Document 94

Case 1:20-cr-00330-AJN Document 94 Filed 12/10/20 Page 1 of 1 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK UNITED STATES OF AM USA / Plaintiff(s) ) ) Case No: 20 Cr. 330 v. ) ) GHISLAINE MAXWELL, ) Defendant(s) ) ) ) NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a conference held on 7/14/20 has been filed by the court reporter/transcriber in the above-captioned matter. Redaction responsibilities apply to the attorneys of record or pro se parties, even if the person requesting the transcript is a judge or a member of the public or media. The parties have seven (7) calendar days from the date of filing of this NOTICE to file with the court any NOTICE OF INTENT TO REQUEST REDACTION of this transcript. A copy of said NOTICE must also be served on the court reporter. If no such NOTICE is filed, the transcript may be made remotely electronically available to the public without redaction after ninety (90) calendar days. This process may only be used to redact the following personal data identifiers: Social Security numbers; dates of birth; minors' names; and financial account numbers. See Federal Rule of Civil Procedure 5.2, and Federal Rule of Criminal Procedure 49.1. Parties wishing to request redaction of other information may proceed by motion. I (we) certify that the foregoing is a correct transcript from the record of proceedings in the above-entitled matter. /S KRISTEN CAI Court Reporter/Transcriber Date DOJ-OGR-00001969 --- PAGE BREAK --- Case 20-3061, Document 94, 10/08/2020, 2948481, Page1 of 23 20-3061 United States Court of Appeals for the Second Circuit United States of America Plaintiff-Appellee, —against— Ghislaine Maxwell, Defendant-Appellant. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, 20-CR-330 (AJN) Ghislaine Maxwell's Reply Brief Ty Gee Adam Mueller HADDON, MORGAN AND FOREMAN, P.C. 150 East 10th Avenue Denver, CO 80203 Tel. 303.831.7364 Attorneys for Defendant-Appellant Ghislaine Maxwell --- PAGE BREAK --- Case 22-1426, Document 94, 02/06/2024, 36084119, Page1 of 2 United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse 40 Foley Square New York, NY 10007 DEBRA ANN LIVINGSTON CHIEF JUDGE Date: February 06, 2024 Docket #: 22-1426cr Short Title: United States of America v. Maxwell CATHERINE O'HAGAN WOLFE CLERK OF COURT DC Docket #: 1:20-cr-330-1 DC Court: SDNY (NEW YORK CITY) DC Judge: Nathan NOTICE OF HEARING DATE Argument Date/Time: Tuesday, March 12, 2024 at 10:00am Location: Thurgood Marshall U.S. Courthouse, 40 Foley Square, New York, NY, 10007, 17th Floor, Room 1703 Time Allotment: 10 minutes per side Counsel and non-incarcerated pro se litigants presenting oral argument must register with the courtroom deputy 30 minutes before argument. The Court prefers to hold argument in person. However, argument may be held by Zoom, teleconference, or a combination of in-person and remote arguments, depending upon then current pandemic-related considerations. A party who has demonstrated good cause by motion and judges may participate remotely. If an argument is remote, the parties will receive instructions to access Zoom or the teleconference. Individuals who arrive at the courthouse for argument must meet the health screening requirements and entrance protocols specified at the entrance to the building and should check the Court's website under Announcements for up to date information. A motion or stipulation to withdraw with or without prejudice must be filed no later than 3 business days prior to the scheduled date of argument. The Court will consider the motion or stipulation at the time of argument, and counsel's appearance is required with counsel prepared to argue the merits of the case. If a stipulation to withdraw with prejudice is based on a final settlement of the case, the fully-executed settlement must be reported immediately to the Calendar Team, and a copy of it must be attached to the stipulation. Inquiries regarding this case may be directed to 212-857-8595. See page 2 for additional information. DOJ-OGR-00021779 --- PAGE BREAK --- Case 20-3061, Document 94, 10/08/2020, 2948481, Page2 of 23 Table of Contents Table of Contents ............................................... i Table of Authorities ............................................... ii Introduction ....................................................... 