURT: It's listed as an asset in the financial 16 affidavit, is it not? 17 MR. EVERDELL: It is, your Honor, because we felt we 18 wanted to fully disclose everything we know about, and we do 19 know about simply because we were produced that document. We 20 didn't know about it before. We knew about it because we got 21 it in discovery, and we saw it was there, so we felt in good 22 faith, we had to list it or at least disclose it, but I don't 23 think it should be considered for purposes of fine. 24 THE COURT: Ms. Moe, do you want to respond to that? 25 MS. MOE: Your Honor, I don't have additional SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021597 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page168 of 217 M6SQmax1 53 1 information about the status of the estate. With respect to 2 whether this information should be in the PSR, I think the 3 Court is exactly right. This is listed on an asset on her 4 balance sheet. Whether she ultimately recovers that amount or 5 not, it's listed in the same way that liabilities are listed 6 even though it may be uncertain as to how those are resolved. 7 So I don't think the objection is founded. 8 THE COURT: Yes, I'm going to overrule this objection 9 to the PSR paragraph. It is included as an asset in 10 Ms. Maxwell's financial aid affidavit. The uncertain assertion 11 that she may lose the asset is not a basis to exclude it from a 12 considered asset for purposes of determining a fine. 13 Paragraph 178, the assertion here is that she is 14 unable to pay a fine. 15 Do I have that right, Mr. Everdell? 16 MR. EVERDELL: Yes, your Honor. 17 THE COURT: I overrule the objection. Section 18 5E1.2(a) of the Guidelines requires the Court to impose a fine 19 in all cases except where the defendant establishes that she is 20 unable to pay and is not likely to become able to pay any fine. 21 The defendant has failed to establish this. As I just noted, 22 there is a $10 million bequest from Epstein this is in addition 23 to other assets noted in the PSR. 24 I will say the assets and finances have been a moving 25 target. In July 2020, Ms. Maxwell reported $3.8 million in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021598 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page169 of 217 SA-423 M6SQmax1 54 1 assets, and then reported $22 million in assets in support of 2 the December 2020 bail application. The claim now of an 3 inability to pay the fine, as I understand it, at the same time 4 in which the defense has not provided documentation of her 5 marriage or the purported pending divorce settlement. So I am 6 unpersuaded based on the balance of facts that the defendant is 7 indigent, and I do intend to impose a fine. 8 I will address restitution at the end. I understand 9 the government is not seeking restitution. So we will pick 10 that up at the end. 11 All right. With that, I'm going to take a break, and 12 then I will come back and hear from -- just fill a few 13 formalities. Neither of the papers make an argument for formal 14 downward departures, as I understood them. In any event, I've 15 considered whether there's an appropriate basis for departure 16 from the advisory range within the Guideline system and do not 17 find any grounds warranting departure under the Guidelines. 18 When we return with the Guideline calculation 19 complete, I will hear from the parties as to what they contend 20 a reasonable sentence is for Ms. Maxwell, taking into account 21 the 3553(a) factors. 22 It's 12:30, which is a shocking fact to me. I suppose 23 we should take a 30-minute break so that everyone can get 24 lunch, as I imagine we still have a fair amount of matters to 25 discuss and time to get through. So we'll take a 30-minute SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021599 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page170 of 217 SA-424 M6SQmax1 55 1 break. 2 Ms. Moe 3 MS. MOE: With respect to the sequence of events, just 4 so victims are aware, would the Court prefer to hear from 5 victims before the Court hears from the parties or after? We 6 defer to the Court, but it would be helpful to know for the 7 victims. 8 THE COURT: I was anticipating government, victim 9 statements, defense counsel and then Ms. Maxwell if she wishes 10 to make a statement. My staff did provide counsel for the 11 victims making statements an order in which they're speaking. 12 MS. MOE: Thank you, your Honor. 13 THE COURT: Any objection to that ordering, Ms. Moe? 14 MS. MOE: No, your Honor. Thank you. 15 THE COURT: Ms. Sternheim? 16 MS. STERNHEIM: I'm on now. No. Thank you. 17 THE COURT: I'll see you at 1:00. Thank you. 18 (Luncheon recess taken) 19 (Continued on next page) 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021600 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page171 of 217 SA-425 M6SQmaxS1 56 AFTERNOON SESSION 1:10 p.m. THE COURT: As I indicated, I'll hear first from the government as to what a reasonable sentence is under the 3553(a) factors. Ms. Moe, when you're ready. MS. MOE: Thank you, your Honor. May I take the podium? THE COURT: You may. Thank you. MS. MOE: Your Honor, Ghislaine first met Jane at summer camp in August of 1994. Jane was 14 years old. What Maxwell did in the years that followed to Jane and Kate and Annie and Virginia and Carolyn and Melissa, was almost unspeakable, but the truth came out in this case; and while many years have past, their pain is palpable, it's real, and it matters. Today we ask the Court to impose an above-guideline sentence of multiple decades in prison, a sentence that holds Maxwell accountable for the essential role she played in an extensive and disturbing child exploitation scheme. Maxwell trapped young girls in a horrifying nightmare. Her victims were vulnerable kids who found themselves alone in giant mansions where they were sexually exploited by adults they thought would help them. These girls were just kids. They were just finding their way in the world, trying to figure SOUTHERN DISTRICT REPORTERS, P.C... (212) 805-0300 DOJ-OGR-00021601 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page172 of 217 SA-426 M6SQmaxS1 57 1 out who they were and who they might be some day when they grew 2 up. These kids had hopes and dreams for their future and the 3 defendant used those dreams as her tool to abuse them. 4 5 We ask the Court to take an unflinching look at the 6 defendant's actions and consider what that tells you about who 7 she really is. What kind of person persuades young girls to 8 massage the feet of a middle-aged man? What kind of person 9 gets a 16-year-old girl all alone at a ranch in the middle of 10 nowhere and tells her to take off her clothes and get on a 11 massage table so that she can grope that girl's chest? What 12 kind of person teaches a 14-year-old girl how a middle-aged man 13 likes his penis to be touched? What kind of person sees a 14 17-year-old girl on the street and pulls over so that she can 15 persuade that girl to come to a house of horrors where that 16 young girl will be trafficked for sex? What kind of person 17 flies around on a plane with underage girls so that when her 18 boyfriend travels, he always has a young girl to touch? What 19 kind of person would use their privilege, their power in this 20 world to intentionally prey on the vulnerable, young girls from 21 struggling families: Girls without fathers, girls who needed 22 help. These are the actions of a person who was indifferent to 23 the suffering of other human beings. 24 25 The defendant's actions were not a one-time mistake; 26 not at all. Maxwell was an adult woman, and she made the 27 choice, week in, week out for years to commit crimes with 28 29 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021602 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page173 of 217 SA-427 M6SQmaxS1 58 1 Jeffrey Epstein, to be his right hand, to make his crimes 2 possible. Those choices were hers, and they have to have 3 serious consequences. 4 What's more, her actions portrayed a disturbing view 5 of the world we live in. To Maxwell there were two kinds of 6 people in this world: The people who really mattered and the 7 people who were disposable. Maxwell wanted to make sure that 8 she stayed among the people who she thought mattered. She 9 wanted to live a luxurious lifestyle jet-setting around the 10 world. She took millions of dollars from Epstein over the 11 years and that's because they were predators together, they 12 were partners in crime together, and they molested kids 13 together. 14 The defendant's actions had serious consequences for 15 her victims. These girls, now women, are strong. They have 16 shown the world what true bravery really is. But when the 17 defendant preyed on them, they were just kids, and they'll 18 carry with them for their entire lives the trauma of what 19 they've experienced. What is truly remarkable about this case, 20 your Honor, is that we don't have to speculate about the 21 lasting irreparable harm that the defendant's actions have had. 22 You have seen for yourself the devastating effects of the 23 defendant's crimes and how much her actions have affected her 24 victims even years later. 