Case Information
*1
ALISON J. NATHAN, District Judge:
In June 2020, a grand jury returned a six-count indictment charging Ghislaine Maxwell with facilitating the late financier Jeffrey Epstein’s sexual abuse of minor victims from around 1994 to 1997. The Government filed a first (S1) superseding indictment shortly thereafter, which contained only small, ministerial corrections. The S1 superseding indictment included two counts of enticement or transportation of minors to engage in illegal sex acts in violation of the Mann Act and two counts of conspiracy to commit those offenses. It also included two counts of perjury in connection with Maxwell’s testimony in a civil deposition. Trial is set to begin on July 12, 2021.
Maxwell filed twelve pretrial motions seeking to dismiss portions of the S1 superseding indictment, suppress evidence, and compel discovery. After the parties fully briefed those motions, a grand jury returned a second (S2) superseding indictment adding a sex trafficking count and another related conspiracy count.
This Opinion resolves all of Maxwell’s currently pending pretrial motions other than those seeking to suppress evidence, which the Court will resolve in due course. The motions, and this Opinion, deal exclusively with the S1 superseding indictment and do not resolve any issues related to the newly added sex trafficking charges. For the reasons that follow, the Court denies Maxwell’s motions to dismiss the S1 superseding indictment in whole or in part. It grants her motion to sever the perjury charges for a separate trial. It denies her motion to further expedite discovery.
The Court provides a brief summary of its conclusions here and its reasoning on the pages that follow:
• Maxwell moves to dismiss all counts based on a non-prosecution agreement between Jeffrey Epstein and the U.S. Attorney for the Southern District of Florida. The Court concludes that the agreement does not apply in this District or to the charged offenses.
• Maxwell moves to dismiss all counts as untimely. The Court concludes that the Government brought the charges within the statute of limitations and did not unfairly delay in bringing them.
• Maxwell moves to dismiss the Mann Act counts because they are too vague, or in the alternative to require the Government to describe the charges in greater detail. The Court concludes that the charges are specific enough.
• Maxwell moves to dismiss the perjury counts because, in her view, her testimony responded to ambiguous questioning and was not material. The Court concludes that these issues are best left for the jury.
• Maxwell moves to sever the perjury counts from the Mann Act counts so that they can proceed in a separate trial. The Court concludes that severance is appropriate and will try the perjury counts separately.
• Maxwell moves to strike language from the indictment that she believes is superfluous and to dismiss conspiracy counts she believes are redundant. The Court concludes that these motions are premature before trial.
• Maxwell moves to compel the Government to immediately disclose certain categories of evidence. The Court concludes that she is not entitled to do so, but the Court will order Maxwell and the Government to confer on a discovery schedule.
• Maxwell moves to dismiss all counts because a grand jury in White Plains, rather than Manhattan, returned the S1 superseding indictment. Because a jury in Manhattan returned the S2 superseding indictment, the motion appears moot.
I. Jeffrey Epstein’s non-prosecution agreement does not bar this prosecution
In September 2007, under investigation by both federal and state authorities, Jeffrey Epstein entered into a non-prosecution agreement (“NPA”) with the Office of the United States Attorney for the Southern District of Florida. Dkt. No. 142 at 1-2. Epstein agreed in the NPA to plead guilty in Florida state court to soliciting minors for prostitution and to serve eighteen months in a county jail. Id. In exchange, the U.S. Attorney’s Office agreed not to charge him with federal crimes in the Southern District of Florida stemming from its investigation of his conduct between 2001 and 2007. Id. It also agreed not to bring criminal charges against any of his “potential co-conspirators.” Id.
As a recent report from the Department of Justice’s Office of Professional Responsibility observed, the NPA was unusual in many respects, including its breadth, leniency, and secrecy. OPR Report, Gov. Ex. 3, Dkt. No. 204-3, at x, 80, 175, 179, 260–61. The U.S. Attorney’s promise not to prosecute unidentified co-conspirators marks a stark departure from normal practice for federal plea agreements. This provision appears to have been added “with little discussion or consideration by the prosecutors.” Id. at 169, 185. The report concluded that the U.S. Attorney’s negotiation and approval of the NPA did not amount to professional misconduct, but nonetheless reflected “poor judgment.” Id. at 169.
Only the NPA’s effect, and not its wisdom, is presently before the Court. Maxwell contends that the NPA bars this prosecution, because she is charged as a co-conspirator of Jeffrey Epstein and the NPA’s co-conspirator provision lacks any geographical or temporal limitations. The Court disagrees for two independent reasons. First, under controlling Second Circuit precedent, the NPA does not bind the U.S. Attorney for the Southern District of New York. Second, it does not cover the offenses charged in the S1 superseding indictment.