1 Jurisdiction ....................................................... 2 Argument ....................................................... 13 Conclusion ....................................................... 18 Certificate of Compliance with Rule 32(A) ............................................... 20 Certificate of Service ............................................... 20 i DOJ-OGR-00019648 --- PAGE BREAK --- Case 22-1426, Document 94, 02/06/2024, 3608419, Page2 of 2 Counsel must file the completed form in accordance with Local Rule 25.1 or 25.2. Pro Se parties must submit the form in paper. Name of the Attorney/Pro Se presenting argument: Firm Name (if applicable): Current Telephone Number: The above named attorney represents: ( ) Appellant/Petitioner ( ) Appellee-Respondent ( ) Intervenor Date: ________________________ Signature: ________________________ NOTICE TO THE BAR Recording of Argument. An audio recording of oral argument is available on the Court's website. In addition, a CD of an argument may be purchased for $34 per CD by written request to the Clerk. The request should include the case name, the docket number and the date or oral argument. CDs will be delivered by first class mail unless the request instructs to hold for pick-up or requests Federal Express Service, in which case a Federal Express account number and envelope must be provided. Court Reporters. Parties may arrange - at their own expense - for an official court reporter to transcribe argument from a copy of the hearing tape or to attend and transcribe the hearing directly. A party must first obtain written consent from opposing counsel - or move the Court for permission - to have the court reporter attend and transcribe the hearing and must provide the calendar clerk written notice, including the name, address and telephone number of the attending reporter and, if applicable, the reporting firm at least one week prior to the hearing date. Interpreter Services for the Hearing Impaired. Counsel requiring sign interpreters or other hearing aids must submit a written notice to the Calendar Team at least one week before oral argument. Rev. 10/2023 DOJ-OGR-00021780 --- PAGE BREAK --- Case 22-1426, Document 94, 02/00/2024, 3608350, Page2 of 2 Counsel must file the completed form in accordance with Local Rule 25.1 or 25.2. Pro Se parties must submit the form in paper. Name of the Attorney/Pro Se presenting argument: Andrew Rohrbach Firm Name (if applicable): U.S. Attorney's Office - SDNY Current Telephone Number: 212-637-1944 The above named attorney represents: ( ) Appellant/Petitioner (X) Appellee-Respondent ( ) Intervenor Date: 2/22/2024 Signature: Andrew A. Rohrbach NOTICE TO THE BAR Recording of Argument. An audio recording of oral argument is available on the Court's website. In addition, a CD of an argument may be purchased for $34 per CD by written request to the Clerk. The request should include the case name, the docket number and the date or oral argument. CDs will be delivered by first class mail unless the request instructs to hold for pick-up or requests Federal Express Service, in which case a Federal Express account number and envelope must be provided. Court Reporters. Parties may arrange - at their own expense - for an official court reporter to transcribe argument from a copy of the hearing tape or to attend and transcribe the hearing directly. A party must first obtain written consent from opposing counsel - or move the Court for permission - to have the court reporter attend and transcribe the hearing and must provide the calendar clerk written notice, including the name, address and telephone number of the attending reporter and, if applicable, the reporting firm at least one week prior to the hearing date. Interpreter Services for the Hearing Impaired. Counsel requiring sign interpreters or other hearing aids must submit a written notice to the Calendar Team at least one week before oral argument. Rev. 10/2023 DOJ-OGR-00021783 --- PAGE BREAK --- Case 20-3061, Document 94, 10/08/2020, 2948481, Page3 of 23 Table of Authorities Cases Brown v. Maxwell, 929 F.3d 41 (2d Cir. 2019)...............................................8, 16 In re Teligent, Inc., 640 F.3d 53 (2d Cir. 