25 The defendant has shown absolutely no remorse for her SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021603 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page174 of 217 SA-428 M6SQmaxS1 59 1 crimes. She has not owned up to the truth. She has lied 2 repeatedly. She has been dishonest with the Court, and she has 3 made misrepresentations when it suits her. Your Honor, we 4 recognize that the Court has calculated the guidelines to be 5 188 to 235 months. That is far below the sentence that the 6 government believes is appropriate in this case. We recognize 7 that there are a small number of cases where the Court imposes 8 an above-guideline sentence. This is that case, your Honor. 9 In the almost 20 years since the 2003 manual was enacted, our Sentencing Commission, our Congress, and our 10 country have all recognized just how serious sex crimes against 11 children are. Our country now recognizes how woefully 12 inadequate the 2003 guidelines were, and the Supreme Court has 13 expressly held that sentencing courts can vary upwards for 14 exactly that reason. Again, this is that case. This is 15 exactly that case. This is the time to impose an 16 above-guideline sentence. A guideline sentence in this case 17 would create unwarranted sentencing disparities with 18 individuals being sentenced today for sex-trafficking offenses. 19 This case calls out for an above-guideline sentence because of 20 the breathtaking scope of the defendant's conduct, the length 21 of her crimes, the number of victims, the vulnerability of her 22 victims, the sophistication of the defendant's predatory 23 conduct and the degree to which she psychologically manipulated 24 her victims. Her conduct was shockingly predatory, and it 25 her victims. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021604 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page175 of 217 M6SQmaxS1 60 1 calls out for an above-guideline sentence. 2 We ask the Court to impose an above-guideline 3 sentence, a sentence that sends a message that those who would 4 conspire with sexual predators would be held responsible for 5 their significant role in these crimes. We ask the Court to 6 send a message that nobody is above the law, and nobody is too 7 rich or powerful to be held accountable. We ask the Court to 8 send a message that it is never too late for justice. 9 Your Honor, you should not hesitate to hold the 10 defendant accountable for the full measure of her crimes. She 11 deserves to spend decades in prison for her crimes. Thank you. 12 THE COURT: Thank you, Ms. Moe. 13 And I will ask that the individuals who are making 14 statements come to the podium. 15 Ms. Farmer is first. You're welcome to remove the 16 mask when you get there, Ms. Farmer, if you'd like. 17 MS. FARMER: Judge Nathan: For a long time I wanted 18 to erase from my mind the crimes that Ghislaine Maxwell and 19 Jeffrey Epstein committed against me and pretend they hadn't 20 happened. It was the type of dark memory that feels safest to 21 keep locked away. But I've had to acknowledge the long-lasting 22 effects. One of the most painful and ongoing impacts of 23 Maxwell's and Epstein's abuse was a loss of trust in myself, my 24 perceptions and my instincts. When predators groom and then 25 abuse or exploit you, they are in a sense training you to SOUTHERN DISTRICT REPORTERS, P.C...(212) 805-0300 DOJ-OGR-00021605 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page176 of 217 SA-430 M6SQmaxS1 61 distrust yourself. When a boundary is crossed or an expectation violated, you tell yourself, "Someone who cares about me to do all these nice things surely wouldn't also be trying to harm me." This pattern of thinking is insidious, so these seeds of self-doubt took root even as I learned my sister had also been harmed by them and came to find out years later that many others had been exploited. THE COURT: Just a request to slow down. MS. FARMER: For years these memories triggered significant self-recrimination, minimization and guilt. I blame myself for believing these predators actually wanted to help me. I felt tremendous survivor guilt when I heard about what other girls and young women had experienced at hands of Maxwell and Epstein. I saw about how my sister's concern about me weighed on her and felt guilty about this as well. This toxic combination of being sexually exposed and exploited, feeling confused and naïve and blaming myself all resulted in significant shame; that sickening feeling that makes you want to disappear. It was not constant but would come in waves, similar to the waves that anxiety would also show up. When I think back, I see a slide-show of moments when these feelings would surface and overwhelm me. There are too many of these moments to name and though I have come a long way in my path of healing, I know that these feelings will continue to be triggered at times. SOUTHERN DISTRICT REPORTERS, P.C...(212) 805-0300 DOJ-OGR-00021606 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page177 of 217 SA-431 M6SQmaxS1 62 1 The ripple effects of trauma are undeniable. When one 2 person is abused, many others are also harmed. In addition to 3 the way I was impacted as an individual, there was the pain I 4 experienced as a sister due to how Maria was abused by Maxwell 5 and Epstein and the harm caused to the rest of my family due to 6 these events. My sister Maria's abuse, the sexual assault, 7 Maxwell's threats that stole her sense of safety and her 8 career, the way they used her to get to me had devastating 9 effects on her. As my family watched her grow more isolated 10 and more physically ill from the stress of all of it, we all 11 felt powerless. It was heartbreaking and infuriating, and we 12 later learned how often this pattern was repeated. A young 13 person on the path of pursuing her dreams was pulled in by 14 Maxwell, was abused and exploited, and then had to try and 15 piece together a life in the aftermath of this trauma that left 16 them feeling distrustful and fearful. Most of these 17 individuals had families who also were negatively impacted as 18 they witnessed and felt the systemic effects of their loved 19 one's losses and struggles. The number of people harmed is 20 impossible to measure. Maxwell had many opportunities to come 21 clean but instead continued to make choices that caused more 22 harm. 23 When my sister and I first spoke out to the media 24 about what happened to us, Maxwell lied about us and threatened 25 Maria, thus helping shut down investigations into their SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021607 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page178 of 217 SA-432 M6SQmaxS1 63 1 behavior so they could together continue to harm children and young women. After this attempt to alert people to Epstein and Maxwell's abusive behavior, I avoided being public about it for two decades. My shame told me I should hide this fact because it was embarrassing. Later as I pursued my profession as a psychologist, I feared it could potentially ruin my career. I worried clients would not want to work with me if I was associated with this story, wrongly labeled as one of child prostitution. I feared being on Epstein's and Maxwell's radar as a problem because of their previous lies and threats. Once arrested, Maxwell faced another choice. She could admit her participation in this scheme, acknowledge the harm caused or even provide information that could have helped hold others accountable. Instead, she chose again to lie about her behavior, causing additional harm to all of those she victimized. Judge Nathan, I hope when you consider the appropriate prison sentence for the role Maxwell played in this sex-trafficking operation, you take into account the ongoing suffering of the many women whom she abused and exploited as we will continue to live with the memories of the way she harmed us. I hope you weigh the systemic effects of the crimes she perpetrated, the ways that our family members, romantic partners and friends have been hurt through our suffering. I ask you to bear in mind how Maxwell's unwillingness to SOUTHERN DISTRICT REPORTERS, P.C... (212) 805-0300 DOJ-OGR-00021608 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page179 of 217 SA-433 M6SQmaxS1 64 1 acknowledge her crimes, her lack of remorse and her repeated 2 lies about her victims created the need for many of us to 3 engage in a long fight for justice that has felt like a black 4 hole sucking in our precious time, energy and well-being for 5 much too long now, things that cannot be replaced. Thank you. 6 7 THE COURT: Thank you, Ms. Farmer. 8 Kate may make a statement now. 9 MS. MOE: Your Honor, before Kate speaks, I just 10 wanted to confirm that the Court's anonymity order, in 11 particular with respect to sketch artists, is in effect. 12 THE COURT: Yes. Consistent with the Court's prior 13 anonymity and pseudonym order, we will refer to this witness as 14 Kate only, and the sketch artists shall not draw an exact image 15 of Kate so that she can remain anonymous. 16 Thank you, Ms. Moe. 17 Kate, you may proceed. 18 KATE: Good afternoon, your Honor. Thank you for 19 hearing me. I believe you've already seen my victim impact 20 statement, so I have something else to say. 21 At a time when women's rights have so callously been 22 discarded, as the mother a young daughter, I fear for the 23 safety and freedom of my child. Today offers hope that change 24 is possible. Our voices may not have been heard before, but we 25 united to bring justice to a common enemy. If we cannot stop 26 women who have been raped from being forced to bear the 27 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021609 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page180 of 217 SA-434 M6SQmaxS1 65 1 children of their rapists, then we must take a stand on zero tolerance to those who abuse their power to groom and traffic and rape the vulnerable. 