A. The non-prosecution agreement does not bind the U.S. Attorney for the Southern District of New York
United States Attorneys speak for the United States. When a U.S. Attorney makes a
promise as part of a plea bargain, both contract principles and due process require the federal
government to fulfill it.
See Santobello v. New York
,
In
United States v. Annabi
, the Second Circuit held: “A plea agreement binds only the
office of the United States Attorney for the district in which the plea is entered unless it
affirmatively appears that the agreement contemplates a broader restriction.”
Maxwell asks this Court to draw the opposite conclusion. The provision of the NPA dealing with co-conspirators does not expressly state that it binds U.S. Attorneys in other districts. It does not expressly state that it applies in other districts. The relevant language, in its entirety, reads as follows: “the United States also agrees that it will not institute any criminal charges against any potential co-conspirators of Epstein.” Dkt. No. 142-1 at 5. Under Annabi, Salameh, and Gonzalez , a statement that “the United States” agrees not to prosecute implies no restriction on prosecutions in other districts.
Two provisions of the NPA refer specifically to prosecution in the Southern District of
Florida. The first states that the U.S. Attorney for the Southern District of Florida will defer
“prosecution in this District” if Epstein complies with the agreement. Dkt. No. 142-1 at 2. The
second states that no prosecution “will be instituted in this District, and the charges against
Epstein if any, will be dismissed” after he fulfills the agreement’s conditions. Maxwell contends
that the lack of similar language in the co-conspirator provision must mean that it lacks any
geographical limitation. If anything, that language reflects that the NPA’s scope was expressly
limited to the Southern District of Florida. It is not plausible—let alone “affirmatively
apparent”,
Annabi
,
Without an affirmative statement in the NPA’s text, Maxwell turns to its negotiation
history. Under Second Circuit precedent she may offer evidence that negotiations of the NPA
between the defendant and the prosecutors included a promise to bind other districts.
See United
States v. Russo
,
Attorney’s Office for the Southern District of Florida sought and obtained approval for the NPA from the Office of the Deputy Attorney General and communicated with attorneys in other districts. Any involvement of attorneys outside the Southern District of Florida appears to have been minimal. Maxwell has already received access to an unusually large amount of information about the NPA’s negotiation history in the form of the OPR report and yet identifies no evidence that the Department of Justice made any promises not contained in the NPA. The OPR report reflects that the Office of the Deputy Attorney General reviewed the NPA, but only after it was signed when Epstein tried to get out of it. OPR Report at 103. Other documents show that attorneys in the Southern District of Florida reached out to other districts for investigatory assistance but not for help negotiating the NPA. Dkt. No. 204-2. Nor would direct approval of the NPA by the Office of the Deputy Attorney General change the meaning of its terms. No evidence suggests anyone promised Epstein that the NPA would bar the prosecution of his co- conspirators in other districts. Absent such a promise, it does not matter who did or did not approve it.
Second Circuit precedent creates a strong presumption that a plea agreement binds only the U.S. Attorney’s office for the district where it was signed. Maxwell identifies nothing in the NPA’s text or negotiation history to disturb this presumption. The Court thus concludes that the NPA does not bind the U.S. Attorney for the Southern District of New York.
B. The non-prosecution agreement does not cover the charged offenses The NPA would provide Maxwell no defense to the charges in the S1 superseding indictment even against an office bound to follow it. The NPA bars prosecution, following Epstein’s fulfillment of its conditions, only for three specific categories of offenses:
(1) “the offenses set out on pages 1 and 2” of the NPA; namely, “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 five enumerated offenses; (2) “any other offenses that have been the subject of the joint investigation by the Federal Bureau of Investigation and the United States Attorney’s Office”; and (3) “any offenses that arose from the Federal Grand Jury investigation.” Dkt. No. 142-1 at 2. The NPA makes clear that the covered charges are those relating to and deriving from a specific investigation of conduct that occurred between 2001 and 2007.
Maxwell contends that the NPA’s co-conspirator provision lacks any limitation on the offenses covered. The Court disagrees with this improbable interpretation. The phrase “potential co-conspirator” means nothing without answering the question “co-conspirator in what?” The most natural reading of the co-conspirator provision is that it covers those who conspired with Epstein in the offenses covered by the NPA for their involvement in those offenses. Thus, it would cover any involvement of Maxwell in offenses committed by Epstein from 2001 to 2007, other offenses that were the subject of the FBI and U.S. Attorney’s Office investigation, and any offenses that arose from the related grand jury investigation.
The Court has no trouble concluding that the perjury counts are not covered by the NPA. Those charges do not relate to conduct in which Maxwell conspired with Epstein and stem from depositions in 2016, more than eight years after Epstein signed the NPA. Maxwell now concedes as much, though her motion sought to dismiss the S1 superseding indictment in its entirety, perjury counts and all.
