EFTA00065989.pdf

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x UNITED STATES OF AMERICA 20 Cr. 330 (AJN) v. GHISLAINE MAXWELL, Defendant. X MEMORANDUM OF GHISLAINE MAXWELL IN SUPPORT OF MOTION TO DISMISS SUPERSEDING INDICTMENT FOR BREACH OF NON-PROSECUTION AGREEMENT Mark S. Cohen Christian R. Everdell COHEN & GRESSER LLP Jeffrey S. Pagliuca Laura A. Menninger HADDON, MORGAN & FOREMAN P.C. Bobbi C. Stemheim Law Offices of Bobbi C. Stemheim Attorneysfor Ghislaine Maxwell EFTA00065989  TABLE OF CONTENTS Page PRELIMINARY STATEMENT 1 STATEMENT OF FACTS 7 A. The Structure of the NPA 8 B. The Negotiation of the NPA 11 ARGUMENT 12 I. The Indictment Should Be Dismissed for Breach of the NPA. 14 A. Ms. Maxwell Has Standing to Enforce the NPA. 15 B. The NPA's Prohibition on Prosecution of Potential Co-Conspirators Is Not Limited to the SDFL. 18 1. The NPA is binding on the USAO in this District 18 2. United States v. Annabi does not alter the analysis. 19 a. There is an "affirmative appearance" that the co-conspirator immunity provision was intended to apply outside the SDFL 20 b. The Second Circuit's subsequent application of Annabi supports Ms. Maxwell's position 22 c. To the extent that Annabi conflicts with Eleventh Circuit law, Eleventh Circuit law applies and would require enforcement of the NPA here. 23 C. The NPA's Prohibition on the Prosecution of Potential Co-conspirators Is Not Limited to Prosecution for Conduct Between 2001 and 2007 or for Particular Statutory Offenses. 26 II. In the Alternative, the Court Should Permit Discovery and Conduct an Evidentiary Hearing Regarding the Parties' Intent 28 CONCLUSION 32 EFTA00065990  TABLE OF AUTHORITIES Page(s) Cases Advani Enters., Inc. v. Underwriters at Lloyds, 140 F.3d 157 (2d Cir. 1998) 23 Bochese v. Town of Ponce Inlet, 405 F.3d 964 (I I th Cir. 2005) 15 Own St v. Street Beat Sportswear; Inc., 226 F. Supp. 2d 355 (E.D.N.Y. 2002) 15 Crutsinger v. Hess, 408 F. Supp. 548 (D. Kan. 1976) 24 Florida Power & Light Co. v. Mid-Valley, Inc., 763 F.2d 1316 (11th Cir. 1985) 15 Giglio v. United States, 405 U.S. 150 (1972) 13 In re Wild, 955 F.3d 1196 (I I th Cir.), reh'g en banc ranted, opinion vacated, 967 F.3d 1285 (11th Cir. 2020) 11 Index Fund, Inc. v. Ins. Co. of N. An:., 580 F.2d 1158 (2d Cir. 1978) 23 Innes v. Dalsheim, 864 F.2d 974 (2d Cir. 1988) 14 LaSalle Bank Nat'l Ass 'n v. Nomura Asset Capital Corp., 424 F.3d 195 (2d Cir. 2005) 21, 27 Perez v. United States, Nos. 14 Civ. 846, 04 Cr. 937-1, 2015 WL 3413596 (S.D.N.Y. 2015) 18 Port Consol., Inc. v. Intl Ins. Co. of Hannover, PLC, 826 F. App'x 822 (I I th Cir. 2020) 21, 27 Santobello v. New York, 404 U.S. 257 (1971) 12 Subaru Distribs. Corp. v. Subaru of Am., Inc., 425 F.3d 119 (2d Cir. 2005) 15 EFTA00065991 United States v. Aleman, 286 F.3d 86 (2d Cir. 2002) 29 United States v. Annabi, 771 F.2d 670 (2d Cir. 1985) passim United States v. Ashy*: 320 F. App'x 26 (2d Cir. 2009) 22 United States v. Brown, No. 99-1230(L), 2002 WL 34244994 (2d Cir. Apr. 26, 2002) 23 United States v. CFW Const. Co., 583 F. Supp. 197 (D.S.C.), affd, 749 F.2d 33 (4th Cir. 1984) 16 United States v. Clements, 992 F.2d 417 (2d Cir. 1993) 15 United States v. D'Amico, 734 F. Supp. 2d 321 (S.D.N.Y. 2010) 21 United States v. El-Sadig, 133 F. Supp. 2d 600 (N.D. Ohio 2001) 17 United States v. Feldman, 939 F.3d 182 (2d Cir. 2019) 13, 26, 29, 30 United States v. Florida West Intl Airways, Inc., 853 F. Supp. 2d 1209 (S.D. Fla. 2012) 16, 17 United States v. Gebbie, 294 F.3d 540 (3d Cir. 2002) 24, 25 United States v. Gonzalez, 93 F. App'x 268 (2d Cir. 2004) 14, 22, 27, 29 United States v. Harvey, 791 F.2d 294 (4th Cir. 1986) 24 United States v. Laskow, 688 F. Supp. 851 (E.D.N.Y.), aff'd, 867 F.2d 1425 (2d Cir. 1988) 21 United States v. Marquez, 909 F.2d 738 (2d Cir. 1990), cert. denied, 498 U.S. 1084 (1991) 15 United States v. Mozer, 828 F. Supp. 208 (S.D.N.Y. 1993) 12 iii EFTA00065992 United States v. Papa, 533 F.2d 815 (2d Cir. 1975) 29 United States v. Persico, 620 F. Supp. 836 (S.D.N.Y.), aff'd, 774 F.2d 30 (2d Cir. 1985) 22 United States v. Prisco, 391 F. App'x 920 (2d Cir. 2010) 22 United States v. Ready, 82 F.3d 551 (2d Cir. 1996) 12 United States v. Russo, 801 F.2d 624 (2d Cir. 1986) 20, 21, 23 United States v. Salameh, 152 F.3d 88 (2d Cir. 1998) 22 United States v. Sattar, No. 02 Cr. 395 (JGK), 2003 WL 22510398 (S.D.N.Y. Nov. 5, 2003) 29 United States v. Van Thornout, 100 F.3d 590 (8th Cir. 1996) 24 United States v. Vaval, 404 F.3d 144 (2d Cir. 2005) 13 Statutes 18 U.S.C. § 2422 26 18 U.S.C.