2 3 How you do anything is how you do everything. Every single person should have equal value. Every single person should have an equal right to be protected. Every single child must have their innocence defended. No person should be shielded from the consequences of their actions no matter their status or class. Ghislaine's lack of remorse and her blatant refusal to take responsibility for her crimes towards us is the final insult. 4 5 Having a difficult childhood is irrelevant to the choices she made to traffic and supply women/children to Jeffrey Epstein and other powerful men. Despite the atrocities perpetrated on me, I have never recruited a child or any person to be sexually abused. Someone being a hard worker does not excuse sex trafficking of minors. Someone starting a non-profit does not excuse sex trafficking of minors. Someone who had it difficult or even an abusive father does not excuse sex trafficking of minors. Losing money and prestige does not excuse sex trafficking of minors. The lack of remorse or responsibility taken by Ghislaine for how she ruined the lives of countless women and children is exactly how we can tell that she doesn't think what she did is wrong. She is not sorry, and she would do it again. 6 7 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021610 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page181 of 217 SA-435 M6SQmaxS1 66 1 I have known Ghislaine for many years now, and I have 2 seen her be kind and generous to me and many others until she 3 doesn't get what she wants from that person, and then I have 4 seen her stop at nothing to enforce her will -- a manipulative 5 cruel and merciless person who only uses kindness to manipulate 6 and generosity to seek recognition. 7 Today for the first time I stand with my sisters, 8 bonded by a trauma that I wish on no one, to draw a line and to 9 set a precedent to say enough is enough; to say no with a 10 chorus of voices that you cannot ignore. May that chorus ring 11 through the ears of people still being victimized and give them 12 strength. May it echo in the ears of perpetrators to remind 13 them that there are those of us who will never stop until we 14 stop them. 15 Today is not a happy day. I take no pleasure in being 16 part of a world where this is necessary, but I am proud to 17 stand shoulder to shoulder with these brave women and do what 18 is necessary to stop Ghislaine, to hold her accountable, and 19 for the first time in my life not to feel afraid. I could not 20 have done this alone, and I thank those who walked alongside me 21 and those who carried me. Today I can look at Ghislaine and 22 tell her that I became what I am today in spite of her and her 23 efforts to make me feel powerless and insignificant, and I will 24 pass that empowerment on to my daughter that she may never 25 consider being silent when faced with injustice because she SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021611 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page182 of 217 SA-436 M6SQmaxS1 67 1 will feel all of us standing behind her. Thank you. 2 THE COURT: Thank you. 3 I will hear the statement from counsel for Virginia 4 Roberts. 5 VIRGINIA ROBERTS COUNSEL: Good afternoon, your Honor. 6 May it please the Court, this statement I am reading 7 on behalf of my client, Virginia Giuffre, is written to 8 Ghislaine Maxwell. 9 Ghislaine: 22 years ago in the summer of 2000, you 10 spotted me at Mar-a-Lago in Florida, and you made a choice: 11 You chose to follow me and procure me for Epstein. Just hours 12 later, you and he abused me together for the first time. 13 Together you damaged me physically, mentally, sexually and 14 emotionally. Together you did unthinkable things that still 15 have a corrosive impact on me to this day. 16 I want to be clear about one thing: Without question, 17 Jeffrey Epstein was a terrible pedophile, but I never would 18 have met Jeffrey Epstein if not for you. For me, and for so 19 many others, you opened the door to hell, and then, Ghislaine, 20 like a wolf in sheep's clothing, you used your femininity to 21 betray us and you led us all through it. When you did that, 22 you changed the course of our lives forever. You joked that 23 you were like a new mother to us. As a woman, I think you 24 understood the damage that you were causing, the price you were 25 making us victims pay. You could have put an end to the rapes, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021612 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page183 of 217 SA-437 M6SQmaxS1 68 1 the molestation, the sickening manipulation that you arranged, 2 witnessed and even took part in. You could have called the 3 authorities, and reported that you were part of something 4 awful. 5 I was young and naïve when we met, but you knew that. 6 In fact, you were counting on it. My life as a young person 7 was just beginning. You robbed me of that by exploiting my 8 hopes and ambitions. Ghislaine, the pain you have caused me is 9 almost indescribable. Because of your choices and the world 10 you brought me into, I don't sleep. Nightmares wake me at all 11 hours. In those dreams, I relive the awful things that you and 12 others did to me and the things that you forced me to do. 13 Those memories will never go away. 14 I have trouble meeting new people without questioning 15 if somehow they're going to hurt me too. There is not a day 16 that doesn't go by that I don't ask why. Why did you enjoy 17 hurting us so much? I worry every single day and night that 18 you will get away with it and evade being punished. I will 19 worry about that until you're brought to justice. And what 20 should that justice look like? Ghislaine, you deserve to spend 21 the rest of your life in prison in a jail cell. You deserve to 22 be trapped in a cage forever just like you trapped your 23 victims. But I want you to know that while you tried to break 24 me, you did not succeed. Despite you, I've grown into a woman 25 who tries to do good in the world; a woman who on her best days SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021613 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page184 of 217 SA-438 M6SQmaxS1 69 1 feels like she's making a difference. 2 My promise to you is as follows: As long as you and 3 perpetrators like you continue to prey on the vulnerable, I 4 will not stop standing up and speaking out. Together with so 5 many others you abused, we will do all we can to keep predators 6 from stealing the innocence of children. I will never give up. 7 I will never go away. If you ever get out of prison, I will be 8 here watching you and making sure you never hurt anyone else 9 again. Thank you. 10 THE COURT: Thank you, counsel. 11 And I do have the written submissions submitted in 12 accordance with the Court's order from Ms. Bryant, Ms. Maria 13 Farmer and Ms. Helm, who I understand was not able to be 14 present. And so I'll hear from Ms. Ransome. Please tell me 15 how tell me how to say your name correctly. 16 MS. RANSOME: Ransome. 17 THE COURT: Thank you. 18 MS. RANSOME: Your Honor, it's been a long journey to 19 bring Maxwell to justice. Although I have physically escaped 20 the hideous trap set by Epstein, Maxwell and other 21 co-conspirators, I continue now, 17 years later, to suffer from 22 the horrific trauma it has caused. 23 I came to New York at the age of 22 hoping to attend 24 New York's FIT and work in the fashion industry. Soon after 25 arriving, I made met an Epstein-Maxwell recruiter named Natalya SOUTHERN DISTRICT REPORTERS, P.C... (212) 805-0300 DOJ-OGR-00021614 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page185 of 217 M6SQmaxS1 70 1 Malyshev. She described him as a kind philanthropist who could 2 help me get into FIT and provide much needed support. 3 Over the next seven to eight months, I became against 4 my will nothing more than a sex toy for the entertainment of 5 Epstein, Maxwell and others. I was subjected to sexual 6 predation multiple times per day, both in his New York mansion 7 and on his private island in the U.S. Virgin Islands. On one 8 of the visits to the island, the sexual demands, degradation 9 and humiliation became so horrific that I tried to escape by 10 attempting to jump off a cliff into shark-infested waters. 11 Epstein and Maxwell were masters at finding young, 12 vulnerable girls and young women to exploit. Upon targeting a 13 vulnerable girl/young woman, they would ingratiate themselves 14 to her, giving her compliments and small gifts, telling her how 15 special she was. Soon after lulling me and others into a false 16 sense of security and comfort, they pounced, ensnaring us in 17 the upside-down, twisted world of rape, rape, rape. Like Hotel 18 California, you can check into the Epstein-Maxwell dungeon of 19 sexual hell, but you could never leave. 