EFTA00102335.pdf

LB1TMAX1 precluding the term "victim" is both unnecessary and impractical. United States v. Dupigny, 18 CR 528, transcript of October 17, 2019, Docket No. 198 at 50. It is appropriate 4 for the government to use the terms as representative of its 5 litigating position. If the government does this in any way 6 that is atypical or unduly prejudicial, I will revisit. 7 Defense only cites out-of-circuit or state court 8 decisions for the proposition that those terms are inherently 9 prejudicial and harm the presumption of innocence. Numerous 10 courts of appeal disagree with that argument, particularly when 11 the presentation of evidence and the court's instructions 12 "taken as a whole clarify the government's burden of proving 13 all elements of the crime." United States v. Washburn, 444 14 F.3d, 1007, 1113 (8th Cir. 2006); see also, Server v. Mizell, 15 902 F.2d 611, 615, (7th Cir. 1990); United States v. Granbois, 16 119 F.App'x 35, 38-39 (9th Cir. 2004). 17 Defendant's lone district court opinion does not tip 18 the balance of this authority. I will, of course, instruct the 19 jury repeatedly that the defendant is presumed innocent and 20 that it is the government's burden and the government's burden 21 alone to prove guilt beyond a reasonable doubt. Those 22 instructions will eliminate any potential prejudice. See again 23 Judge Furman's decision in Dupigny, Docket No. 198 at 49 24 That matter resolved, I will turn to the government's 25 first motion. This goes to pseudonyms. The government moves SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00102335  LB1TMAX1 pursuant to the Crime Victims Rights Act, 18 USC Section 3771, to permit certain witnesses and certain non-testifying witnesses to be referred to by pseudonyms. And there is also 4 the issue of redacting related exhibits that contain the names 5 or specifically identifying information. Specifically, the 6 government requests that eight individuals be referred to by 7 pseudonyms or their first name. 8 The defense is already aware of the identities of all 9 of these individuals, and as the government proposes it, the 10 jury will also be aware of the individuals' real identities. 11 The request only implicates how those individuals are referred 12 to in open court. 13 This is well-tread territory, and I will grant the 14 request for the following reasons: 15 The burden to justify this type of request, of course, 16 starts with the government. It "must provide a reason for the 17 limitation." United States v. Marcus, which is 2007 WL 330388 18 at *1, an Eastern District decision citing United States v. 19 Marti, 421 F.2d 1283 (2d Cir. 1970). 20 I agree with the government that limiting disclosure 21 here would protect the alleged victims from potential 22 harassment from the media and others, undue embarrassment and 23 other adverse consequences. The Court has an obligation under 24 the Crime Victims Rights Act to take certain measures at trial 25 to protect the dignity and privacy of alleged victims. 18 USC SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00102336  LB1TMAX1 Section 3771(a)(8). It is quite common for alleged victims, both in cases that have garnered media attention and those involving 4 allegations of sex abuse, to testify or be referred to by 5 pseudonyms or first names. Courts have allowed this whether or 6 not the alleged victims are minors or adults or adults 7 testifying about abuse that allegedly occurred when they were 8 minors. 9 Let me give a bit of a string cite here. See, for 10 example, United States v. Kelly, No. 19 CR 286, which is a high 11 publicity trial involving adults testifying about sex abuse as 12 minors, and that's in the Eastern District of New York; United 13 States v. Raniere, No. 18 CR 204, a high-publicity trial 14 involving at least one adult testifying about sex abuse as 15 minor; United States v. Dupigny, No. 18 CR 528, involving sex 16 trafficking, United States v. Kelly, No. 7 CR 374, and that 17 could be found at 2008 WL 5068820, which is an Eastern District 18 case involving an adult testifying about sex abuse as a minor; 19 United States v. Graham, No. 14 CR 500, found at 2015 WL 20 6161292 (S.D.N.Y., October 2015), that involved adults 21 testifying about sex trafficking as minors; United States v. 22 Gardner, No. 16 CR 20135, found at 2016 WL 5404207, an Eastern 23 District case from 2016 involving adults and adults testifying 24 about sex abuse as a minor, and collecting similar cases. 25 The practice has been widely permitted because SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00102337  LB1TMAX1 requiring alleged victims to publicly provide their names could chill their willingness to testify for fear of having their personal histories publicized. Raniere, Docket No. 622 at 32. 4 Given the sensitive and inflammatory nature of the 5 conduct alleged, such publicity may cause further harassment or 6 embarrassment, and other alleged victims of sex crimes may be 7 deterred from coming forward. See, Martinez, 17 CR 281, 8 (E.D.N.Y. 2017), Docket No. 34. 9 Limiting the disclosure of alleged victims' identities 10 in this case furthers these important interests. The same is 11 true with the identities of certain witnesses, although not 12 alleged victims themselves, because the disclosure of their 13 identities would necessarily reveal the identities of the 14 alleged victims. 15 I'm not persuaded by defense counsel's arguments to 16 the contrary. First, the defense notes that Ms. Maxwell does 17 not pose a threat to any of the witnesses. That is plainly 18 true, and the government does not argue or suggest or allege 19 otherwise, but just because that reason for limiting 20 disclosures is absent in this case does not eliminate the 21 possibility of other justifications. And again, there is a 22 need here to prevent undue embarrassment, harassment from the 23 press and third parties, and any resistance of others to come 24 forward and report alleged abuse. Cases establish that this is 25 sufficient SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00102338  LB1TMAX1 Moreover, any potential prejudice in this regard can be cured with an appropriate instruction explaining that the reason for the precaution is regard for the witnesses' and 4 alleged victims' privacy, and that no inference can or should 5 be drawn against the defendant because of these precautions 6 My colleagues in this district and elsewhere have used 7 such an instruction in similar cases. The defense's concern 8 that this sort of instruction affords "Court-sanctioned 9 sympathy and credibility" is unfounded. My instructions on the 10 law will clearly and repeatedly instruct the jury on the 11 presumption of innocence and their sole role in assessing 12 witness credibility 13 Nor am I persuaded by the defense's arguments that the 14 fact that some alleged victims have previously publicly 15 disclosed some of their allegations obviates the need to limit 16 disclosure. As another district court has held, "just because 17 some victims' names are publicly available does not mean that 18 the details of their experience are already available." 