§ 2423 26 Other Authorities Justice Manual, Comment to § 9-27.630 19, 21 iv EFTA00065993  PRELIMINARY STATEMENT Ghislaine Maxwell respectfully submits this Memorandum in Support of her Motion to Dismiss the Superseding Indictment for Breach of the Non-Prosecution Agreement ("Motion"). One does not need to engage in complex analysis to understand what has happened here: the government has sought to substitute our client for Jeffrey Epstein, even if it means stretching—and ultimately exceeding—the bounds of the law. Yet, it is in precisely this setting—involving a defendant who, despite her years of denials, has been publicly attacked, threatened, and vilified like few others in recent memory—that the government's scrupulous adherence to the law in prosecuting a criminal defendant is most critical. As the motions being filed today demonstrate, the government has repeatedly fallen short of its obligations here. The indictment must be dismissed. The government's sudden zeal to prosecute Ms. Maxwell for alleged conduct with Epstein in the 1990s—conduct for which the government never even charged Epstein—follows a history that is both highly unusual and deeply troubling. The government (and state authorities) investigated Epstein thoroughly in 2006 for alleged conduct that is essentially identical to the conduct alleged in the current indictment. In 2007, the government's investigation was resolved when it entered into a Non-Prosecution Agreement ("NPA") with Epstein, which was negotiated under the supervision of R. Alexander Acosta, then United States Attorney for the Southern District of Florida ("SDFL"), and approved by senior levels of Main Justice, including the Office of the Deputy Attorney General. In that NPA, the government agreed that any federal prosecution of Epstein in the SDFL would be deferred in exchange for Epstein's agreement to EFTA00065994 plead guilty to a single-count Florida state indictment.' Epstein did so in 2008 and went to prison for 13 months. At that time, the government did not charge Ms. Maxwell. In 2016, attorneys representing plaintiffs in civil litigation against Ms. Maxwell met with a section chief in the United States Attorney's Office ("USAO") for the Southern District of New York ("SDNY") and pitched the idea of bringing a criminal case against Ms. Maxwell for conduct similar, if not identical, to that alleged in the current indictment. The section chief appropriately declined. Then, in 2018, more than a decade after the NPA was executed, an explosive front-page article in the Miami Herald reported detailed allegations, including from attorneys representing plaintiffs in civil litigation, about Epstein's conduct, Acosta's handling of the 2006 investigation, the process by which the NPA had been negotiated, and its substantive terms. In the wake of the article, the government indicted Epstein in this District for conduct allegedly committed between 2002 and 2005. Again, the government did not charge Ms. Maxwell. Thus, at three separate junctures over more than a decade, the government had occasion to consider whether to charge Ms. Maxwell for the now 25-year-old conduct alleged in the current indictment. Every time, the government—appropriately—did not do so. Indeed, such charges would have been baseless. But in August 2019, Epstein was found dead in his jail cell. His death while in federal custody was not only disturbing, but publicly embarrassing for the government, characterized by the then-Attorney General as the result of "a perfect storm of screw-ups." Worse still, almost to the day after Epstein died, the barrage of media attention shifted from Epstein to Ms. Maxwell, including in mainstream publications. She was portrayed as I The government had drafted a 60-count federal indictment against Epstein, which did not refer to Ms. Maxwell. 