20 The manipulation, intimidation and emotional abuse 21 used to control the victims took many forms. In my case, 22 Epstein and Maxwell used my dysfunctional family history, 23 naivete, visa status, lack of education and desire to go to FIT 24 to manipulate, scare and ensnare me. They told me that I was 25 exceptionally intelligent and that I had real potential to be SOUTHERN DISTRICT REPORTERS, P.C... (212) 805-0300 DOJ-OGR-00021615 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page186 of 217 SA-440 M6SQmaxS1 71 1 someone and something in life one day. 2 Epstein's and Maxwell's strong ties to FIT could make 3 this happen. With their help, my admission was almost assured, 4 but there was always a but. First I had to write my 5 application, which I did. But Maxwell had to review it and 6 conveniently always found fault. Then another but, I needed to 7 lose 30 pounds because I was a piglet. Maxwell's numerous 8 degrading descriptions of me. Epstein and Maxwell put me on a 9 strict Atkins diet while simultaneously sending me to a 10 psychiatrist who prescribed antidepressants that caused weight 11 gain. It was a classic no-win situation, and they knew it: 12 Precisely what human traffickers seek. I never lost the 13 weight, my application was never good enough, and it never got 14 submitted. 15 I thank the almighty God that in 2007, I managed to 16 escape the horror by fleeing to the U.K. Since then, I have 17 been coping as best as I can and frequently experience 18 flashbacks and wake up in a cold sweat from nightmares from 19 reliving the rawful experience. I'm hypervigilant. I do not 20 trust people easily. I experience dramatic mood changes. I will 21 sometimes start crying uncontrollably for reasons I cannot 22 always comprehend. I worked hard with several mental health 23 professionals. They have diagnosed me with extreme symptoms of 24 anxiety, depression, low self-esteem, PTSD and tendency to 25 self-harm. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021616 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page187 of 217 SA-441 72 M6SQmaxS1 1 Despite my earnest effort I have not realized life's 2 true potential professionally, nor entered any healthy personal 3 relationships. I have never married, and I do not have 4 children, something I always wished for when I was a little 5 girl. I shy away from meeting new people and have difficulty 6 making new friends because I fear they too could be associated 7 with Epstein and Maxwell and their enablers and 8 co-conspirators. 9 To this day I attend meetings to treat alcoholism, but 10 I have had numerous relapses, and I cannot always control that. 11 I know that only by the grace of God do I continue to live. I 12 have attempted suicide twice since the abuse -- both near 13 fatal. 14 Last year, I traveled to New York to attend Maxwell's 15 trial. It was therapeutic to hear the testimony of the four 16 brave victim-witnesses, whose experience paralleled my own, to 17 know that I was not alone, and that our story was finally being 18 told for the world to hear. 19 I am grateful the jury believed the victims and 20 returned a guilty verdict, but a question still tears at my 21 soul. After all of this, how can this five-star general of 22 this enormous sex-trafficking conspiracy involving hundreds, if 23 not thousands, of vulnerable girls and young women over three 24 decades continue to maintain her innocence? Reflecting on it, 25 I know the answer to my questions. SOUTHERN DISTRICT REPORTERS, P.C... (212) 805-0300 DOJ-OGR-00021617 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page188 of 217 SA-442 M6SQmaxS1 73 1 Maxwell is today the same woman I met almost 20 years ago, incapable of compassion and human common decency. Because of her wealth, her social status and connections, she believes herself beyond reproach and above the law. Sentencing her to the rest of her life in prison will not change her, but it will give the other survivors and I a slight sense of justice and help us as we continue to work to recover from the sex-trafficking hell she perpetrated. She will never ever hurt another young woman or child again in this lifetime, and for that I am sure. To Ghislaine, I say, you broke me in unfathomable ways, but you did not break my spirit, nor did you dampen my eternal flame that now burns brighter than ever before. Thank you, your Honor. THE COURT: Thank you, Ms. Ransome. I will hear the statement from Ms. Stein. MS. STEIN: Good afternoon, your Honor. THE COURT: Good afternoon. MS. STEIN: I came to New York in 1991 at the age of 18 to attend FIT and immediately began to excel academically. In my sophomore year, I accepted a Christmastime internship at Henri Bendel New York. I performed well and was asked to stay on as a part-time employee. In the fall semester of my senior year at FIT, Ghislaine Maxwell came into the store where she was a frequent SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021618 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page189 of 217 SA-443 M6SQmaxS1 74 1 customer. Her usual salesperson wasn't there, so I helped her. 2 Ghislaine was electrifying. We hit it off immediately. In 3 this first meeting we spoke of our mutual love of fashion, of 4 difficult fathers and formal upbringing, of boyfriends and of 5 how we both saw New York as a chance to start over. She told 6 me that her boss, who I later came to understand was Jeffrey 7 Epstein, was close friends with Lex Wexner, the CEO and founder 8 of The Limited, which owned Henri Bendel at the time. 9 10 When she completed her purchases, I offered to deliver 11 them to her so she didn't have to carry them around all day. 12 This was a courtesy I frequently extended to my high-end 13 clients. Later that day, I called her office for delivery 14 instructions and was told to bring them to a hotel close by to 15 the store. When I arrived, the hotel concierge told me 16 Ms. Maxwell was in the bar and wanted me to meet someone. It 17 was Jeffrey Epstein. That night in the hotel was the first of 18 many times they sexually assaulted me. 19 20 Afterwards I tried to pretend everything was normal. 21 I returned to my classes at FIT and continued to work at Henri 22 Bendel, but I started to crack. I failed a course that was 23 necessary for my degree and had to retake it to get my diploma. 24 Shortly after my first meeting with Epstein and Maxwell, I was 25 offered a full-time position at Henri Bendel. It was a newly 26 created position at the store, and it would have required me to 27 leave FIT a semester short of completing my degree. I had SOUTHERN DISTRICT REPORTERS, P.C.... (212) 805-0300 DOJ-OGR-00021619 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page190 of 217 SA-444 M6SQmaxS1 75 1 aspirations of going to law school, and I knew I could not do 2 so without my undergraduate degree, so I declined it. 3 When Ghislaine found out, she flew into a rage. I 4 didn't understand why until she told me that she and Epstein 5 were responsible for giving me that opportunity and that in 6 turning it down I was being ungrateful. I now know that this 7 was their standard operating procedure. Give a gift or a favor 8 and then demand sex in return. Nevertheless, I completed my 9 course work, got my degree from FIT, at which point I left 10 Henri Bendel and took a position at Bloomingdales. I wanted to 11 leave Epstein and Maxwell and the abuse they perpetrated 12 against me behind as I started my professional life. I never 13 wanted to or expected to see them again. 14 One day in the fall of 1995, Maxwell showed up at 15 Bloomingdales looking for me. When I asked her how she knew 16 where I was, she said she asked my colleagues at Henri Bendel. 17 She immediately began befriending me once again, asking me to 18 go out socially. I tried to resist but eventually she wore me 19 down, and I began spending time with them again. They made me 20 feel like they were friends, contemporaries. 21 In one instance, they took me to Florida and insisted 22 that I stay longer than planned which caused me to miss work 23 and led to me being fired. Seizing on this new vulnerability 24 they began trafficking me to their friends. By that time I was 25 trapped. I was assaulted, raped and trafficked countless times SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021620 --- PAGE BREAK --- M6SQmaxS1 76 1 in New York and Florida during a three-year period. Things 2 happened that were so traumatizing that to this day I am unable 3 to speak about them. I don't even have the vocabulary to 4 describe them. In the most literal sense of the word, Epstein 5 and Maxwell terrified me. They told me that if I told anyone, 6 no one would believe me; and if they did, they would kill me 7 and the people closest to me. I believed them. 8 I was once bright, fun, outgoing and kind. I loved 9 life and people genuinely enjoyed being around me. After 10 meeting Jeffrey Epstein and Ghislaine Maxwell, it felt like 11 someone shut off the lights to my soul. My secrets became too 12 much for me to handle, and I began doing whatever I could to 13 try to get away from Maxwell and Epstein. I changed jobs, 14 apartments, cities and even states to try to get away. 15 Everywhere I went, they found me. 16 In 1997 I moved to Philadelphia with the hopes of 17 finally starting law school. They found me again, and it was 18 more than I could take. I was hospitalized with a nervous 19 breakdown. It would be the first of over two dozen 20 hospitalizations in a decade following my involvement with 21 Epstein and Maxwell. 22 In addition to my escalating mental health problems, I 23 began to experience physical symptoms that doctors could never 24 quite put their fingers on. I could no longer even pretend to 25 be able to hold down a job or take care of myself in any SOUTHERN DISTRICT REPORTERS, P.C... (212) 805-0300 DOJ-OGR-00021621 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page192 of 217 SA-446 M6SQmaxS1 77 1 meaningful way, and I had to move back home once again. 