Ghislaine Maxwell reply memorandum supporting her third motion for bail

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK¶

UNITED STATES OF AMERICA,¶

v.¶

GHISLAINE MAXWELL,¶

20 Cr. 330 (AJN)¶

Defendant.¶

REPLY MEMORANDUM OF GHISLAINE MAXWELL IN SUPPORT OF HER THIRD MOTION FOR BAIL¶

Bobbi C. Sternheim¶

Law Offices of Bobbi C. Sternheim¶

33 West 19th Street - 4th Floor¶

New York, NY 10011¶

Phone: 2¶

Christian R. Everdell¶

COHEN & GRESSER LLP¶

800 Third Avenue¶

New York NY 10022¶

Phone:¶

Jeffrey S. Pagliuca¶

Laura A. Menninger¶

HADDON, MORGAN & FOREMAN P.C¶

150 East 10th Avenue¶

Denver, CO 80203¶

Phone:¶

Attorneys for Ghislaine Maxwell¶

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Preliminary Statement¶

The issue before the Court, as it has been since Ms. Maxwell’s first bail application, is whether conditions exist that can reasonably assure Ms. Maxwell’s appearance at trial. On her third application (the “Third Bail Motion”) (Dkt.160), Ms. Maxwell has put before the Court significant enhancements to the already extraordinary bail package previously presented to the Court in her renewed application for bail (the “Second Bail Motion”) (Dkt. 97).¹ Together, these two motions present a unique and comprehensive bail package with the strictest of conditions known in any bail application:¶

• $28.5 million in bonds (including a $1M bond co-signed by a security company);

• $9.5 million in real property;

• $550,000 in cash;

• Asset Monitoring by a retired federal district court judge;

• Renunciation of British and French citizenship;

• Irrevocable written waivers of the right to contest extradition;

• Surrender of all travel documents;

• Home confinement in New York City;

• Electronic GPS monitoring;

• In-residence third-party custodian;²

• On-premises 24/7 private security to prevent Ms. Maxwell from leaving the

1 Ms. Maxwell’s present motion (the “Third Bail Motion”) (Dkt.160) incorporates her Memorandum in Support of Her Renewed Motion for Bail and accompanying exhibits (Dkt. 97, including Attachments 1-24) and her Reply Memorandum in Support of Her Renewed Motion for Bail (Dkt. 103, including Attachments 1-2) (collectively, the “Second Bail Motion”).¶

2 To assist Ms. Maxwell in making up for lost time preparing for her upcoming trial, one of her lawyers (not trial counsel) has agreed to reside with her and serve as an additional residential custodian.¶

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residence without pre-approval by the Court or Pretrial Services and to escort her when authorized to leave the residence;¶

• Visitors to be pre-approved by Pretrial Services;

• Strict supervision by Pretrial Services;

• Such other terms as the Court deems appropriate.

The government goes to great lengths to oppose bail arguing technicalities and offering unfounded innuendo ripped from the tabloid headlines to avoid addressing the merits of Ms. Maxwell’s exceptional bail package, which puts at risk everything she has, including the assets of her spouse and the financial security of her family and closest friends.¶

The Court Retains Jurisdiction to Decide Matters Related to Bail¶

The government asserts that the Court should not consider the present bail motion because appeal of denial of the Second Bail Motion, not yet briefed, is pending before the Second Circuit. (Dkt. 165 at 2-3). It is ironic that the government takes this position given that it created this problem by opposing Ms. Maxwell’s request for an enlargement of time to file a notice of appeal to the Court’s denial of her Second Bail Motion. Indeed, Ms. Maxwell sought the extension to avoid this very issue. (Dkt. 109). The government should not now be allowed to turn that procedural sword into a jurisdictional shield to prevent the Court from considering the instant motion.¶

Divestiture of jurisdiction in the district court while an appeal is pending is not a per se rule. Rather, it is a judicially crafted rule rooted in the interest of judicial economy that is designed to avoid confusion or waste of time resulting from having the same issues before two courts at the same time. Divestiture of jurisdiction, therefore, should not be automatic, but instead guided by concerns of efficiency. Here, it is unclear whether interlocutory appeal of a¶

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district court’s decision regarding bail “divests the court of its control over aspects of the case involved in the appeal.” United States v. Rodgers, 101 F.3d 247, 251 (2d Cir. 1996). Were it so, a district court would have no authority to remand or modify bail conditions of a defendant released while the government appeals the grant of bail. Such a rule would detract from, rather than promote, judicial economy and would be unworkable in practice.¶