19 Raniere, Docket No. 662 at 34, n. 17 20 As I acknowledged in my protective order for this 21 case, "Not all accusations and public statements are equal. 22 Deciding to participate in or contribute to a criminal 23 investigation or prosecution is a far different matter than 24 simply making a public statement relating to Ms. Maxwell or 25 Jeffrey Epstein." Docket No. 37 in this case at 2. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00102339  IC LB1TMAX1 The government anticipates that the alleged victims will "testify in explicit detail and/or be the subject of highly sensitive and personal testimony concerning illegal 4 sexual abuse. Thus, there's good reasons to limit public 5 disclosure of their names and specifically identifying 6 information during trial in this highly publicized case 7 involving highly sensitive issues." 8 Since there is a valid reason to limit disclosure in 9 this case, the defense must proffer a particularized need for 10 the disclosure of the relevant information, which is weighed 11 against the risks to the witnesses. I'll cite here, for 12 example, United States v. Marcus, again citing the Second 13 Circuit case in United States v. Marti. 14 As both parties acknowledge, the government's request 15 potentially implicates the defendant's right under the Sixth 16 Amendment's confrontation clause which guarantees defendants 17 the right to cross-examine adverse witnesses. The Second 18 Circuit has identified two central interests defendants have in 19 the public airing of identifying information about witnesses. 20 Again referencing the Marti case, 421 F.2d 1263. 21 The first is not relevant here because, as I have 22 noted, the defense is aware of the alleged victims' and 23 witnesses' identities. 24 The defendant argues that the second interest, 25 however, is implicated. Namely, defense may need the witness SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00102340  LB1TMAX1 to reveal identifying information because knowledge of that information by the jury might be important to its deliberations as to the witness's credibility or knowledgability. That's 4 quoting the Marti case again. In particular, the defense 5 argues that revealing the alleged victims' and witnesses' 6 identities is necessary to probe the nature of the alleged 7 victims' occupations as relevant to the credibility and elicit 8 certain impeachment evidence. 9 I agree that such cross-examination cannot be unduly 10 limited and the government concedes the same. The government's 11 motions in limine 15, n. 6; government reply at 17 to 18. And 12 I will ensure that it is not. 13 My decision today grants the government's request to 14 limit the public disclosure of the alleged victims and some 15 witnesses' names and other specifically identifying 16 information, such as the specific names of current and past 17 employers, names of family members and addresses. 18 Limiting disclosure of the specifically identifying 19 information does not limit the anticipated cross-examination 20 that the defense described in its papers. All lines of inquiry 21 the defense outlined in its response are available without 22 disclosing specific names of employers or other specifically 23 identifying information. For example, the defense can probe 24 the genre, nature, and trajectories of witnesses' careers 25 without eliciting the specific employer name, but the defense's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00102341  12 LB1TMAX1 cross-examination should not include specifically identifying information, and counsel must act responsibly doing so. If, after good faith effort in that regard is made and the defense 4 at some point feels they have hit a wall and can articulate a 5 specific need with respect to a particular line of questioning, 6 they can reraise the issue with opposing counsel and with me. 7 So that's my ruling on that motion. That said, I do 8 strongly encourage the government to speak candidly with the 9 anticipated witnesses so that they're clear eyed about what 10 this process will entail, the fact that cross-examination will 11 not be curtailed beyond the specific identifying information 12 that form the basis of the government's request, and the 13 possibility that despite these measures their identities may 14 become known and revealed to the public. 15 Should any of those witnesses or the government choose 16 not to proceed by pseudonym, the government shall let defense 17 counsel and the Court know. In the meantime, the government 18 and defense counsel shall confer about names that will be used 19 and any additional process for facilitating the clear 20 presentation of evidence. The Court will adopt a clear and 21 straightforward approach and the parties are admonished to come 22 to agreement on the use of pseudonyms and/or first names. 23 First assignment, there will be others, by November 10 24 the parties shall submit a joint letter to the Court under seal 25 explaining the nomenclature that they propose be employed with SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00102342  LB1TMAX1 respect to the actual identity of each witness. As I mentioned, I do agree with the government that limiting instruction explaining the reasons for the precautions 4 is appropriate. In light of my ruling, I expect the parties to 5 confer and jointly propose such a limiting instruction. 6 Homework No. 2. This shall also be filed jointly by 7 November 10, and that can be filed on ECF. 8 There are some logistics of voir dire related to this. 9 Some of my colleagues have used the list method that the 10 government proposes on page 15, footnote 5 of their motion, and 11 I agree that this proposal makes sense. Once again, the 12 parties shall confer and submit on ECF by November 10 a joint 13 proposal for any logistical issues related to this for voir 14 dire. 15 That leaves the issue of sealing unredacted exhibits 16 and the limited redacting of exhibits containing specific 17 personal identifying information. The government shall manage 18 the logistics of this process throughout trial. So think 19 through and include in your November 10 submission on ECF the 20 specifics of this part of the process so that the trial 21 exhibits can be contemporaneously marked with the appropriate 22 limited redactions, and the government will need to manage this 23 on an ongoing basis throughout trial. 24 Government's motion 2, the alleged victims' prior 25 consistent statements. So this goes to the admissibility of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00102343