The Mann Act counts, too, fall comfortably outside the NPA’s scope. The S1 superseding indictment charges conduct occurring exclusively between 1994 and 1997, some four years before the period covered by the Southern District of Florida investigation and the NPA. The NPA does not purport to immunize Epstein from liability for crimes committed before the period that was the subject of the FBI and U.S. Attorney’s Office investigation. Maxwell’s protection is no broader. The Court thus concludes that the NPA does not cover the offenses charged in the S1 superseding indictment.
C. Maxwell is not entitled to an evidentiary hearing
In the alternative to dismissing the indictment, Maxwell requests that the Court conduct an evidentiary hearing as to the parties’ intent in the NPA. The Court finds no basis to do so.
The cases Maxwell cites where courts held hearings on the scope of a plea agreement
mostly involved oral agreements where there was no written record of the full set of terms
reached by the parties. All of them involved defendants with first-hand knowledge of
negotiations who claimed prosecutors breached an oral promise. “An oral agreement greatly
increases the potential for disputes such as . . . a failure to agree on the existence, let alone the
terms, of the deal.”
United States v. Aleman
,
For the same reason, the Court will not order the discovery on the NPA. In any case, it appears that the Government has already produced two of the documents Maxwell seeks in her motion—the OPR report and notes mentioned in a privilege log. Of course, the Government’s disclosure obligations would require it to disclose to Maxwell any exculpatory evidence or evidence material to preparing the defense, including any evidence supporting a defense under the NPA. The Government shall confirm in writing within one week whether it views any evidence supporting Maxwell’s interpretation of the NPA as material it is required to disclose, and, if so, whether it has disclosed any and all such evidence in its possession.
II. The indictment is timely
A. The indictment complies with the statute of limitations Federal law imposes a five-year limitations period for most non-capital offenses. 18 U.S.C. § 3282(a). Recognizing the difficulty of promptly prosecuting crimes against children, Congress has provided a longer limitations period for “offense[s] involving the sexual or physical abuse, or kidnaping” of a minor. 18 U.S.C. § 3283. Until 2003, the operative version of § 3283 allowed prosecution of these offenses until the victim reached the age of twenty-five. Congress further extended the limitations period in the PROTECT Act of 2003, Pub. L. No. 108- 21, 117 Stat. 650, to allow prosecution any time during the life of the victim.
The parties agree that the Mann Act charges are timely if subject to the PROTECT Act, but untimely under the general statute of limitations for non-capital offenses or the pre-2003 version of § 3283. Maxwell contends that the charged offenses do not qualify as offenses involving the sexual or physical abuse or kidnapping of a minor and are thus governed by the general statute of limitations. Alternatively, she contends that the pre-2003 version of § 3283 applies because the charged conduct occurred prior to 2003. The Court concludes that statute of limitations in the PROTECT Act applies and that the charges are timely.
1. The Mann Act charges are offenses involving the sexual abuse of minors
Maxwell does not dispute that the facts alleged in the S1 superseding indictment involve
the sexual abuse of minors. The indictment charges that Epstein sexually abused each of the
alleged minor victims and that Maxwell allegedly enticed them to travel or transported them for
that purpose. Instead, Maxwell contends that charged offenses do not qualify as offenses
involving the sexual abuse of minors because sexual abuse is not an essential ingredient of each
statutory offense.
See Bridges v. United States
,
This approach is analogous to the “categorical approach” employed by courts to evaluate
prior convictions for immigration and sentencing purposes.
See Taylor v. United States
, 495
U.S. 575, 602 (1990). Generally speaking, the “categorical approach” requires that courts “look
only to the statutory definitions—i.e., the elements” of the relevant offense to determine if the
provision applies “and not to the particular facts underlying those convictions.”
Descamps v.
United States
,
Though it has not authoritatively settled the question, the Second Circuit has strongly suggested that Maxwell’s approach is the wrong one. In Weingarten v. United States , 865 F.3d 48, 58–60 (2d Cir. 2017), the Second Circuit discussed at length how the text, context, and history of § 3283 show that Congress intended courts to apply the statute using a case-specific approach. The Third Circuit reached the same conclusion in United States v. Schneider , 801 F.3d 186, 196 (3d Cir. 2015).
The Court sees no reason to depart from the reasoning in
Weingarten
. First, “[t]he
Supreme Court’s modern categorical approach jurisprudence is confined to the post-conviction
contexts of criminal sentencing and immigration deportation cases.”
Weingarten
,
The Court begins with the statute’s text. Statutes that call for application of the
categorical approach typically deal with the elements of an offense in a prior criminal conviction.