Should the Court believe it does not have jurisdiction to decide the present bail motion, Ms. Maxwell will move the Circuit to withdraw her notice of appeal without prejudice and thereby remove any theoretical bar to this Court’s jurisdiction over the present bail motion. Should the Court summarily deny the present motion on the merits, Ms. Maxwell will file a notice of appeal and request consolidation of both appeals.¶

Renunciation of Foreign Citizenship is a Valid and Significant Condition of Release¶

Relying on a letter from the French Ministry of Justice, the government urges the Court to give no weight to Ms. Maxwell’s agreement to renounce her foreign citizenship. But the letter is wrong on the law and should be disregarded. The letter asserts that the loss of French nationality subsequent to the criminal act which the person is alleged to have committed does not affect the rule against the extradition of nationals, as nationality must be assessed at the time of commission of the offense and not at the time of the extradition request. As discussed in the opinion from William Julié, French legal counsel (attached as Exhibit A), the government’s assertion is entirely incorrect for the following reasons:¶

• The government’s argument goes against the letter of the law.

• The government’s argument goes against the spirit of the law.

• The government’s argument is contradicted by precedent and case law.

[Julié Opinion ¶ 6-26].¶

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The language of the extradition treaty between the United States and France and the applicable French statues are clear that anyone seeking to contest extradition on the basis of French citizenship must be a French national at the time of the extradition request. (Id. ¶ 11). The provisions on which the government relies were not intended to apply in cases where the person whose extradition is sought had lost French citizenship. To the contrary, it was designed to apply to individuals who had acquired French citizenship subsequent to the commission of the alleged crime “in order to avoid fraudulent nationality applications of offenders seeking to escape extradition.” (Id. ¶ 15-16). If the person is no longer a French national at the time of the request, the provision does not apply. The government cites no case where the relevant statute was applied to protect a formerly French national from extradition, and we have found none ourselves. (Id. ¶ 19-21). By contrast, there are numerous examples of French courts deporting individuals who have lost French nationality following the commission of an offense. (Id. ¶ 21). Accordingly, Mr. Julié concludes: “[1]t cannot have been the intention of French lawmakers that Article 696-4 be construed as meaning that a person who has lost French nationality would still be entitled to be protected from extradition.” (Id. ¶ 26).¶

Ms. Maxwell’s agreement to give up both British and French citizenship and waive any and all right to contest extradition is a formidable challenge to the assertion that Ms. Maxwell would likely flee if released from custody and goes above and beyond the “reasonable assurances” that the Bail Reform Act requires to grant bail. While we maintain that Ms. Maxwell’s written waivers of the right to challenge extradition should suffice, her willingness to forfeit citizenship birthrights exceeds what is necessary and profoundly demonstrates her commitment to abide by conditions of release and appear at trial.¶

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Monitoring of Assets is a Valid and Significant Condition of Release¶

To address the Court’s concern about Ms. Maxwell’s access to assets, the bail motion proposed another extremely significant and restrictive bail condition – the imposition of a monitor to supervise the assets of Ms. Maxwell and her spouse and approve expenditures. Rather than suggest conditions to satisfy its concerns, the government urges the Court to summarily reject the proposed monitorship.¶

William S. Duffey, Jr., a retired federal district court judge and the former United States Attorney for the Northern District of Georgia, has agreed to undertake appointment by the Court as asset monitor. Judge Duffey has extensive experience evaluating and monitoring funds held in and disbursed from financial accounts. He has agreed to serve by appointment of the Court in a capacity similar to other trustees and receivers who serve as officers of the Court and are entrusted, pursuant to court order, with oversight authority to restrain, monitor, and approve disbursement of assets requiring his signature. Similar to others who have been appointed by courts to oversee financial matters, Judge Duffey will be compensated at the same hourly rate billed for his services as an ADR panelist for Federal Arbitration (FedArb).¶

The proceeds from the sale of Ms. Maxwell’s London home will be restrained and monitored by Judge Duffey. As required by court order, documentation concerning the proceeds of the sale will be provided to Judge Duffey and the funds will be deposited in the financial account approved by Judge Duffey.¶

The government tries to steer the Court’s attention to allegations of Ms. Maxwell’s lack of candor to dissuade the Court from considering the proposed monitorship as a meaningful restraint on the assets of Ms. Maxwell and her spouse. As previously stated, despite being questioned by Pretrial Services following a period of solitary confinement, suicide watch, sleep¶