2 EFTA00065995 Epstein's equal—if not his superior—and baselessly caricatured as a villain of near-mythical proportions. Only at this time did the government, according to its own account, decide to launch an investigation of Ms. Maxwell and prosecute her on allegations that it had previously, repeatedly (and properly, since any charges would have been baseless) determined did not merit charges. In short, the government's response to the media frenzy was not to adhere to its earlier objective analysis and consideration of the facts, but to feed the frenzy and substitute Ms. Maxwell for Epstein. Thus, the government announced its arrest and indictment of Ms. Maxwell on July 2, 2020, the exact anniversary of Epstein's indictment. At an extraordinary press conference, the United States Attorney for this District described Ms. Maxwell's prosecution as the "prequel" to the Epstein indictment; thereafter, the then-Attorney General, in rare public comments on bail proceedings in an individual case, expressed his delight that "we were able to get Miss Maxwell." But in trying "to get" Ms. Maxwell, the government compromised its standards, cut corners, and exceeded its authority under the law. This is shown in the present motion and others we are filing today, and includes the following: • The government has pressed forward with this case even though the NPA expressly provides that "the United States ... will not institute any criminal charges against any potential co-conspirators of Epstein." Rather than argue, as it has time and again, that such agreements should be construed as drafted, the government does the opposite here, retreating from the very agreement that its own agents negotiated and agreed to with the approval of senior levels of Main Justice. • The government has concocted a federal Mann Act case against Ms. Maxwell by alleging that, on some unspecified occasion during a four-year period between 1994 and 1997, and in an unspecified manner, she somehow transported and caused a single individual to travel across state lines for purposes of engaging in unlawful sexual activity with Epstein. Those charges, in turn, require the government to allege a violation of New York law relating to sexual activity. Here, the government has relied upon an alleged class B misdemeanor that, if the state statute of limitations had 3 EFTA00065996  not expired, would be punishable by up to three months in prison — less time than Ms. Maxwell has already spent in pretrial detention. Yet, here, that misdemeanor has been set up as the basis for federal charges for which the government seeks to impose years of imprisonment, if not the equivalent of a life term. Not only is this troubling in approach, but even the pieced-together Mann Act charges are time-barred under the applicable statute of limitations. • In seeking and obtaining confidential materials from pending civil litigation against Ms. Maxwell, including the deposition transcripts that form the basis of the two perjury counts in the indictment, the government failed to tell the presiding judge about its prior meeting with the plaintiff's counsel (and its prior decision not to proceed) notwithstanding direct questioning from the presiding judge, in which the court expressed concern about whether the plaintiff's counsel had prior meetings with the government and was seeking to foment a criminal case in aid of civil litigation. • The government has based the two counts of perjury on poorly worded questions that were immaterial to the defamation case in which the depositions were taken, and has improperly joined those counts to the Mann Act charges, as addressed in today's motions to dismiss and to sever those counts. • In an effort to allow other accusers to testify against Ms. Maxwell, the government has added two conspiracy counts and, as alleged "overt acts" in furtherance of a purported conspiracy to cause minors