Id.
at 59. “The language of § 3283, by contrast, reaches beyond the offense and its legal
elements to the conduct ‘involv[ed]’ in the offense. That linguistic expansion indicates Congress
intended courts to look beyond the bare legal charges in deciding whether § 3283 applied.”
Id.
at
59–60 (alteration in original) (quoting § 3283). Maxwell cites one case holding otherwise, but
that case involved a venue statute presenting significantly different concerns.
See United States
v. Morgan
,
The purposes underlying the categorical approach do not apply here either. For statutes
dealing with prior convictions, “[t]he categorical approach serves ‘practical’ purposes: It
promotes judicial and administrative efficiency by precluding the relitigation of past convictions
in minitrials conducted long after the fact.”
Moncrieffe v. Holder
,
Maxwell relies primarily on
Bridges v. United States,
As the Second Circuit explained in
Weingarten
, Congress had the opposite intent in the
enacting in the PROTECT Act.
Weingarten
,
Based on the statute’s text, context, and history, the Court follows Weingarten and concludes that the appropriate inquiry is whether the charged offenses involved the sexual abuse of a minor on the facts alleged in this case. There is no question that they did. The Court thus concludes that § 3283 governs the limitations period for the charges here.
2. The 2003 amendment to the statute of limitations applies to these offenses
Maxwell next contends that because the charged conduct took place before the
PROTECT Act’s enactment, that statute did not lengthen the statute of limitations applicable to
her alleged offenses. Here too, the Second Circuit has provided guidance in its decision in
Weingarten
. Although the court did not provide a definitive answer there, it explained that the
view Maxwell now takes conflicts with established principles of retroactivity and the decisions
of at least two other circuit courts.
Weingarten
,
2006).
The Supreme Court has set out a two-step framework to determine whether a federal
statute applies to past conduct.
See Landgraf v. USI Film Products
,
The Court begins with
Landgraf
’s first step. To assess a statute’s meaning here, courts
must consider the text of the statute along with other indicia of congressional intent, including
the statute’s history and structure.
See Enter. Mortg. Acceptance Co., LLC, Sec. Litig. v. Enter.
Mortg. Acceptance Co.
,
Section 3283, as amended by the PROTECT Act, broadly states that “[n]o statute of
limitations that would otherwise preclude prosecution for an offense involving the sexual or
physical abuse, or kidnaping, of a child under the age of 18 years shall preclude such prosecution
during the life of the child.” The statute lacks an express retroactivity clause, but courts have
held that no such clause is necessary, including for this particular statute.
See Leo Sure Chief
,
Courts have reached the same conclusion for other statutes employing similar language.
The Eighth Circuit has held that the 1994 amendments to § 3283, which allowed prosecution of
sex crimes against children until the victim reached age twenty-five, applied to past conduct.
See United States v. Jeffries
,
The history of § 3283 confirms Congress’s intent to apply the extended limitations period
as broadly as the Constitution allows. With each successive amendment to the statute, Congress
further extended the limitations period, recognizing that sex crimes against children “may be
difficult to detect quickly” because children often delay or decline to report sexual abuse.
Weingarten
,
Maxwell makes no argument based on the statute’s text. Instead, she contends that
because the House version of the bill included an express retroactivity provision absent from its
final form, the Court should infer that Congress did not intend the statute to apply to past
conduct. However, the legislative history makes clear that Congress abandoned the retroactivity
provision in the House bill only because it would have produced unconstitutional results. The
Supreme Court has explained that a law that revives a time-barred prosecution violates the Ex
Post Facto Clause of the Constitution, but a law that extends an un-expired statute of limitations
does not.
Stogner v. California
,
Both the text and history of the PROTECT Act’s amendment to § 3283 reflect that it applies Maxwell’s conduct charged in the S1 superseding indictment. The Court could stop here. However, it also concludes that even if the statute were ambiguous, it would properly apply to these charges.
At
Lanfgraf
’s second step, the Court asks whether application of the statute to past
conduct would have impermissible retroactive effects. “[A] statute has presumptively
impermissible retroactive effects when it ‘takes away or impairs vested rights acquired under
existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in
respect to transactions or considerations already past.’”
Weingarten
,
Maxwell concedes that these offenses were within the statute of limitations when Congress enacted the PROTECT Act. Thus, the Act did not deprive her of any vested rights. Maxwell contends that it is unfair to allow the Government to prosecute her now for conduct that occurred more than twenty years ago, but there is no dispute that Congress has the power to set a lengthy limitations period or no limitations period at all. It has done so here, judging that the difficulty of prosecuting these offenses and the harm they work on children outweighs a defendant’s interest in repose. Maxwell’s fairness argument is a gripe with Congress’s policy judgment, not an impermissibly retroactive application of the statute. The Court concludes that § 3283 allows her prosecution now.