2 Emotionally, I had cracked and nobody thought I would ever get 3 better, but I didn't give up. I was determined to do whatever 4 I had to to prove everyone wrong. I wasn't crazy. I was hurt. 5 For over a decade and a half, I went to all kinds of 6 medical specialists and was in and out of medical and 7 psychiatric hospitals, having tests and procedures, even 8 submitting to clinical trials and an experimental implantable 9 medical device. Nothing helped. 10 Just as I began to repair the emotional damage, I was 11 diagnosed with complex regional pain syndrome. CRPS is a rare 12 neuro-inflammatory disorder characterized raised by intense 13 relentless physical pain. Both CRPS and PTSD are 14 psychophysical states in which the sympathetic nervous system 15 is engaged and remains inappropriately hyperaroused. There is 16 no cure. The mind and body are interconnected. Despite of 17 this, I immersed myself this trauma therapy and repaired my 18 emotional health. I began physical therapy and regained my 19 physical mobility. I started to rebuild my life. 20 The arrest of Epstein in 2019 and Maxwell in 2020 21 helped me immensely. For the first time, I was finally able to 22 disclose their abuse to friends and medical providers. 25 23 years after meeting them my experience was validated. I could 24 finally see the possibility of closure. This past November and 25 December I commuted almost every day from my home in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021622 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page193 of 217 SA-447 78 1 Philadelphia to attend Ghislaine Maxwell's trial in Manhattan. 2 For weeks I sat in this courtroom anonymously, only revealing 3 my identity the day before the verdict. I had to see justice 4 myself. 5 At the age of 48, I feel as if I'm just starting my 6 life. All those things I assumed I would have in life, the 7 things that my siblings and my friends have achieved: A 8 career, success, partner, family, a home, a legacy to be proud 9 of leaving behind were jeopardized for more than two and a half 10 decades. The only pronounced difference between my life 11 experience and theirs is that one day when I was doing my job, 12 I met Ghislaine Maxwell who fed me to Jeffrey Epstein. 13 (Continued on next page) 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021623 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page194 of 217 SA-448 M6s2Max2 79 1 MS. STEIN: In more ways than one, they almost killed me, but I wasn't going to let them. Overcoming what happened to me became my decades-long, full-time career. In that, I have been successful. For the past 25 years, Ghislaine Maxwell has been free to live a life of wealth and privilege that is almost incomprehensible. Meanwhile, I have had virtually none of the life experiences I might have had we never met. For over two and a half decades, I felt like I was in prison. She has had her life. It's time to have mine. She needs to be imprisoned so all of her victims can finally be free. Thank you, your Honor THE COURT: Thank you, Ms. Stein. Ms. Sternheim? MS. STERNHEIM: Thank you, Judge. Judge, I would like to stand at the podium. THE COURT: Please. Let me just note again that I did have the statements of the victims in the record. I thank them for making statements today and thank their counsel for working with them in conformity with my order. MS. STERNHEIM: Your Honor, I would like to address the victims. I am going to try to turn around if the Court permits me. THE COURT: As long as I can hear you and the court SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021624 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page195 of 217 SA-449 80 1 reporters can hear you. 2 MS. STERNHEIM: I am going to speak as best as I can. 3 I want to acknowledge the courage that all of you have 4 exhibited in coming forward at the trial and again today. Your 5 statements are immensely powerful. We feel the pain. We can 6 only hope that the end of this case and the sentence to be 7 imposed will give you some solace and the sanctity that you 8 have the ability to move forward and beyond all of this. 9 Judge Nathan, can you hear me? I didn't pull it out, I hope. 10 11 THE COURT: I can. 12 MS. STERNHEIM: Okay. 13 You have heard all of the trial testimony and you are 14 fully familiar with the record. We will refrain from pointing 15 out many statements that we disagree with by the government 16 that we believe stretches the elasticity of the record well 17 beyond what we believe is fair inference. But the purpose of 18 today is not to take issue with the record; that will be 19 addressed to the Court of Appeals. 20 The government asks the Court to sentence Ms. Maxwell 21 above the more reasonable guideline range that the Court 22 determined is applicable in this case and seeks a sentence of 23 multiple decades in prison for a woman who is almost 61 years 24 old and for almost the last 20 years has not engaged in any 25 conduct similar to that which was the subject of the trial and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page196 of 217 SA-450 81 1 the conviction. 2 The government has asked for an immense sentence. We 3 recognize that any sentence in this case is going to be 4 significant and is going to be immensely punishing. The 5 probation department, based on the original guidelines in the 6 presentence report, recommended a downward variance to 20 7 years. That recommendation is now higher than the guideline 8 range that is applicable in this case. But we ask the Court to 9 consider the justification that probation articulated in the 10 presentence report in fashioning a sentence that takes into 11 consideration that a sentence lower than the guideline range is 12 appropriate in this case. 13 The government's sentence asks for the outer limits, 14 and although we still believe that even the recommendation is 15 too high, a sentence within the guideline range now may be more 16 reasonable, but it still does not take into consideration some 17 of the various factors that we have brought to the Court's 18 attention in our submission. Simply stated, based upon the 19 conduct of conviction, the government's request is out of 20 proportion. Jeffrey Epstein would have faced the same 21 sentence, and he is clearly far more culpable than Ghislaine 22 Maxwell. 23 THE COURT: You mean he would have faced the same 24 guidelines. 25 MS. STERNHEIM: Yes, that is correct, Judge. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021626 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page197 of 217 SA-451 82 M6s2Max2 1 The sentencing submissions, which I know the Court has 2 read—and I know the Court reads everything very critically and 3 carefully—outlines and details our position, and I am not 4 going to take the time to repeat those things unless the Court 5 requests me to answer certain questions. 6 But in fashioning the appropriate sentence for this case and this defendant, the Court needs to take into 7 consideration the various 3553(a) factors that the Court must 8 take into consideration in every case regardless of what the 9 crime of conviction is. 10 I know that what we heard today does not beg sympathy 11 for Ms. Maxwell, but there are circumstances in her life that 12 bear attention by the Court in imposing a reasonable sentence 13 in this case. She has lived the entirety of her life under 14 giant clouds that have cast very dark shadows. The tragic 15 accident of her eldest brother within 72 hours of her birth on 16 Christmas Day left him in a coma for seven years, until he 17 died, an event that impacted her family to this day and 18 overshadowed infant Ghislaine's entry into the world and her 19 early childhood. Her narcissistic, brutish, and punitive 20 father overwhelmed her adolescence and early adulthood. And 21 the controlling, demanding, manipulative Jeffrey Epstein cast a 22 deceptive shadow over Ghislaine's adulthood, the repercussions 23 of which will plague her until her last breath. And like the 24 past two years of intense presentence incarceration, which was 25 SOUTHERN DISTRICT REPORTERS, P.C.••• (212) 805-0300 DOJ-OGR-00021627 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page198 of 217 M6s2Max2 83 1 unusually harsh and punishing, she will remain in the shadow of 2 prison bars until she can return to the sunlight of liberty. 3 As I said before, she is over 60 years old. She has 4 no history of violence. She had no criminal history before or 5 after the crimes of conviction, which ended some 20 years ago, 6 and the Court needs to consider that there is an extensive 7 period that has elapsed from the end of the charged conduct. 8 She poses no danger to society or of recidivism. Her personal 9 circumstances include many accomplishments and good deeds. 10 As I said, she has been subjected to extensive 11 punishing conditions of presentence incarceration in solitary 12 confinement. When she was moved within the last two months to 13 general population, she began interacting with the inmates and 14 assisting them in many, many ways. She began conducting 15 English classes and GED tutoring, programs that were no longer 16 being offered in the MDC and certainly had been suspended as a 17 result of the ongoing pandemic. Her asset to the unit in 18 general population is recited in the unsolicited letter 19 submitted to the Court from one of her fellow unit inmates. 20 But I have also been contacted personally by counsel for other 21 inmates in Ms. Maxwell's unit, reporting to me that she is 22 providing needed educational assistance that has not been 23 ongoing for at least two years. 