to travel, has tacked on allegations from two other accusers—one of whom is not alleged to have traveled at all (and who was above the legal age of consent in England, where the alleged conduct took place). • In its rush to arrest Ms. Maxwell on the anniversary of Epstein's indictment and maximize the announcement's appeal to the media, the government indicted Ms. Maxwell using a White Plains grand jury, thereby violating Ms. Maxwell's right to a grand jury drawn from a fair cross-section of the community. • Finally, the government has charged multiplicitous conspiracy counts based on identical conduct, failed to disclose the names of the accusing witnesses or provide specific facts in the indictment that would permit Ms. Maxwell to adequately prepare for trial, and impermissibly delayed bringing this prosecution for 25 years in violation of Ms. Maxwell's due process rights. The hue and cry against Ms. Maxwell is unprecedented in both scale and severity. Under our system of justice, the need for the Court's careful scrutiny of the government's conduct, and for the protection of the constitutional rights of a defendant facing the equivalent of a life sentence, is at its highest. This case is not about "getting" Ms. Maxwell (or any other 4 EFTA00065997 defendant); it is about whether the government, in bringing charges, has met the governing legal standards. It has not done so here, and the indictment must be dismissed. **** This memorandum focuses on the NPA. As this memorandum demonstrates, Ms. Maxwell's indictment violates the clear and unqualified terms of the NPA and should therefore be dismissed. The NPA was heavily negotiated over approximately eight months and involved not only Epstein and the SDFL but also senior levels of Main Justice in Washington, D.C., which approved the NPA before its execution. Given the blistering public criticism of the NPA and of Acosta's handling of the Epstein investigation, it is understandable that the current regime may wish the government had not entered into the NPA, or that it had negotiated different terms. Indeed, the Department of Justice's Office of Professional Responsibility ("OPR") found that Acosta exercised "poor judgment" and "agreed to several unusual and problematic terms in the NPA," which OPR characterized as a "unique resolution." But the government is bound by the agreement it negotiated and executed. And the NPA is clear, explicit, and unambiguous. The government cannot now ask this Court to rewrite the agreement in a way more favorable to its current position, nor overlook key distinctions in the agreement, by claiming that they were drafting mistakes or omissions. Nor may the government ask this Court to construe ambiguities in its favor, in contravention of black-letter law that non- prosecution agreements must be construed strictly against the government. The government, in prior submissions, has raised three arguments why the NPA does not apply here, none of which has merit: First, the government asserts that Ms. Maxwell lacks standing to enforce the NPA because she is not a party to it and is not named in it. The government ignores that the parties to 5 EFTA00065998 the NPA clearly intended to confer a benefit on any and all of Epstein's potential co-conspirators in explicitly giving them immunity. Under well-established principles of general contract law, and particularly under the law relating to non-prosecution agreements, any and all of Epstein's potential co-conspirators are third-party beneficiaries of the NPA. As federal courts have repeatedly recognized in enforcing third-party immunity provisions, a third-party beneficiary need not be expressly named in an immunity provision as long as she falls within the class of persons on whom the parties intended to confer immunity. Because the indictment alleges that Ms. Maxwell was a co-conspirator of Epstein, she falls well within the protection provided by the NPA. Second, the government claims that the co-conspirator immunity provision applies only to prosecutions in the SDFL. But the NPA was a highly negotiated, non-standard