B. The Government’s delay in bringing charges did not violate due process
“As the Supreme Court stated in
United States v. Marion
, the statute of limitations is ‘the
primary guarantee against bringing overly stale criminal charges.’”
United States v. Cornielle
,
The Court sees no evidence that the Government’s delay in bringing these charges was designed to thwart Maxwell’s ability to prepare a defense. However, it is enough to say that Maxwell does not make the strong showing of prejudice required to support this sort of claim. Maxwell contends that the Government’s delay in bringing charges has prejudiced her interests because potential witnesses have died, others have forgotten, and records have been lost or destroyed. It is highly speculative that any of these factors would make a substantial difference in her case.
Maxwell first points to several potential witnesses who have passed away. These include
Jeffrey Epstein and his mother, one individual Maxwell believes worked with one of the alleged
victims in this case, and a police detective who investigated Epstein in Florida. She contends
they all would have provided exculpatory testimony were they alive today. Courts have
generally found that vague assertions that a deceased witness might have provided favorable
testimony do not justify dismissing an indictment for delay.
See, e.g.
,
United States v. Scala
, 388
F. Supp. 2d 396, 399–400 (S.D.N.Y. 2005). The Court agrees with this approach. Maxwell
provides no indication of what many of these potential witnesses might have testified to. The
testimony she suggests the detective might have offered—that witnesses in the Palm Beach
investigation did not identify Maxwell by name—is propensity evidence that does nothing to
establish her innocence of the charged offenses. There are also serious doubts under all of the
relevant circumstances that a jury would have found testimony from Epstein credible even if he
had waived his right against self-incrimination and testified on her behalf.
See United States v.
Spears
,
Maxwell’s arguments that the indictment should be dismissed because of the possibility
of missing witnesses, failing memories, or lost records fail for similar reasons. These are
difficulties that arise in any case where there is extended delay in bringing a prosecution, and
they do not justify dismissing an indictment.
United States v. Marion
,
Finally, the Court finds no substantial prejudice from the pretrial publicity this case has garnered. Maxwell contends that lengthy public interest in this case has transformed her reputation from that of Epstein’s friend to a co-conspirator. And she also alleges—without evidence—that her accusers fabricated their stories based on media allegations. The Court will not dismiss the indictment on Maxwell’s bare assertion that numerous witnesses are engaged in a perjurious conspiracy against her. And the Court will take all appropriate steps to ensure that the pretrial publicity in this case does not compromise Maxwell’s right to a fair and impartial jury.
The Court thus concludes that Maxwell has failed to establish actual prejudice from the Government’s delay in bringing charges. She may renew her motion if the factual record at trial shows otherwise. On the present record, neither the applicable statute of limitations nor due process bars the charges here.
III. The indictment describes the charged offenses with specificity
Maxwell seeks to dismiss the Mann Act counts for lack of specificity or in the alternative to compel the Government to submit a bill of particulars providing greater detail of the charges. The Court concludes that the charges in the S1 superseding indictment are clear enough.
Under Federal Rule of Criminal Procedure 7, an indictment must contain “a plain,
concise, and definite written statement of the essential facts constituting the offense charged.”
The indictment must be specific enough to inform the defendant of the charges and allow the
defendant to plead double jeopardy in a later prosecution based on the same events.
United
States v. Stavroulakis
,
The S1 superseding indictment sets out the elements of each charged crime and the facts supporting each element. Nonetheless, Maxwell contends that the indictment is too vague because it refers to open-ended time periods, describes conduct like “grooming” and “befriending” that is not inherently criminal, and does not identify the alleged victims by name.
Maxwell’s first argument fails because the Government need only describe the time and
place of charged conduct “in approximate terms.”
Tramunti
,
Young
, No. 08-cr-285 (KMK),
Maxwell next contends that allegations of noncriminal conduct render the charges
impermissibly vague. The Court disagrees. Rule 7 requires only that the language of the
indictment track the language of the statute and provide a rough account of the time and place of
the crime.
Tramunti
,
Finally, Maxwell argues that the indictment is vague because the government does not
provide the names of the alleged victims. The Court sees no basis to require that the alleged
victims’ names be included the indictment. The names of victims, even if important, generally
need not appear there unless their omission would seriously prejudice the defendant.
See United
States v. Stringer
,
IV. The perjury charges are legally tenable
The Court turns next to Maxwell’s motion to dismiss the perjury counts stemming from her answers to questions in a deposition in a civil case. She contends that these charges are legally deficient because the questions posed were fundamentally ambiguous and the questions were not material to the subject of the deposition. The Court concludes that the charges are legally tenable and Maxwell’s defenses are appropriately left to the jury.