24 Ms. Maxwell is being sentenced for terrible conduct. 25 There is no denying that. But she has the ability and the SOUTHERN DISTRICT REPORTERS, P.C...(212) 805-0300 DOJ-OGR-00021628 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page199 of 217 M6s2Max2 84 1 desire to be law-abiding, which she has exhibited, and to do 2 good. Before the charged offense and for the better part of 3 the past 20 years, she has demonstrated that she is not a 4 danger to anyone. A sentence below the applicable guidelines 5 is sufficient, but not greater than necessary, punishment for 6 Ghislaine Maxwell. The Court should not send her away for the 7 rest of her life. 8 9 Thank you. 10 11 THE COURT: Thank you, Ms. Sternheim. 12 Ms. Maxwell, you have the right to make a statement. 13 You are not obligated to do so, but if you would like to, you 14 may do so now. 15 THE DEFENDANT: I would, your Honor. 16 MS. STERNHEIM: She would. Where would you like her 17 to -- I'm sorry, Judge. Where would you like her to address 18 the Court? 19 20 THE COURT: Are the marshals comfortable with the 21 podium? 22 23 THE MARSHAL: Yes, your Honor. 24 THE COURT: You can go to the podium, Ms. Maxwell. 25 MS. STERNHEIM: Thank you very much. 26 And she may remove her mask? 27 28 THE COURT: Once you are at the podium, yes, you may 29 remove your mask. 30 31 THE DEFENDANT: Thank you, your Honor. 32 33 SOUTHERN DISTRICT REPORTERS, P.C. 34 (212) 805-0300 DOJ-OGR-00021629 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page200 of 217 SA-454 M6s2Max2 85 1 Your Honor, it is hard for me to address the Court 2 after listening to the pain and anguish expressed in the 3 statements made here today. The terrible impact on the lives 4 of so many women is difficult to hear and even more difficult 5 to absorb, both in its scale and in its extent. I want to 6 acknowledge their suffering and empathize. I empathize deeply 7 with all of the victims in this case. 8 9 I also acknowledge that I have been convicted of helping Jeffrey Epstein commit these crimes. And despite the many helpful and positive things I have done in my life, and will continue to do, to assist others during my sentence, I know that my association with Epstein and this case will forever and permanently stain me. 10 11 It is the greatest regret of my life that I ever met Jeffrey Epstein. I have had plenty of time to think, having spent two years in solitary confinement. I believe that Jeffrey Epstein was a manipulative, cunning, and controlling man who lived a profoundly compartmentalized life and fooled all of those in his orbit. 12 13 Variously, his victims considered him as a godfather, a mentor, benefactor, friend, lover. It is absolutely unfathomable today to think that that is how he was viewed contemporaneously. 14 15 His impact on all those who were close to him has been devastating, and today those who knew him even briefly, or SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021630 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page201 of 217 SA-455 86 M6s2Max2 1 never met him but were associated with someone who did, have 2 lost relationships, have lost jobs, and have had their lives 3 completely derailed. 4 Jeffrey Epstein should have been here before all of 5 you. He should have stood before you all those years ago. He 6 should have stood before you in 2005, again in 2009, and again 7 in 2019, all of the many times he was accused, charged, and 8 prosecuted. 9 But today it is not about Epstein ultimately. It is 10 for me to be sentenced and for the victims to address me, and 11 me alone, in this court. 12 To you, all the victims, those who came in court and 13 to those outside, I am sorry for the pain that you experienced. 14 I hope that my conviction, along with my harsh and unusual 15 incarceration, brings you closure. I hope this brings the 16 women who have suffered some measure -- I hope that this brings 17 the women who have suffered some measure of peace and finality 18 to help you put the experiences of those many years ago in a 19 place that allows you to look forward and not back. 20 I also acknowledge the pain this case has brought to 21 those that I love, the many I held and still hold close, which 22 tortures me every single day, and the relationships that I have 23 lost and will never be able to regain. 24 It is my sincerest wish to all those in this courtroom 25 and to all those outside this courtroom that this day brings a SOUTHERN DISTRICT REPORTERS, P.C... (212) 805-0300 DOJ-OGR-00021631 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page202 of 217 SA-456 87 1 terrible chapter to the end, to an end. And to those of you 2 who spoke here today and to those of you who did not, may this 3 day help you travel from darkness into the light. 4 Thank you, your Honor. 5 THE COURT: Thank you, Ms. Maxwell. 6 Counsel, is there anything else -- I'm sorry, let 7 me -- I do want to ask defense counsel, before I get there, if 8 there are any objections to any of the conditions recommended 9 by the Probation Department with respect to supervised release. 10 MS. STERNHEIM: No, Judge. 11 THE COURT: Okay. And I understand the government is 12 not -- I just want to talk about restitution before I get to 13 the statement of judgment. 14 Count Six is mandatory restitution, but the 15 government's position is that no restitution should be ordered 16 because all victims have been compensated. 17 MS. MOE: That is correct, your Honor. 18 THE COURT: Counsel, is there anything else I should 19 consider or any reason why sentence should not be imposed at 20 this time? 21 MS. MOE: No, your Honor. Thank you. 22 MS. STERNHEIM: No. 23 THE COURT: All right. Let me gather my thoughts for 24 one moment. 25 (Pause) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021632 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page203 of 217 M6s2Max2 88 1 THE COURT: Thank you for your patience. 2 As I have stated, the guideline range applicable to 3 this case is 188 to 235 months' imprisonment. 4 Under the Supreme Court's decision in a case called 5 Booker and related cases, the guideline range is only one 6 factor that the Court must consider in deciding the appropriate 7 sentence. I am also required to consider the other factors set 8 forth in a provision called 18 U.S.C. 3553(a). These include 9 the nature and circumstances of the offense, and the history 10 and characteristics of the defendant; the need for the sentence 11 imposed to reflect the seriousness of the offense, to promote 12 respect for the law, to provide just punishment for the 13 offense, to afford adequate deterrence to criminal conduct, to 14 protect the public from further crimes of the defendant, to 15 provide needed educational, vocational training, medical care, 16 or other treatment. I am to take into account the kinds of 17 sentences available, as I have said, the guideline range, any 18 pertinent policy statement, the need to avoid unwarranted 19 sentence disparities among defendants with similar records who 20 have been found guilty of similar conduct, the need to provide 21 restitution as appropriate under the law to any victims of the 22 offense. 23 I am required to impose a sentence sufficient, but no 24 greater than necessary, to comply with the purposes I have just 25 described. I have given substantial thought and attention to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021633 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page204 of 217 M6s2Max2 89 1 the appropriate sentence in this case in light of the 3553(a) 2 factors and the appropriate purposes of sentencing as reflected 3 in that statute. 4 The crimes for which I sentence Ms. Maxwell today are 5 the crimes for which a jury convicted her of committing 6 following trial. I do want to emphasize that today the 7 sentence is based entirely on those crimes and the harm done to 8 the victims of those charged and proved crimes. The evidence 9 at trial established that Ms. Maxwell directly and repeatedly 10 and over the course of many years participated in a horrific 11 scheme to entice, transport, and traffic underage girls, some 12 as young as 14, for sexual abuse by and with Jeffrey Epstein. 13 I will pause on those words for a moment, "by and with 14 Epstein." It is important at the outset to emphasize that 15 although Epstein was, of course, central to this criminal 16 scheme, Ms. Maxwell is not being punished in place of Epstein 17 or as a proxy for Epstein. Like every other participant in a 18 multi-defendant case, Ms. Maxwell is being punished for the 19 role that she played in the criminal conduct. As to that role, 20 the trial evidence established that Ms. Maxwell was 21 instrumental in the abuse of several underage girls and that 22 she herself participated in some of the abuse, and it is her 23 conduct for which she has been convicted in the court under the 24 laws of this country and it is her conduct for which she must 25 be held accountable. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021634 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page205 of 217 SA-459 M6s2Max2 90 1 Turning to that conduct, the punishment here must 2 reflect the seriousness of the offense, promote respect for the 3 law, provide just punishment for the offense, and deter. 