Ghislaine Maxwell reply brief seeking bail, December 2020

EFTA00094326¶

• For the person we believe to be complainant #1, the discovery includes a few more records, including school records, photographs (fully clothed, including professional head shots), flight logs reflecting that she flew on Epstein’s jet on a handful of occasions—including in the 2000s well after she claims she “escaped” from Epstein’s orbit—and some heavily redacted flight records from 2019-2020. But none of these documents implicate Ms. Maxwell in any criminal conduct.

In addition, the discovery appears to show that, apart from issuing a subpoena to the law firm Boies, Schiller and Flexner, which represents a number of Epstein’s alleged victims, the government did not issue subpoenas for documents related to Ms. Maxwell until after Epstein’s death. Although the discovery does not include the grand jury subpoenas themselves, the subpoena returns appear to indicate that the government began issuing subpoenas for Ms. Maxwell’s financial information on August 16, 2019, six days after Epstein’s death, and issued additional subpoenas in the months that followed. The facts strongly imply that government only chose to pursue a case against Ms. Maxwell—who was not named in the Epstein indictment—because the main target, Jeffrey Epstein, had died in their custody. The lack of corroboration in the discovery confirms that the case against Ms. Maxwell was an afterthought and was reverse engineered based on allegations of 25-year-old conduct from a small number of alleged victims.¶

Thus, notwithstanding the statement in the government’s bail submission, we have been provided with no meaningful documentary corroboration in this case. It appears that the evidence in this case boils down to witness testimony about events that allegedly took place over 25 years ago. Far from creating a flight risk, the lack of corroboration only reinforces Ms. Maxwell’s conviction that she has been falsely accused and strengthens her long-standing desire to face the allegations against her and clear her name in court. This factor should weigh heavily in favor of granting Ms. Maxwell bail.¶

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F. The Proposed Bail Package Is Expansive and Far Exceeds What Is Necessary to Reasonably Assure Ms. Maxwell’s Presence in Court¶

In light of the additional information that Ms. Maxwell has provided in connection with this submission, which responds to each of the concerns raised by the government at the initial bail hearing, the government cannot meet its burden to establish that no set of bail conditions would reasonably assure Ms. Maxwell’s appearance in court. The proposed bail package is exceptional in its scope, addresses all of the factors that the Court considered in evaluating risk of flight, and is more than sufficient to warrant her release from BOP custody and transfer to restricted home detention.¶

Courts in this Circuit have ordered release of high-profile defendants with financial means and foreign citizenship on bonds in lower amounts with less or no security with similar or less restrictive conditions:¶

DEFENDANT	BOND	SECURED	HOME DETENTION	ELECTRONIC MONITORING	PRIVATE SECURITY	U.S. CITIZEN	FOREIGN CITIZENSHIP
SADR	$32.6M aggregate	✓	Nightly Curfew	✓	NO	NO	Iran | St Kitts-Nevis
DREIER	$10M	NO	✓	✓	✓	✓	NO
MADOFF	$10M	✓	✓	✓	NO	✓	NO
KHASHOGGI Extradited from Switzerland	$10M	✓	✓	✓	NO	✓	Saudi Arabia
ESPOSITO	$9.8M	✓	✓	✓	Video Only	✓	NO
SABHANI Wife	$2.5M	✓	✓	✓	NO	✓	Indonesia
SABHANI Husband	$2M	✓	✓	✓	NO	✓	India
BOOMER Arrested - South Korea	$2M	✓	✓	✓	NO	NO	Switzerland
KARNI no U.S. Ties	$7.5M	✓	✓	✓	NO	NO	Israel | South Africa
HANSON NOT REPORTED	✓	✓	✓	✓	NO	✓	China
HANSEN Travel to Denmark Permitted	$500K	NO	NO	NO	NO	NO	Denmark
MAXWELL $28.5M aggregate	✓	✓	✓	✓	✓	✓	UK | France

The Court should also not give any weight to the government’s speculative assertions that others might provide money and other support to Ms. Maxwell if she were to flee. (Dkt. 22 at¶