The applicable perjury statute imposes criminal penalties on anyone who “in any proceeding before or ancillary to any court . . . knowingly makes any false material declaration.” 18 U.S.C. § 1623(a). Testimony is perjurious only if it is knowingly false and is material to the proceeding in which the defendant offered it.
A. The questions posed were not too ambiguous to support a perjury charge
The requirement of knowing falsity requires that a witness believe that their testimony is
false.
United States v. Lighte
,
At a minimum, Maxwell’s motion is premature. Courts typically evaluate whether a
question was fundamentally ambiguous only after the development of a full factual record at
trial.
See, e.g.
,
United States v. Markiewicz
,
B. A reasonable juror could conclude that Maxwell’s statements were material
Maxwell also argues that the perjury counts should be dismissed because none of the
allegedly false statements were material to the defamation action. In a civil deposition, a
statement is material if it has a natural tendency to influence the court or if a truthful answer
might reasonably lead to the discovery of admissible evidence.
United States v. Gaudin
, 515
U.S. 506, 509 (1995);
United States v. Kross
,
The charged statements do not fall within this narrow exception. Maxwell contends that
the questions did not relate to the sex trafficking and sexual abuse allegations at the center of the
civil case, but that is not the legal standard. The Government may prevail if it proves that
Maxwell’s answers could have led to the discovery of other evidence or could influence the
factfinder in the civil case.
See Gaudin
,
The Court concludes that the perjury charges are legally tenable and appropriately presented to the jury.
V. The perjury charges must be severed and tried separately
Although the perjury charges are legally tenable, the Court concludes that the interests of justice require severing those counts and trying them separately. Trying the perjury counts together with the Mann Act counts would require admitting evidence of other acts likely to be unduly prejudicial. It would also risk disqualifying Maxwell’s chosen counsel based on their involvement in the earlier civil case.
Rule 14(a) of the Federal Rules of Criminal Procedure allows a court to order separate
trials if joining all offenses in a single trial would prejudice the defendant. A defendant seeking
severance must show significant unfairness to outweigh the burden on the court of conducting
multiple trials.
United States v. Walker
,
Trying the perjury counts together with the Mann Act counts would risk an unfair trial on each set of counts. First, it would introduce unrelated allegations of sexual abuse, which would potentially expose the jury to evidence that might otherwise not be admissible. In particular, a joint trial would potentially expose the jury to a wider swath of information regarding civil litigation against Epstein that is remote from Maxwell’s charged conduct. This presents a significant risk that the jury will cumulate the evidence of the various crimes charged and find guilt when, if considered separately, it would not do so. See United States v. Halper , 590 F.2d 422, 430 (2d Cir. 1978). Second, the evidence presented on the Mann Act counts may prejudice the jury’s ability to fairly evaluate Maxwell’s truthfulness in her deposition, a critical element of the perjury counts. The Court has concerns that a limiting instruction may be inadequate to mitigate these risks given the nature of the allegations involved.
Importantly, a joint trial is also likely to require disqualification of at least one of Maxwell’s attorneys from participating as an advocate on her behalf. The perjury counts likely implicate the performance and credibility of her lawyers in the civil action—two of whom represent her in this case. The New York Rules of Professional Conduct generally forbid a lawyer from representing a client in a proceeding in which the lawyer is likely also to be a witness. N.Y. R. Prof’l Conduct § 3.7(a). Maxwell’s counsel in the civil action and the deposition may be important fact witnesses on the perjury counts. Even if counsel were not required to testify, trying all counts together could force Maxwell to choose between having her counsel testify on her behalf on the perjury charges and having them assist her in defending the Mann Act charges.
The Second Circuit has recognized that witness testimony offered by a party’s attorney
presents serious risks to the fairness of a trial.
See Murray v. Metro. Life Ins. Co.
,
The Court is of course cognizant of the burden separate trials may impose on all trial
participants. But much of the proof relevant to the perjury counts and the Mann Act counts does
not overlap. In particular, materiality for statements made in a civil deposition is broad, and
evidence on that question is unlikely to bear on the other charges here.
See Kross
, 14 F.3d at
753–54;
Gaudin
,
The balance of these considerations favors severance. “Motions to sever are committed
to the sound discretion of the trial judge.”
United States v. Casamento
,
VI. Maxwell’s motion to strike surplusage is premature
Maxwell moves to strike allegations related to one of the alleged victims from the S1 superseding indictment as surplusage. The Court declines to do so at this juncture.
Federal Rule of Criminal Procedure 7(d) allows a court to strike surplusage from an
indictment on a defendant’s motion. “Motions to strike surplusage from an indictment will be
granted only where the challenged allegations are not relevant to the crime charged and are
inflammatory and prejudicial.”