2011)...............................................1 Martindell v. International Telephone & Telegraph Corp., 594 F.2d 291 (2d Cir. 1979)................................................passim Nixon v. Warner Commc'ns, 435 U.S. 589 (1978)...............................................16 Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993).....2 United States v. Caparros, 800 F.2d 23 (2d Cir. 1986).......................................5 United States v. Sells Eng'g, Inc., 463 U.S. 418 (1983).......................................14 Will v. Hallock, 546 U.S. 345 (2006)................................................2, 7 Statutes 28 U.S.C. § 1291........................................................3 Rules Fed. R. Crim. P. 6(e)................................................13, 14 Constitutional Provisions U.S. CONST. amend. V................................................9, 16 U.S. CONST. amend. VI ................................................16 ii DOJ-OGR-00019649 --- PAGE BREAK --- Case 20-3061, Document 94, 10/08/2020, 2948481, Page4 of 23 Introduction The government's brief suffers from two fundamental flaws. It obscures the relief Ms. Maxwell actually seeks, and it confuses the arguments she actually makes. As to the relief she seeks, Ms. Maxwell's request is specific and narrow: She seeks permission to share relevant information, under seal, with other Article III judicial officers, specifically Judge Preska and the panel of this Court deciding the appeal of Judge Preska's order unsealing the civil deposition material, Giuffre v. Maxwell, No. 20-2413. Only by obscuring what Ms. Maxwell actually seeks can the government claim with a straight face that this appeal won't be moot if this Court declines to exercise jurisdiction now. As to the arguments she makes, there are several (fairly obvious) reasons why Judge Preska and this Court should know just how prosecutors obtained the deposition material and who turned it over to them. If Judge Preska knew this information, she might very well decline to unseal Ms. Maxwell's deposition transcripts to protect Ms. Maxwell's ability in the criminal case to litigate the government's violation of Martindell v. International Telephone & Telegraph Corp., 594 F.2d 291 (2d Cir. 1979), cited with approval in In re Teligent, Inc., 640 F.3d 53, 58 (2d Cir. 2011). She might also reconsider whether Ms. Maxwell reasonably relied 1 DOJ-OGR-00019650 --- PAGE BREAK --- on the civil protective order's guarantee of confidentiality in declining to invoke her Fifth Amendment right to remain silent. Instead of fairly addressing these arguments, however, the government retreats to the claim that Ms. Maxwell “does not articulate” or “does not explain” why Judge Preska and this Court need to know . Ans.Br. 18 n.4 & 27. But just because the government lacks a persuasive response does not mean Ms. Maxwell hasn’t explained or articulated herself. The question then is what could justify keeping Judge Preska and this Court in the dark about the relevant facts. And if that's the question, the government's brief provides no answer. Jurisdiction There are three conditions to seeking interlocutory review under the collateral order doctrine: The order on appeal must (1) conclusively determine the disputed question, (2) resolve an important issue completely separate from the merits of the action, and (3) be effectively unreviewable on appeal from a final judgment. Will v. Hallock, 546 U.S. 345, 349 (2006) (citing Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993)). The government --- PAGE BREAK --- Case 20-3061, Document 94, 10/08/2020, 2948481, Page6 of 23 does not appear to dispute that Judge Nathan's order satisfies the first two conditions.1 Instead, the government focuses on the third condition, arguing that Ms. Maxwell can appeal Judge Nathan's order after her criminal jury trial. Ans.Br. 16. But the government can make this argument only by obscuring the relief Ms. Maxwell actually seeks. To be clear, Ms. Maxwell seeks permission to share with Judge Preska and this Court, under seal, just what the government obtained 1 Perhaps suggesting that Judge Nathan's order is not "final," the government notes that the order "did not end the entire litigation as to [Ms.] Maxwell. To the contrary, [Ms.] Maxwell is scheduled