4 First, as to the seriousness, the defendant's conduct 5 was, as aptly described by the probation department, heinous 6 and predatory. Ms. Maxwell worked with Epstein to select young 7 victims who were vulnerable. Once selected, Ms. Maxwell played 8 a pivotal role in facilitating the abuse of the underaged girls 9 through a series of deceptive tactics. A sophisticated adult 10 woman, she provided an initial veneer of responsibility and 11 even safety. She befriended and developed relationships of 12 trust. She then manipulated the victims and normalized sexual 13 abuse through her involvement, encouragement, and instruction. 14 To give one example from trial, Jane testified that 15 Ms. Maxwell cultivated a friendship with her, took her to 16 movies and shopping. In an initial sexual interaction, while 17 Jane was 14 years old, the defendant engaged in sexual conduct 18 with Epstein while Jane was present. After that, the defendant 19 instructed Jane, again, while she was only 14 years old, on how 20 to massage Epstein, including instructions on how to touch his 21 penis during massages. The abuse later escalated to Epstein 22 using vibrators on Jane, penetrating her with his fingers. 23 During some of the sexual abuse, the defendant would herself 24 touch Jane's breasts. 25 Carolyn, the victim of the sex trafficking charge, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021635 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page206 of 217 SA-460 M6s2Max2 91 1 provides another example. She testified that she confided in 2 the defendant that her mother was an alcohol and that she had 3 been raped and molested by her grandfather starting at a very 4 young age. The defendant, aware of this knowledge, used it to 5 subject Carolyn to a continuing cycle of sexual abuse. The 6 defendant wasn't an impassive observer, but herself touched 7 Carolyn's breasts, again, at the time Carolyn was 14. For 8 years, Carolyn was paid for the sexualized massages, including 9 personally paid by the defendant. 10 Similar patterns of conduct were described by other 11 witnesses. Indeed, the criminal conduct established at trial 12 was extensive and it was far-reaching. Ms. Maxwell and Epstein 13 victimized multiple underaged girls using this pattern, this 14 playbook, over the span of many years and in a variety of 15 locations. And the damage done to these young girls was 16 incalculable. They did bravely testify at trial about what 17 happened to them despite the extraordinary difficulty that 18 entailed. They withstood cross-examination from zealous 19 defense counsel and testified credibly at trial about the 20 trauma that they had endured and the painful, horrific, and 21 lasting impact of that trauma. They did so, they told me in 22 their statements, in order to help ensure justice for 23 themselves and others and to do what they could to try to 24 prevent other girls from suffering in the future as they had 25 suffered. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021636 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page207 of 217 SA-461 M6s2Max2 92 1 The sentence I impose must reflect the gravity of 2 Ms. Maxwell's conduct, of Ms. Maxwell's offense, the pivotal 3 role she played in facilitating the offense, and the 4 significant and lasting harm it inflicted. So, too, must the 5 sentence promote respect for the law, provide just punishment, 6 and afford adequate deterrence. 7 8 As I have described, this scheme was long-lasting, it 9 was far-reaching, it was horribly damaging to the victims. 10 Just punishment and promotion of respect for the law, it 11 demands a substantial sentence that meets the scope of the 12 conduct and the scope of the harm. 13 Moreover, general deterrence is critically important 14 to the sentence I will impose. A substantial sentence will 15 send an unmistakable message that those who engage in and 16 facilitate the sexual abuse and trafficking of underaged 17 victims will be held accountable by the law. 18 As the probation department stated, a significant 19 sentence should promote general deterrence against the 20 exploitation and degradation of humans made possible by this 21 offense, and I fully agree. But let me be clear that 22 Ms. Maxwell is wealthy or that this case is high profile is not 23 a basis for increasing punishment in any regard, but the rule 24 of law demands, and this Court must ensure that, whether you 25 are rich or poor, powerful or entirely unknown, nobody is above 26 the law. That message serves the important interest in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021637 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page208 of 217 SA-462 93 M6s2Max2 deterrence and just punishment as well. All of these factors suggest that a very serious, a very significant sentence is necessary to achieve the purposes of punishment that I have just described. Of course I must, and I do, take into account the history and characteristics of the defendant. Ms. Maxwell is over 60 years old. This is her first conviction. Neither in arguing for pretrial detention nor with respect to sentencing has the government contended that Ms. Maxwell represents a continuing danger to the public. As I explained, I do not need to find she is a continuing danger to apply 4B1.5(b), as her decade-long pattern of predatory activity amply justifies that enhancement and a substantial sentence, but her present lack of dangerousness is a factor in my consideration of a proper sentence. Her sentencing submission letters and psychological report discuss the impacts of an overbearing and demanding father and the tragic death of her brother at the beginning of her life. The record indicates that she has engaged in some charitable works, including environmental conservation and health-related charitable organizing and giving. The set of letters I received from her family members and friends describe her as attentive and loving to her family and a loyal and generous friend. A letter from an inmate describes her tutoring of other inmates while incarcerated and Ms. Sternheim SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021638 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page209 of 217 SA-463 M6s2Max2 94 1 represents that she has heard similarly from other defense counsel. I take all of these factors into account consistent 2 with the 3553(a) statutory provision when deciding what sentence to impose. 3 4 Beyond these factors, much of the defense written submission, not the oral statement today, but much of the written 5 submission focused on a series of complaints about Ms. Maxwell's pretrial detention. As I have said in many sentencing 6 proceedings since the pandemic began, the conditions in the MDC have been extremely difficult for all inmates as a result. 7 There have been extended periods of lockdown, health risks, and the lack of access to legal and social visits and programming 8 and the like. Conditions at the MDC are, to put it mildly, not what they should be, and serving time during the pandemic has 9 been more difficult than serving time before it. As I have in other sentencings, I take into account this in imposing an 10 appropriate sentence. I also take into account that, as a high-profile defendant charged and convict of sex offenses against 11 minors, Ms. Maxwell faces security risks and has endured additional isolation and surveillance beyond the typical pretrial 12 detainee. 13 That said, I largely reject the defense's primary written contention that Ms. Maxwell has been singled out for uniquely harsh 14 and punishing treatment. To the contrary, I agree with the government that many of the complaints have been 15 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021639 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page210 of 217 SA-464 M6s2Max2 95 1 unfounded and exaggerated and that Ms. Maxwell's treatment at 2 MDC was overall as good as or better than that of the typical 3 pretrial detainee at the MDC during the pandemic. 4 I also reject the repeated allegations that 5 Ms. Maxwell, who was provided extensive access to computers and 6 legal materials, as well as to highly involved counsel, was in 7 any way not able to prepare for trial or sentencing. I will 8 say that I think a lack of full candor regarding treatment is 9 consistent with a lack of candor to Pretrial Services and to 10 the Court regarding finances, as well as the dishonesty that I 11 have concluded occurred during the civil deposition that makes 12 up the perjury counts. Overall, the behaviour appears 13 consistent with a pattern of deflection of blame. 14 I will note that I was -- I would emphasize that the 15 sentencing submission talks about these complaints and blames 16 others but did not express remorse or acceptance of 17 responsibility. Ms. Sternheim and Ms. Maxwell today 18 acknowledge the courage of the victims who testified and who 19 spoke, talked about the pain and anguish that they have 20 expressed, to some extent acknowledged the impact on them and 21 their suffering, and I think that is important for the victims 22 to hear. What there wasn't expressed was acceptance of 23 responsibility. Now let me be clear. Ms. Maxwell is fully 24 entitled to exercise her constitutional -- was fully entitled 25 and is fully entitled to exercise her constitutional right to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021640 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page211 of 217 SA-465 M6s2Max2 96 1 go to trial. She has every right to appeal that verdict. But 2 it is appropriate for this Court, in the face of genuine 3 expressions of remorse and acceptance of responsibility, to 4 decrease punishment because that's part of the message that's 5 being sent by the law. It's appropriate to note and to take 6 into account a lack of acceptance of responsibility, a lack of 7 expression of remorse as to her own conduct. Today's sentence 8 will attempt to acknowledge the harm that Ms. Maxwell caused 9 and it will strongly and unequivocally condemn her criminal 10 conduct. 