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deprivation, and other conditions adverse to her physical health and mental well-being, Ms. Maxwell responded appropriately and accurately to questions posed by Pretrial Services which were restricted to her personal assets. Since then, financial documents - collected and professionally vetted by a highly respected accounting firm – have been submitted to the government and the Court and provide full details and supporting documentation concerning Ms. Maxwell’s personal assets and those jointly held with the spouse. Further, no valid challenge has been made to those submissions.¶

The government challenges the Court by inanely stating that if “the only way to keep the defendant from using her assets to flee is to take away control of her assets, then she is too great a risk to release.” (Dkt.165 at 8.) This statement is fundamentally illogical as it undermines most conditions of release. For example, the same could be said of electronic monitoring – i.e., if the only way to keep a defendant from fleeing the jurisdiction is to place him on home confinement with electronic monitoring, then he is too great a flight risk to release.$^3$ The Court should readily dismiss this frivolous argument. Under the Bail Reform Act, if there are appropriate conditions for release, bail should be granted. The conditions collectively proposed in the previous and present bail applications provide ample assurance that Ms. Maxwell will be present at trial.¶

3 Moreover, in an effort to further obfuscate the merits of Ms. Maxwell’s bail application, the government desperately argues that funds for legal services, presently held in attorney escrow accounts, would be released and made available to support Ms. Maxwell as a fugitive. To suggest that defense counsel would become accomplices to a violation of a court order shows utter disrespect for Ms. Maxwell’s defense team. In particular, New York counsel, who have spent the entirety of their legal careers practicing in this district and establishing well-respected reputations among the bench and bar, take umbrage at the government’s callous assertion.¶

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Conceded Problems Undermine the Strength of the Government’s Case¶

As Ms. Maxwell’s period of detention passes the nine-month mark, the government has continuously upgraded Ms. Maxwell from a “plain [ ] risk of flight” to a “substantial and actual risk of flight” to a “serious flight of risk” and now to an “extreme risk of flight.” (Dkt. 165 at 1.) Ironically, her level of flight risk increases as the strength of government’s case against her diminishes. Ms. Maxwell has challenged the strength of the government’s case in pretrial motions pending before the Court. Among other things, Ms. Maxwell has persuasively argued that the Non-Prosecution Agreement entered into by Jeffrey Epstein in 2007, which immunizes “any potential co-conspirators of Epstein,” bars Ms. Maxwell’s prosecution in this case, and that the counts charging her with alleged sexual abuse are time-barred.¶

The government’s response to Ms. Maxwell’s pretrial motions shines further light of the weaknesses of its case. For example, the government concedes it cannot establish that either Ms. Maxwell or Epstein ever caused, or sought to cause, Accuser-3$^4$ to travel while she was a minor or that she was underage when she allegedly engaged in sex acts with Epstein.¶

(See Opp.162-65 & fn. 57-58.)$^5$ Hence, her allegations cannot support the conspiracies charged in the Indictment, leaving the government with only two witnesses to prove the charges against Ms. Maxwell. More importantly, in connection with the government’s response, it produced documents indicating that government prosecutors misled a federal judge to¶

4 Accuser-3 is identified in the Indictment as “Minor Victim-3.”¶

5 “Opp.” references are to page numbers of the Government’s Omnibus Memorandum in Opposition to Defendant’s Pre-Trial Motions, dated February 26, 2021 and not yet publicly filed.¶

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obtain evidence against Ms. Maxwell (see, e.g., Opp. Ex. 4-7) - a shocking revelation that undermines the viability of the perjury counts, not to mention the integrity of the entire prosecution.¶

The ongoing review of discovery confirms the lack of evidence in support of the stale allegations in the indictment. Further, the government’s concessions reveal that it failed to properly investigate the allegations of at least one of its three core witnesses. The passage of time continues to reveal information and lack of evidence that undermine the purported strength of the government’s case.¶

Bail Must Be Granted¶

The detention of Ms. Maxwell on 25-year-old allegations – based on the lowest grade misdemeanor under New York Penal Law $130.55^{6}$ – presented in a sensationalized indictment containing pictures to inflame the public and entice and feed the media frenzy$^7$ – is unwarranted in the face of the unique bail package before the Court. Relentless media coverage of Ms. Maxwell, which preceded and impacted the bringing of this prosecution, has increased significantly since her arrest and detention. Ms. Maxwell’s continued detention – providing daily fodder for media for the past nine months–continues to severely undermine her presumption of innocence.¶

In the face of this enhanced bail package, the government’s claim that Ms. Maxwell poses “an extreme risk of flight” rings hollow. The government urges the Court to apply a standard that defies the law - an absolute guarantee against all risks. See United States v.¶