to file pretrial motions in December 2020 and to proceed to trial in July 2021." Ans.Br. 14. This is just a truism, as no one disputes that "Judge Nathan's Order did not end the entire litigation." If it had, Ms. Maxwell would have invoked this Court's jurisdiction under 28 U.S.C. § 1291. But it is because "Judge Nathan's Order did not end the entire litigation" that Ms. Maxwell invokes the collateral order doctrine as a basis for this Court's jurisdiction. And in evaluating the applicability of that doctrine, the government does not appear to dispute that Judge Nathan's order "conclusively determined the disputed question": Whether the criminal protective order should be modified. That is all "finality" requires in the collateral order context. 3 DOJ-OGR-00019652 --- PAGE BREAK --- Case 20-3061, Document 94, 10/08/2020, 2948481, Page7 of 23 and how it obtained it (by circumventing this Court's decision in Martindell). Judge Preska needs that information now, not later, because her order unsealing the deposition material is about to go into effect and because she is poised to decide whether and to what extent to keep unsealing the sealed material in the civil case. The panel of this Court reviewing Judge Preska's order needs that information now, not later, because it is poised to review Judge Preska's order unsealing the deposition material without the benefit of knowing all the relevant information. And unless this Court is privy to the relevant information, it won't be able to decide whether Judge Preska should reconsider her order given. Ms. Maxwell simply asks this Court to review these issues now, before it's too late. A post-trial appeal will be too late. By that time, if this Court affirms Judge Preska's unsealing order without the benefit of knowing all the facts, Ms. Maxwell's April 2016 deposition will be publicly released. By that time, Judge Preska will have largely if not entirely decided what other material from the civil case should be unsealed. By that time, it will be too late for Ms. Maxwell to seek a stay of the unsealing process and fairly explain why a stay is appropriate. And by that time, there won't be a way to "re-seal" material prematurely released to the 4 DOJ-OGR-00019653 --- PAGE BREAK --- Case 20-3061, Document 94, 10/08/2020, 2948481, Page8 of 23 public.2 Op.Br. 16. (distinguishing United States v. Caparros, 800 F.2d 23 (2d Cir. 1986)). The government argues that Ms. Maxwell can wait until after the criminal trial to challenge whether, for example, Judge Preska's unsealing decisions produce unfair pretrial publicity in the criminal case. But a panel of this Court considering an appeal in the criminal case presided over by Judge Nathan won't have any jurisdiction to review orders entered by Judge Preska in the civil case. The time for reviewing Judge Preska's unsealing order in the civil case is right now in the appeal of Judge Preska's order, Giuffre v. Maxwell, No. 20-2413. The government also argues that, in a post-trial appeal, Ms. Maxwell can challenge the government's conduct in obtaining Ms. Maxwell's deposition transcripts and the use of those transcripts as a basis for two perjury counts. 2 This Court should accordingly reject the government's argument that "[t]o the extent Maxwell still wishes to use materials she obtained through criminal discovery for other purposes after entry of final judgment in the criminal case, she can seek authorization from this Court to do so then." Ans.Br. 17. Similarly, the government misunderstands the relief Ms. Maxwell seeks when it contends that "[i]f Maxwell complains that her inability to use criminal discovery materials in civil matters may result in premature unsealing . . . , she can . . . raise [that] claim [] before this Court on appeal after entry of final judgment in her criminal case." Ans.Br. 17. A post-final-judgment appeal will do no good because there is no way to "re-seal" material already unsealed and no way to retroactively stay an unsealing process that is largely if not entirely complete. 