United States v. Hernandez
,
Maxwell contends that the allegations related to “Minor Victim-3” are surplusage because the indictment does not charge that Minor Victim-3 traveled in interstate commerce or was below the age of consent in England where the alleged activities took place. Thus, she argues, these allegations do not relate to the charged conspiracy and instead reflect an attempt to introduce Minor Victim-3’s testimony for impermissible purposes.
The Court will not strike any language from the S1 superseding indictment at this
juncture. The standard under Rule 7(d) is “exacting” and requires the defendant to demonstrate
clearly that the allegations are irrelevant to the crimes charged.
United States v. Napolitano
, 552
F. Supp. 465, 480 (S.D.N.Y. 1982). The indictment does not allege that the alleged victim
traveled in interstate commerce or was underage during sexual encounters with Epstein. But the
Court cannot rule out that the allegations may reflect conduct undertaken in furtherance of the
charged conspiracy or be relevant to prove facts such as Maxwell’s state of mind.
See United
States v. Concepcion
,
VII. Maxwell’s motion to dismiss multiplicitous charges is premature
Maxwell’s motion to dismiss either the first or third count of the S1 superseding
indictment as multiplicitous is also premature. Maxwell contends that the Government has
alleged the same conspiracy twice in the indictment. “An indictment is multiplicitous when it
charges a single offense as an offense multiple times, in separate counts, when, in law and fact,
only one crime has been committed.”
United States v. Chacko
,
“Where there has been no prior conviction or acquittal, the Double Jeopardy Clause does
not protect against simultaneous prosecutions for the same offense, so long as no more than one
punishment is eventually imposed.”
United States v. Josephberg
,
VIII. The parties shall negotiate all remaining disclosures
Maxwell moves to compel the Government to produce certain documents she believes it has in its possession and has failed to produce. She also seeks accelerated disclosure of the Government’s witness list, Jencks Act material, Brady and Giglio material, co-conspirator statements, and Rule 404(b) material. Based on the Government’s response in briefing and letters the parties have since submitted to the Court, it appears that most of these requests have been overtaken by events. Accordingly, although the Court concludes that Maxwell is not entitled to expedite this discovery based on the arguments in her motion papers, the Court will require the parties to confer on an overall schedule for all remaining pretrial disclosures.
A. The Court accepts the Government’s representations that it has disclosed all Brady and Giglio Material
The Supreme Court’s decisions in
Brady v. Maryland
,
Maxwell requests an order directing immediate disclosure of all Brady and Giglio material and also requests a few specific documents she contends the Government has failed to disclose. The Court begins with the specific requests. The requested materials include (1) records of witness interviews in connection with an ex parte declaration in support of a response to a motion to quash subpoenas; (2) an unredacted copy of two FBI reports; (3) pages from a personal diary that is in the custody of a civilian third party; and (4) copies of all subpoenas the Government has issued for Maxwell’s records as part of its investigation in this case.
The Government represents that it is cognizant of its
Brady
obligations, that is has
reviewed the witness interviews and one of the FBI reports, and that neither set of documents
includes exculpatory information not previously disclosed. The Court has no reason to doubt the
Government’s representation in this case that it is aware of its Brady obligations and that it has
complied and will continue to comply with them. And because the witness statements are
covered by the Jencks Act, the Court cannot compel production of such statements under the
terms of the statute.
See
18 U.S.C. § 3500;
Coppa
,
The Court also will not issue an order requiring the immediate disclosure of
Brady
and
Giglio
material. The Government has represented that it recognizes its obligations under Brady
and that it has complied, and will continue to comply, with such obligations. The Court has no
reason to doubt these representations given its expansive approach to document production thus
far in this case. The Government has agreed in its recent letter to produce
Giglio
material six
weeks in advance of trial. The parties shall negotiate the specific timing, but assuming a
schedule along those lines is met, the Court concludes that Maxwell will be able to effectively
prepare for trial.
See Coppa
,
B. Jencks Act material and co-conspirator statements
Maxwell also seeks to expedite discovery of Jencks Act material and non-exculpatory
statements of co-conspirators that the government may offer at trial. The Jencks Act, 18 U.S.C.
§ 3500, “provides that no prior statement made by a government witness shall be the subject of
discovery until that witness has testified on direct examination.”
Coppa
,
The Court also rejects Maxwell’s alternative request for a hearing to determine the
admissibility of co-conspirator declarations. Co-conspirator statements may often be admitted at
trial on a conditional basis. If the Court determines that the Government has not met its burden
to show that the conditionally admitted statements were made in furtherance of the charged
conspiracy, the Court should provide a limiting instruction or, in extreme cases declare a
mistrial.