11 I do conclude, consistent with the Probation 12 Department recommendation, that a sentence of 240 months, which 13 is slightly above the guideline range that I found, is both 14 sufficient and necessary -- and no greater than necessary to 15 meet the purposes of punishment that I have described. 16 I will now formally state the sentence I intend to 17 impose. I will ask Ms. Maxwell and her counsel to please rise. 18 Ms. Maxwell, it is the judgment of this Court that you 19 be sentenced to a period of 240 months, 20 years, to be 20 followed by a period of five years' supervised release. 21 You may be seated. 22 To be precise, I am sentencing Ms. Maxwell to 60 23 months on Count Three, 120 months on Count Four, and 240 months 24 on Count Six, all to run concurrently, for a total of 240 25 months' imprisonment. I am sentencing her to three years of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021641 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page212 of 217 SA-466 97 M6s2Max2 1 supervised release on Counts Three and Four and five years on 2 Count Six, all to run concurrently, for a total of five years 3 of supervised release. 4 Defense counsel indicated no objection to the 5 conditions of supervised release indicated in the presentence 6 report, and so I impose them precisely as stated in the 7 presentence report, including the standard conditions, special 8 conditions, and mandatory conditions of supervised release. 9 Again, I am imposing them precisely as stated in the PSR. 10 I order Ms. Maxwell to pay a fine in the amount of 11 $750,000. The maximum amount per count is $250,000, so that is 12 $750,000 total. As I have indicated, I reject the contention 13 that the defendant is unable to pay a fine. Ms. Maxwell has 14 received a $10 million bequest from Epstein. This is in 15 addition to her other assets. And the defendant, I conclude, 16 is able to afford a substantial fine, and I conclude that the 17 maximum amount per count is reasonable under all relevant 18 circumstances in light of the counts of conviction. 19 The government has indicated that it is not seeking 20 restitution nor forfeiture. 21 I am imposing a mandatory special assessment, as I 22 must, of $100 per count, which is due immediately. 23 Does either counsel know of any legal reason, other 24 than those already argued, why the sentence shall not be 25 imposed as stated? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021642 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page213 of 217 M6s2Max2 98 1 MS. MOE: No, your Honor. 2 MS. STERNHEIM: Your Honor, I would just like to make 3 one statement, if I may. With regard to the fine, the Court 4 indicated the bequest in the will. I just want the record to 5 reflect that that is an unactualized bequest, as Ms. Maxwell 6 has received nothing, and it is the expectation that she will 7 receive nothing. 8 THE COURT: I understand. And to be clear, I am not 9 finding and accept that she hasn't received anything, but there 10 have only been nonspecific claims that she won't receive 11 anything and there are additional assets that lead me to the 12 conclusion that she is able to pay the fine. 13 MS. STERNHEIM: Thank you, Judge. 14 THE COURT: Thank you. 15 And just to confirm, Ms. Sternheim, any legal reason 16 why the sentence should not be imposed as stated other than 17 what already was argued? 18 MS. STERNHEIM: No, your Honor, but I do have requests 19 for recommendation. 20 THE COURT: I will get there. Thank you. 21 The sentence as stated is imposed. I do find the 22 sentence is sufficient but not greater than necessary to 23 satisfy the sentencing purposes that I described earlier. 24 Ms. Maxwell, when you are released and on supervised 25 release, you will have the guidance and support of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021643 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page214 of 217 M6s2Max2 99 1 probation department. I must caution you to comply strictly 2 with all of your conditions of supervised release. If you are 3 brought back before me for a violation of those conditions, I 4 may sentence you to another term of imprisonment. 5 With that, Ms. Sternheim, requests regarding 6 designation? 7 MS. STERNHEIM: Thank you, Judge. 8 We request that Ms. Maxwell be designated, based on a 9 recommendation by the Court, to the BOP facility, the women's 10 facility in Danbury, and also a recommendation that she be 11 enrolled in the FIT program, which is the Female Integrated 12 Treatment program, to address past familial and other trauma. 13 THE COURT: Okay. 14 MS. STERNHEIM: Thank you. 15 THE COURT: I recommend to the Bureau of Prisons 16 consideration of placement in Danbury and consideration of 17 eligibility for enrollment in the FIT program. 18 Ms. Moe, remaining counts and underlying indictments 19 that need to be dismissed at this time? 20 MS. MOE: Yes, your Honor. The government moves to 21 dismiss Counts Seven and Eight and any underlying indictments. 22 THE COURT: The motion is granted. Counts Seven and 23 Eight are dismissed and any underlying indictments are 24 dismissed. 25 Ms. Maxwell, I am required to inform you of your SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021644 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page215 of 217 SA-469 100 M6s2Max2 1 appellate rights. You have the right to appeal your conviction 2 and your sentence. The notice of appeal must be filed within 3 14 days of the judgment of conviction. 4 Other matters to take up counsel? 5 MS. MOE: Not from the government, your Honor. Thank 6 you. 7 MS. STERNHEIM: No. Thank you. 8 THE COURT: Let me note, I will issue a housekeeping 9 order posttrial to ensure complete docketing of all -- any 10 outstanding materials and complete records, so please look for 11 that. I will issue the judgment -- I should just say, Ms. Moe, 12 the Court intends to indicate the end of the conspiracy date as 13 the last date in the record, which I believe is in July of 14 2004, of acts in furtherance of the criminal conduct, and 15 obviously the government took a different position with respect 16 to that. But in light of the Court's finding, any objection to 17 that? 18 MS. MOE: No, your Honor. We will review the 19 exhibits. If that date is different from the sentencing 20 transcript, we will submit a letter to the Court, but otherwise 21 no objection, your Honor. 22 MS. STERNHEIM: No objection. 23 THE COURT: All right. 24 MS. MOE: With apologies, your Honor, with respect to 25 the judgment, in light of the Court's decision to impose an SOUTHERN DISTRICT REPORTERS, P.C.... (212) 805-0300 DOJ-OGR-00021645 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page216 of 217 SA-470 M6s2Max2 101 1 above-guidelines sentence and an above-guidelines fine, we 2 would respectfully request that the Court address both the 3 sentence and the fine in the Court's statement of reasons. 4 THE COURT: Yeah, I actually -- guideline range, let 5 me just check. I meant to talk about that. I'm not sure it is 6 an above-guidelines, but it may be since, as we know, I read 7 over five to mean five. So maybe I got that wrong. Let me 8 just check. 9 Oh, you are right. It is 20 to 200,000 for each 10 count. Do I have that right? 11 MS. MOE: Yes, your Honor. Thank you. 12 THE COURT: All right. Thank you. 13 I want to thank counsel. As I indicated, I do thank 14 the victims who made statements in writing or orally and their 15 counsel who supported them in that endeavor. I thank counsel 16 for Ms. Maxwell and counsel for the government. 17 We are adjourned. 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021646 --- PAGE BREAK --- Case 22-1426, Document 78, 06/29/2023, 3536039, Page217 of 217 SA-471 Jeffrey and Ghislaine have been together, a couple, for the last 11 years. They are, contrary to what many people think, rarely apart - I almost always see them together. Ghislaine is highly intelligent, and great company with a ready smile and an infectious laugh who always puts one at ones ease, and always makes one feel welcome. Jeffrey and Ghislaine share many mutual interests and they have a lot of fun together. They both have keen searching and inquisitive minds. She grew up amongst scientists and in an academic and business environment. They share a love of travel and art. She speaks 5 languages. She enjoys spending time visiting auction houses (she says that is the best way to learn about art and antiques - your expected to look touch and ask questions) Ghislaine also has her own interests and has her own business pursuits - she is independent and strong willed - something which Jeffrey loves about her - She is adventurous - she flies helicopters, she is athletic - she rides horses, plays tennis, skis and scuba dives. She is a serious photographer (she always has a camera in hand) who is collaborating with some of the leading people involved at the cutting edge of digital photography. Jeffrey and Ghislaine compliment each other really well and I cannot imagine one without the other. On top of being great partners they are also the best of friends. GOVERNMENT EXHIBIT 422 S2 20 Cr. 330 (AJN) DOJ-OGR-00021647