5 DOJ-OGR-00019654 --- PAGE BREAK --- Case 20-3061, Document 94, 10/08/2020, 2948481, Page9 of 23 Ans.Br. 18. But as Ms. Maxwell explained in her opening brief, if Judge Preska orders the deposition transcripts unsealed, the government will invoke Judge Preska's order as a shield against its improper conduct. Op.Br. 27-28, 30. The government will argue that it would have inevitably discovered Ms. Maxwell's deposition transcripts or that any improper conduct on its part was ultimately harmless. Op.Br. 30. Conspicuously, the government in the answer brief never denies that it will make such an argument. Ans.Br. 18 & n.4. The government responds that if Ms. Maxwell “is concerned that unsealing will open up an inevitable discovery argument for the Government, she can explain to Judge Nathan when making a suppression motion how an unsealing decision would have been altered by revelation of criminal discovery materials to the unsealing court.” Ans.Br. 18. This is fanciful thinking. If this Court affirms Judge Preska's decision unsealing the deposition material, Judge Nathan likely will not (cannot?) reject an inevitable discovery argument from the government. Judge Nathan is not going to second-guess Judge Preska's decision to unseal the deposition material if this Court affirms its release. This, of course, explains why the government has not moved to intervene in Giuffre v. Maxwell, No. 15-cv-7433 (S.D.N.Y.), to stay the unsealing process, or to oppose the unsealing of the deposition material. Because Judge Preska and the panel of this 6 DOJ-OGR-00019655 --- PAGE BREAK --- Case 20-3061, Document 94, 10/08/2020, 2948481, Page10 of 23 Court reviewing Judge Preska's decision deserve to know now , a post-trial appeal is insufficient. This Court, therefore, has jurisdiction under the collateral order doctrine, because Judge Nathan's order is effectively unreviewable on appeal from a final judgment. See Will, 546 U.S. at 349. In its final argument, the government says Ms. Maxwell "fails to explain how the way the Government obtained the confidential criminal discovery materials at issue has any bearing on or in any way affects First Amendment principles governing unsealing decisions in a civil case." Ans.Br. 19. The government also claims that Ms. Maxwell "is already able to share the essential facts she wishes to convey under Judge Nathan's Order." Ans.Br. 19. Neither contention has merit. The first contention is a retread of the government's response to Ms. Maxwell's motion to consolidate, in which the government professed not to understand the relationship between the two cases. Doc. 39, pp 19-21, ¶¶ 26-27. 7 DOJ-OGR-00019656 --- PAGE BREAK --- Case 20-3061, Document 94, 10/08/2020, 2948481, Page11 of 23 And Ms. Maxwell's deposition testimony in the civil case provides the substantive basis for two of the six charges she faces. App. 27–29. As explained in Ms. Maxwell's opening brief, Doc. 60, her motion to consolidate, Doc. 17, and the reply in support, Doc. 54, [REDACTED] For example, in balancing the qualified First Amendment presumption of access (a presumption that is significantly less as applied to the deposition material than the summary judgment material this Court released in Brown v. Maxwell), Judge Preska and this Court must evaluate countervailing considerations including, most prominently, Ms. Maxwell's reliance on the civil protective order. Giuffre v. Maxwell, No. 20-2413, Doc. 40, pp 21–28. [REDACTED] Ms. Giuffre's attorneys repeatedly used the existence of the civil protective order to deflect Ms. Maxwell's arguments about her right to privacy, her right against self-incrimination, and her concern that Ms. Giuffre would use documents in the civil action to support a criminal investigation. Giuffre v. Maxwell, No. 20-2413, Doc. 111, p 20. Ms. Maxwell then did not invoke her Fifth Amendment right to remain silent and instead testified at two depositions. Id. [REDACTED] Ms. Giuffre's attorneys 8 DOJ-OGR-00019657 --- PAGE BREAK --- Case 20-3061, Document 94, 10/08/2020, 2948481, Page12 of 23 repeatedly downplayed the risk of a criminal investigation Ms. Maxwell's reliance on the protective order, an unquestionably valid factor weighing against unsealing, is all the more apparent once it is evaluated in its full context. That context now includes: the grand jury investigation; The information Ms. Maxwell wants to share with Judge Preska and this Court is also relevant to show how the government bypassed Martindell. While this Court (in either appeal) need not pass on