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11-12). Ms. Maxwell is not obligated to rebut every theoretical possibility that the government might raise that may contribute to a potential flight risk in order to be granted bail. That is not the standard. Cf. United States v. Orta, 760 F.2d 887, 888 n.4, 892-93 (8th Cir. 1985) (“The legal standard required by the [Bail Reform] Act is one of reasonable assurances, not absolute guarantees.”). Ms. Maxwell has no intention of fleeing. If she did, then under the proposed bail conditions she would lose everything and destroy the family she has been fighting so hard to protect since Epstein’s arrest. Ms. Maxwell will not do that, and should be granted bail.¶

G. The Alternative to Bail Is Confinement Under Oppressive Conditions that Impact Ms. Maxwell’s Health and Ability to Prepare Her Defense¶

Granting bail to Ms. Maxwell is all the more appropriate and necessary because the past few months have shown that Ms. Maxwell cannot adequately participate in her defense and prepare for trial from the inside the MDC. The alternative to release is her continued confinement under extraordinarily onerous conditions that are not only unjust and punitive, but also meaningfully impair Ms. Maxwell’s ability to review the voluminous discovery produced by the government and to communicate effectively with counsel to prepare her defense.¶

Ms. Maxwell has spent the entirety of her detention—now over five months—in de facto solitary confinement, under conditions that rival those used at USP Florence ADMAX to supervise the most dangerous inmates in the federal system and are tantamount to imprisonment as a defendant convicted of capital murder and incarcerated on death row. In fact, multiple wardens and interim wardens have remarked that in their collective years of experience they have never seen anything like her current regime. The restrictive regulations to which Ms. Maxwell is subjected are not reasonably related to a legitimate goal to ensure the security of Ms. Maxwell or the MDC. Instead, it seems clear that the overly restrictive conditions are an¶

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exaggerated response to Epstein’s death, effectively punishing Ms. Maxwell for the BOP’s own negligence with respect to Epstein. $ ^{11} $¶

Counsel has attempted to address the restrictions in numerous letters, emails and calls to the MDC warden, the MDC legal department, and the prosecutors, but to no avail. Rather than repeating these points here at length, we refer the Court to our letter to the MDC warden, dated October 29, 2020, which details the most serious and extraordinarily restrictive conditions of confinement. $ ^{12} $ These include:¶

• De Facto Solitary Confinement

• Excessive Surveillance

• Excessive Scanning and Strip Searching

• Deprivation of Food

• Deprivation of Sleep

• Deprivation of Communication with Family and Friends

• Compromised Communication with Legal Counsel

The conditions of Ms. Maxwell’s detention are utterly inappropriate, and totally disproportionate for a non-violent pretrial detainee with no prior criminal history facing non-violent charges a quarter-century old. Moreover, they adversely impact her ability to prepare her defense and compromise her physical health and psychological wellbeing.¶

In addition to these intolerable conditions, Ms. Maxwell has had to contend with numerous unacceptable delays and technical problems with the discovery that the government has produced to her thus far. We have raised these issues with the prosecutors on numerous occasions. As we advised the Court in our letter of October 23, 2020, defense counsel first¶

11 These conditions are especially inappropriate because Ms. Maxwell has been an exemplary inmate and has not received any disciplinary infractions since her arrest. In fact, she has been made a suicide watch inmate, which is the highest and most trusted responsibility that an inmate can have. It is the height of irony that Ms. Maxwell is being constantly surveilled as if she were a suicide risk when she, herself, is trusted enough (if she were ever released from isolation) to monitor inmates who are truly at risk of suicide.¶

$ ^{12} $ The Warden never responded to the letter. In our response to the government’s 90-day status report concerning MDC conditions, counsel requested that the Warden provide a first-hand report to the Court and counsel. Following Court directive for a report from the MDC, MDC Legal submitted a letter that recited BOP policy but failed to address a number of concerns.¶