6 Counts Two and Four allege violations of New York Penal Law § 130.55 - sexual abuse in the third degree - a class B misdemeanor punishable by maximum penalties of three months in jail or one year probation.¶

7 What other purpose could be served by the inclusion of a picture of Ms. Maxwell and Jeffrey Epstein taken over a dozen years after the period of the conspiracy alleged and pictures of three high-value residences?¶

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Orta, 760, F.2d 887, 888 n.4 (8th Cir. 1985) (“The legal standard required by the [Bail Reform] Act is one of reasonable assurances, not absolute guarantees.”). Under the Bail Reform Act, Ms. Maxwell must be released unless there are “no conditions” that would reasonably assure her presence. Here, the proposed bail package - uniquely strengthened by Ms. Maxwell’s agreement to renunciate her foreign citizenship and have assets monitored by a retired federal district court judge - satisfies the actual governing standard.¶

To find there are absolutely no conditions to satisfy flight risk of a 59-year-old woman with no criminal history, who poses no danger to the community, who has made America her home for the past 30 years, and who has established strong roots and forged important connections with family and friends who reside here, is incredulous. The concerns regarding foreign citizenship and restraint of assets have been addressed. To say that renunciation of foreign citizenship and strict monitoring of assets by a retired federal district court judge does not suffice when combined with an eight-figure bond secured by real property and cash and the strictest terms of home confinement and electronic monitoring strains credulity. The government gains a strategic advantage each day Ms. Maxwell remains in custody – her case is tried daily in the court of public opinion based on allegations that are inadmissible in a court of law; the likelihood of seating jurors who are not implicitly biased against her is being severely jeopardized; her physical strength and concentration are becoming increasingly impaired by the conditions of her confinement; and she is being denied a full and fair opportunity to prepare her case for trial.8¶

8 Ms. Maxwell continues to experience difficulty reviewing electronic discovery, including discs that can only be reviewed on the MDC computer but are not readable on that computer, and thousands of pages still not readable on either the MDC computer or the laptop. Her receipt of legal mail – including pretrial motions, responses and replies – are constantly delayed even after tracking information confirms delivery to the MDC. The visiting rooms in the¶

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Conclusion¶

The Court should grant bail for Ms. Maxwell on the extraordinary conditions proposed. Should the Court determine that additional conditions are necessary, Ms. Maxwell is willing to satisfy and abide by those terms as well.¶

Dated: March 16, 2021¶

Respectfully submitted:¶

Bobbi C. Sternheim¶

Bobbi C. Sternheim¶

Law Offices of Bobbi C. Sternheim¶

33 West 19th Street - 4th Floor¶

New York, NY 10011¶

Phone: 212-243-1100¶

Christian R. Everdell¶

COHEN & GRESSER LLP¶

800 Third Avenue¶

New York, NY 10022¶

Phone: [¶

Jeffrey S. Pagliuca¶

Laura A. Menninger¶

HADDON, MORGAN & FOREMAN P.C¶

150 East 10th Avenue¶

Denver, CO 80203¶

Phone:¶

Attorneys for Ghislaine Maxwell¶

East Building, where Ms. Maxwell is detained, have been reviewed by an HVAC expert retained by the Federal Defenders of New York and have been characterized as a “death trap.” The MDC claims it is in the process of installing HEPA filters, a request long overdue in light of concerns regarding ventilation in legal visiting rooms raised early in the pandemic. The alternative – to meet in the open-area where social visiting had been conducted affords no privacy for confidential attorney-client communication, especially under constant oversight by Ms. Maxwell’s guards and a hand-held camera focused on both Ms. Maxwell and counsel. Further, confidential attorney-client communications conducted during video teleconferencing (VTC) are now further compromised by the repositioning of a camera with sensitive audio recording, putting a chill on privileged communication. During VTC conferences, counsel can hear conversation among the guards, so it is likely that the guards, who seem to be writing during those sessions, are able to hear discussions between Ms. Maxwell and counsel. Last night, prior to the filing of defense replies to Ms. Maxwell’s pretrial motions, the MDC refused her request to speak with her lawyers to provide information bearing on those filings,. Such denial violates the BOP’s Program Statement pertaining to providing legal calls upon request of pretrial inmates. See https://www.bop.gov/policy/progstat/7331_004.pdf at par. 24(c). The chronic difficulties related to Ms. Maxwell’s review of the millions of documents of electronic discovery are continuing to negatively impact her ability to prepare for a trial that is only a few months away.¶

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