the propriety of the government's conduct, preserving Ms. Maxwell's right to litigate that issue before Judge Nathan is essential to her due process right to a fair trial. U.S. CONST. amend. V. If the 9 DOJ-OGR-00019658 --- PAGE BREAK --- Case 20-3061, Document 94, 10/08/2020, 2948481, Page13 of 23 doposition material is prematurely released, as the government so clearly desires, Ms. Maxwell's ability to make the Martindell argument will be compromised.3 Third, Ms. Maxwell intends to move Judge Preska to stay future unsealing pending the outcome of the criminal case. But she cannot fairly make her case to Judge Preska unless Judge Preska knows Judge Preska and the panel of this Court deciding the unsealing appeal are the only relevant actors who don't know the relevant facts. The government's second contention—that Ms. Maxwell can already share the "basic facts" with Judge Preska—misunderstands what Ms. Maxwell seeks to share (under seal and not publicly) and what Judge Nathan's order permits (not very much). According to the government, Ms. Maxwell is free to share the identity of "Court-1" and "Court-2" and the fact that the Government obtained an order from Court-1 permitting the Recipient to comply with a subpoena for materials 3 Surely due process does not contemplate a scenario in which Ms. Maxwell is never permitted to challenge. But that's apparently the government's position. Ms. Maxwell did not know of the proceeding before , so she couldn't argue against . Ms. Maxwell did not know when , so she couldn't appeal. And if Judge Preska's unsealing order goes into effect, the government will seek to deny Ms. Maxwell the right to challenge its conduct before Judge Nathan. 10 DOJ-OGR-00019659 --- PAGE BREAK --- covered by a protective order, that Court-2 subsequently denied similar relief in another case, and that Maxwell “learned of this information (sealed by other courts) as a result of Rule 16 discovery in this criminal matter.” Ans.Br. 27 (quoting App. 101-02). If only it were so simple. What the government doesn’t acknowledge is that, under the protective order and Judge Nathan’s decision declining to modify it, Ms. Maxwell cannot: - Disclose who the “Recipient” is; - Disclose what material the government obtained; - Disclose that the bulk of the government’s criminal case against Ms. Maxwell; - Disclose why (Court-2) declined the government’s request; 11 --- PAGE BREAK --- Case 20-3061, Document 94, 10/08/2020, 2948481, Page15 of 23 Disclose why (Court-1) granted the government's request . The "basic facts" Ms. Maxwell is allowed to share thus do not include the "material facts." *** The collateral order doctrine is, admittedly, the exception and not the rule. Its purpose is to avoid delay and piecemeal appeals.4 But it's not as inflexible as the government suggests, and its application is not oblivious to reality. It is a practical doctrine that exists for those few cases in which a post-trial appeal is inadequate to the task and the issue for immediate appeal is separable from the merits. This appeal, novel as it is, falls within those parameters.5 4 Although the government says it "remains to be seen" whether this appeal will delay the criminal case, it offers no specifics or even speculation about how such a delay might be occasioned. Ans.Br. 19 n.5. To be clear, this appeal has nothing to do with the merits of the government's allegations against Ms. Maxwell, and it will not delay the criminal trial. 5 As for Ms. Maxwell's alternative request that this Court exercise mandamus jurisdiction, the government's brief denies that Judge Nathan abused her discretion but doesn't otherwise contend that this Court may exercise mandamus jurisdiction. Ans.Br. 20–21. Because, as explained below, Judge Nathan abused her discretion, this Court should issue a writ of mandamus if it concludes that it lacks jurisdiction under the collateral order doctrine. 