United States v. Tracy
,
C. Witness list
As a general matter, “district courts have authority to compel pretrial disclosure of the
identity of government witnesses.”
United States v. Cannone
,
Maxwell has made a particularized showing that the Government must produce a witness
list reasonably in advance of trial. The nature of the allegations in this case—decades-old
allegations spanning multiple locations—present considerable challenges for the preparation of
the defense. However, the Government’s proposed disclosure schedule—which will afford
Maxwell at least six weeks to investigate testifying witness statements—allows Maxwell
significantly more time to review disclosures than schedules adopted in most cases in this
District.
See, e.g.
,
United States v. Rueb
, No. 00-CR-91 (RWS),
D. Rule 404(b) material
Maxwell’s final discovery request is for early disclosure of evidence the Government
seeks to offer under Federal Rule of Evidence 404(b). Under Rule 404(b), if the prosecutor in a
criminal case intends to use “evidence of a crime, wrong, or other act” against a defendant, the
prosecutor must “provide reasonable notice of the general nature of any such evidence that the
prosecutor intends to offer at trial” and must “do so in writing before trial—or in any form
during trial if the court, for good cause, excuses lack of pretrial notice.” The Government
represents that it will notify the defense of its intent to use 404(b) evidence at least 45 days in
advance of trial to allow Maxwell to file any motions in limine to be considered at the final
pretrial conference. The Government’s proposal will give Maxwell an opportunity to challenge
admission of that evidence and to bring to the Court’s attention any issues that require resolution
before trial. “This is all that Rule 404(b) requires.”
United States v. Thompson
, No. 13-cr-378
(AJN),
The Court’s denial of Maxwell’s requests to compel pretrial disclosures does not preclude
the parties from negotiating in good faith for an expedited discovery timeline that will account
for Maxwell’s specific concerns. “[I]n most criminal cases, pretrial disclosure will redound to
the benefit of all parties, counsel, and the court.”
United States v. Percevault
,
Given the complexities of the case and the addition of two counts via the S2 indictment, the Court encourages the parties to agree to approximately eight weeks.
IX. The S2 superseding indictment moots Maxwell’s grand jury challenge
The Court has not received supplemental briefing on the motions in light of the return of the S2 superseding indictment and so does resolve any such issues here. [1] However, Maxwell’s motion seeking to dismiss the S1 superseding indictment because it was returned by a grand jury sitting at the White Plains courthouse appears moot. Maxwell argued that the use of a grand jury drawn from the White Plains Division in this District did not represent a fair cross-section of the community, because her trial would proceed in the Manhattan Division. A grand jury sitting in Manhattan returned the S2 superseding indictment. By April 21, 2021, Maxwell shall show cause why her grand jury motion should not be dismissed on that basis.
Conclusion The Court DENIES Maxwell’s motions to dismiss the indictment as barred by Epstein’s non-prosecution agreement (Dkt. No. 141), to dismiss the Mann Act counts as barred by the statute of limitations (Dkt. No. 143), to dismiss the indictment for pre-indictment delay (Dkt. No. 137), to dismiss the Mann Act counts for lack of specificity (Dkt. No. 123), to dismiss the perjury counts as legally untenable (Dkt. No. 135), to strike surplusage (Dkt. No. 145), to dismiss count one or count three as multiplicitous (Dkt. No. 121), and to expedite pretrial disclosures (Dkt. No. 147). The Court GRANTS Maxwell’s motion to sever the perjury counts for a separate trial (Dkt. No. 119).
The Court ORDERS the Government to confirm within one week whether it considers any evidence related to negotiation of the non-prosecution agreement to constitute Brady or Rule 16 material and, if so, to confirm that it has or will disclose such evidence.
The Court further ORDERS the parties to negotiate a final schedule for all pretrial disclosures that remain outstanding, including: Brady , Giglio , and Jenks Act materials, including co-conspirator statements; non-testifying witness statements; testifying witness statements; the identity of victims alleged in the indictment; 404(b) material; and the Government’s witness list. The Court also requires the parties to negotiate a schedule for any additional or supplemental motions briefing in light of the S2 indictment. The Court ORDERS a joint proposal to be submitted by April 21, 2021. If agreement is not reached, the parties shall submit their respective proposals.
The Court further ORDERS Maxwell to show cause by April 21, 2021 why her motion to dismiss the S1 superseding indictment under the Sixth Amendment (Dkt. No. 125) should not be denied as moot.
SO ORDERED.
Dated: April 16, 2021
New York, New York
____________________________________ ALISON J. NATHAN United States District Judge
Notes
[1] The parties shall negotiate and propose a schedule for any available additional or supplement rulings in light of the filing of the S2 indictment.