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alerted the government on August 27, 2020 that there were significant portions of the first three discovery productions that Ms. Maxwell could not read. (Dkt. 66). Despite numerous attempts to fix these problems over the succeeding weeks, including producing a replacement hard drive containing these productions, the problems were not resolved and the replacement hard drive was broken. In addition, the fourth and fifth productions, which were produced after the defense alerted the government to these problems, contained some of the same technical problems and included a significant number of unreadable documents. Most recently, the hard drives for the sixth and seventh productions have stopped functioning properly. As a result, Ms. Maxwell has not had access to a complete set of readable discovery for over four months. $ ^{13} $ Ms. Maxwell cannot defend herself if she cannot review the discovery.¶

Most recently, Ms. Maxwell has had to endure the added burdens of quarantine. On November 18, 2020, Ms. Maxwell was given a COVID test and placed in 14-day quarantine due to contact with a staffer who tested positive. The revolving team of guards assigned to Ms. Maxwell, some coming from other BOP institutions confronting their own COVID outbreaks, heightens her exposure to the virus. As reported by the associate warden to the Criminal Justice Advisory Board on December 2, MDC does not mandate testing among its staff. A temperature check and response to a few questions does little to detect an asymptomatic carrier. The constant strip searching, touch wanding, and in-mouth checking of Ms. Maxwell heightens her risk for exposure to COVID-19.¶

13 On November 18, 2020, the government, at our request, provided a laptop computer to Ms. Maxwell in the MDC, which it believed would remedy the issues with unreadable documents, and has agreed to provide a new hard drive containing all of the discovery. It is too early to tell whether the new laptop and hard drive will solve all of the technical problems. We note, however, that now that Ms. Maxwell has been released from quarantine, she only has access to the laptop from 8am-5pm, five days a week, which will effectively limit her review time to that time slot because of compatibility issues between the recently produced hard drives and the prison computer.¶

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Ms. Maxwell’s quarantine period also resulted in cancellation of weekly in-person legal visits. This is likely to continue in light of the spike in COVID infection within and outside the MDC. Within a two-day period from December 1 to December 3, 55 inmates tested positive, compared with 25 from March to December 1. As of the date of this filing, the BOP reports 80 MDC inmates and staff with COVID. $ ^{14} $ If legal visits are suspended, it will further limit our ability to review the voluminous discovery (well in excess of one million documents) with Ms. Maxwell and will further compromise her ability to prepare her defense. Moreover, as this Court observed in United States v. Stephens, if an outbreak occurs “substantial medical and security challenges would almost certainly arise.” Stephens, 447 F. Supp. 3d at 65. We urge the Court to weigh the threat of COVID as a factor favoring release in this case, as it did in Stephens.¶

CONCLUSION¶

Ghislaine Maxwell is committed to defending herself and wants nothing more than to remain in this country, with her family and friends by her side, so that she can fight the allegations against her and clear her name. She is determined to ensure that her sureties and her family do not suffer because of any breach of the terms of her bond. We have presented a substantial bail package that satisfies the concerns of the Court and the government, which contains more than ample security and safeguards to reasonably assure that Ms. Maxwell remains in New York and appears in court. The Court has the obligation to ensure that a defendant’s constitutional right to prepare a defense is safeguarded. The correct—and only legitimate—decision is to grant Ms. Maxwell bail on the proposed strict conditions.¶

$$^{14} \text{See } \underline{\text{https://www.bop.gov/coronavirus/}}.$$¶

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For the foregoing reasons, Ms. Maxwell respectfully requests that the Court order her release on bail pursuant to the conditions she has proposed.¶

Dated: December 4, 2020¶

Respectfully submitted,¶

/s/ Mark S. Cohen¶

Mark S. Cohen¶

Christian R. Everdell¶

COHEN & GRESSER LLP¶

New York, NY 10022¶

Phone:¶

Jeffrey S. Pagliuca¶

Laura A. Menninger¶

HADDON, MORGAN & FOREMAN P.C.¶

Denver, CO 80203¶

Phone: [blank]¶

Bobbi C. Sternheim¶

Law Offices of Bobbi C. Sternheim¶

New York, NY 10011¶

Phone:¶

Attorneys for Ghislaine Maxwell¶

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