12 DOJ-OGR-00019661 --- PAGE BREAK --- Case 20-3061, Document 94, 10/08/2020, 2948481, Page16 of 23 Argument Apart from obscuring the relief Ms. Maxwell actually seeks, the other major feature of the government's brief is its confusion of the arguments Ms. Maxwell actually makes on the merits. And nothing is more illustrative of the government's confusion than this fact: The answer brief doesn't even cite this Court's decision in Martindell. The closest the government comes to acknowledging Ms. Maxwell's argument is to say this: "To maintain the integrity of the grand jury investigation and in accordance with both Federal Rule of Criminal Procedure 6(e) and its standard practice, the Government did not notify Maxwell or her counsel of the Subpoenas." Ans.Br. 5. But standard practice doesn't justify circumventing a thirty-year-old decision of this Court, which required notice to Ms. Maxwell. Martindell, 594 F.2d at 294; App. 368-69 Moreover, nothing in Rule 6(e) relieved the government of its burden to comply with Martindell by seeking to intervene in the civil case or by otherwise giving Ms. Maxwell notice of the subpoena and an opportunity to move to quash. Rule 6(e)(2)(vi) says that "an attorney for the government" "must not disclose a matter occurring before the grand jury." The was not a "matter occurring before the grand jury." And 13 DOJ-OGR-00019662 --- PAGE BREAK --- Case 20-3061, Document 94, 10/08/2020, 2948481, Page17 of 23 nothing prohibited from informing Judge Preska and Ms. Maxwell about the subpoena; Rule 6(e) does not apply to grand jury witnesses. United States v. Sells Eng'g, Inc., 463 U.S. 418, 425 (1983). Despite the government's attempt (once again) to mischaracterize Ms. Maxwell's argument,6 this Court need not in this case wade into the propriety of the government's conduct. All Ms. Maxwell seeks is the preservation of her ability to challenge the government's conduct before Judge Nathan. This Court should permit Ms. Maxwell a fair opportunity to persuade Judge Preska and the panel of this Court reviewing her order that the status quo should be preserved. The government again implies that because Ms. Maxwell consented to the protective order she can't now complain that it should be modified. Ans.Br. 23-24.7 The government points out that, at the time of her consent, Ms. Maxwell knew 6 The government says that Ms. Maxwell's brief "appears to be a thinly veiled attempt to have this Court weigh in on the Government's investigative methods." Ans.Br. 26. That is not so. All Ms. Maxwell seeks is the ability to fairly challenge before Judge Nathan the government's "investigative methods." As the government does not dispute, that challenge will be compromised unless the deposition material remains sealed. But Judge Preska and the panel of this Court reviewing Judge Preska don't know that, and the government wants to keep it that way. 7 Moreover, the purpose of the criminal protective order's prohibition on using criminal discovery in a civil case is to prevent the introduction of new information in a civil case to gain an advantage. Ms. Maxwell's requested —footnote cont'd on next page— 14 DOJ-OGR-00019663 --- PAGE BREAK --- Case 20-3061, Document 94, 10/08/2020, 2948481, Page18 of 23 "the Government had charged her with perjury in connection with civil cases." Ans.Br. 23 n.7. But knowing that the government had copies of her depositions is a far cry from knowing Ms. Maxwell's original consent to the criminal protective order is irrelevant to this appeal. The government next argues that Ms. Maxwell has not offered a "coherent explanation of how the criminal discovery materials could have any conceivable impact on the issues pending in civil litigation." Ans.Br. 24. To the contrary, Ms. Maxwell has repeatedly explained why the criminal discovery is relevant to Judge Preska and the panel of this Court reviewing Judge Preska's order. Op.Br. 26-33. In addition to the reasons identified above, This Brief, supra at 7-10, Judge Preska simply never had before her the full picture when deciding whether to unseal the deposition material. So Judge Preska never considered the government's position that the sealed material should not be released because it might prejudice the ongoing investigation. Nor did she consider Judge Nathan's view, embodied in modification of the criminal protective order is fully consistent with that purpose, because she seeks only: (1) to share relevant information with Judge Preska; (2) under seal; (3) ; and (4) to facilitate Judge Preska in performing a non-merits task assigned to her by this Court. 