EFTA00031918.pdf

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK UNITED STATES OF AMERICA, v. 20 Cr. 330 (AJN) GHISLAINE MAXWELL, Defendant. REPLY MEMORANDUM OF GHISLAINE MAXWELL pi SUPPORT OF HER THIRD MOTION FOR RAII Bobbi C. Sternheim Law Offices of Bobbi C. Stemhcim 33 West 19th Street - 4th Floor New York NY 10011 Phone: Christian R. Everdell COHEN & GRESSER LLP 800 Third Avenue New York NY 10022 Phone:_ Jeffrey S. Pagliuca Laura A. Mcnninger HADDON, MORGAN & FOREMAN P.0 150 East 10th Avenue Denver CO 80203 Phone: Attorneys for Ghislaine Maxwell EFTA00031918 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.I60), 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),I 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 $IM 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; • Nome confinement in Ncw York City; • Electronic GPS monitoring; • In -residence third-party custodian;2 • On-premises 24/7 private security to prevent Ms. Maxwell from leaving the Ms. Maxwell's present motion (the "Third Bail Motion") (Dkt.160) incorporates her Memorandum in Support of Ha 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. EFTA00031919 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 Bai( 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 sc 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 2 EFTA00031920 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 bait. 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 Julie, 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. (Julie Opinion ¶¶ 6-26). 3 EFTA00031921 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.1 II). 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. TO 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. (kill 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. Julio concludes: "[I]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 fonnidable challenge to the assertion that Ms. Maxwell would likely flee if released from custody and go