15 DOJ-OGR-00019664 --- PAGE BREAK --- Case 20-3061, Document 94, 10/08/2020, 2948481, Page19 of 23 the criminal protective order, that should not be used except in the criminal case and therefore should not be released publicly.8 This Court tasked Judge Preska with evaluating whether and to what extent the civil case filings should be unsealed considering the totality of the circumstances. Brown v. Maxwell, 929 F.3d 41, 47 & n.13 (2d Cir. 2019). Judge Preska is performing this task ignorant of the fact that Unless the criminal protective order is modified, Judge Preska will remain in the dark, and she will never be given the opportunity to consider the circumstances in their totality. The government appears to have abandoned the argument it made to Judge Nathan that modifying the protective order threatens the secrecy of the ongoing grand jury investigation. Op.Br. 31-32. And for good reason. Ms. Maxwell has never sought to make public material the criminal protective order shields from disclosure. All she seeks is permission to share, under seal, information 8 The government's view that should not be released, and Judge Nathan's order to that effect, also lend support to Ms. Maxwell's contention that the release of the deposition material by Judge Preska will unfairly prejudice her right to a fair trial by an impartial jury. See U.S. CONST. amends. V, VI; Nixon v. Warner Commc'ns, 435 U.S. 589, 598 (1978). 16 DOJ-OGR-00019665 --- PAGE BREAK --- Case 20-3061, Document 94, 10/08/2020, 2948481, Page20 of 23 Giuffre v. Maxwell but kept secret from Judge Preska and this Court. Finally, the government offers a halfhearted defense of its decision to intervene in Doe v. Indyke, No. 20-cv-00484 (S.D.N.Y.), while choosing to remain on the sidelines of Giuffre v. Maxwell. Ans.Br. 28-29 n.8. According to the government, there is no need to intervene in Giuffre v. Maxwell because discovery was already completed while discovery in Doe v. Indyke was just beginning. But this distinction ignores the government's position on the confidentiality of the criminal discovery material in this case. Again, In the criminal case, the government insists that Ms. Maxwell must not be allowed to share their contents with Judge Preska or this Court, even under seal. But if that's right, then the government should oppose unsealing any filings from Giuffre v. Maxwell The government, of course, hasn't done that, and its answer brief offers no explanation why. The reason, 17 DOJ-OGR-00019666 --- PAGE BREAK --- Case 20-3061, Document 94, 10/08/2020, 2948481, Page21 of 23 though, is obvious: The government wants to shield itself from Ms. Maxwell's forthcoming motion before Judge Nathan challenging its circumvention of Martindell. This Court should not prejudge the Martindell issue as the government seeks. Conclusion At bottom, when asked to justify why Judge Preska and this Court should remain in the dark, the government offers little more than this: because the protective order says so. But in the face of all the reasons why the relevant judicial decision makers should have all the relevant information, the government's answer is not good enough. This Court should reverse the district court's order denying Ms. Maxwell's motion to modify the protective order. October 8, 2020. 18 DOJ-OGR-00019667 --- PAGE BREAK --- Case 20-3061, Document 94, 10/08/2020, 2948481, Page22 of 23 Respectfully submitted, s/ Adam Mueller Ty Gee Adam Mueller HADDON, MORGAN AND FOREMAN, P.C. 150 East 10th Avenue Denver, CO 80203 Tel 303.831.7364 Fax 303.832.2628 tgee@hmflaw.com amueller@hmflaw.com Counsel for Defendant-Appellant Ghislaine Maxwell 19 DOJ-OGR-00019668 --- PAGE BREAK --- Case 20-3061, Document 94, 10/08/2020, 2948481, Page23 of 23 Certificate of Compliance with Rule 32(A) This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B). It contains 4,096 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(III). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the typestyle requirements of Fed. R. App. P. 32(a)(6). It has been prepared in a proportionally spaced typeface using Microsoft Word 2010 in 14 pt. Equity. s/ Adam Mueller Certificate of Service I certify that on October 8, 2020, I filed Ms. Maxwell's Reply Brief with the Court via CM/ECF, which will send notification of the filing to all counsel of record. s/ Nicole Simmons 20 DOJ-OGR-00019669