agreement. It is not the standard agreement the government wishes it to be. The plain language of the NPA squarely refutes the government's position. The co-conspirator immunity provision does not prohibit merely prosecutions by the USAO for the SDFL ("USAO-SDFL"), but by "the United States." This broad prohibition was intentional, as demonstrated by the express references elsewhere in the NPA to the United States Attorney and/or the USAO-SDFL. Indeed, compare the NPA's immunity provision for Epstein himself, which is expressly limited to prosecutions in the SDFL, and the co-conspirator immunity provision, which contains no such limitation. Even if the language were ambiguous as to its impact on prosecutions on the SDFL, which it is not, any ambiguity must be construed against the government. In opposition, the government relies on the Second Circuit's statement that "[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." 6 EFTA00065999 United States v. Annabi, 771 F.2d 670, 672 (2d Cir. 1985). Annabi supports dismissal here by confirming that where, as here, both the text of the NPA and the facts and circumstances of the underlying negotiations demonstrate an intent to bind the United States (other USAOs), they are so bound. Alternatively, any application of Anna& that limits the NPA's effect to the SDFL would conflict with the likely interpretation of the NPA by the Eleventh Circuit, which should apply in case of any such conflict. Third, the government argues that the co-conspirator immunity provision prohibits only prosecutions for (i) conduct between 2001 and 2007 and (ii) statutory offenses specifically referenced in the factual recitals to the NPA. Again, the co-conspirator immunity provision contains no such limitations and thus forecloses this argument. The text is clear, but even if it were ambiguous, it must be strictly construed against the government. In the alternative, to the extent there is any doubt that the NPA bars this prosecution, the facts and circumstances surrounding the NPA at least raise sufficient issues regarding the parties' intent to warrant discovery and an evidentiary hearing on the issue. Accordingly, if the indictment is not dismissed, Ms. Maxwell requests leave to conduct discovery as to the intent of the parties to the NPA with respect to the co-conspirator immunity provision, as well as an evidentiary hearing in aid of this Motion. STATEMENT OF FACTS On or about September 24, 2007, Epstein and his counsel entered into the NPA with Acosta, the United States Attorney for the SDFL.2 While USAOs in a number of judicial districts, including this District, typically use a standard template for plea agreements and other non-prosecution agreements, this NPA did not follow such a standard format. To the contrary, 2 A copy of the NPA is attached hereto as Exhibit A. 7 EFTA00066000 the NPA's language and structure, as well as the manner in which it was negotiated, were highly atypical. The result was a one-off agreement that deviated in several material respects from, and bore little resemblance to, a standard agreement. The Department of Justice's OPR, after investigating Acosta's handling of the Epstein case, characterized the NPA as a "unique resolution." Exh. B (Dep't of Justice, Office of Professional Responsibility, Executive Summary of Report, Investigation into the U.S. Attorney's Office for the Southern District of Florida's Resolution of its 2006-2008 Federal Criminal Investigation of Jeffrey Epstein and Its Interactions with Victims during the Investigation, November 2020) at x. In particular, the OPR concluded that Acosta "agreed to several unusual and problematic terms in the NPA without the consideration required under the circumstances." Id. While the co-conspirator immunity provision appears to be one of the terms to which the OPR was referring, the government is bound by it. A. The Structure of the NPA The NPA is a seven-page document consisting of several factual recitals (NPA at 1-2), a paragraph providing for the non-prosecution of Epstein if he complies with the NPA (id. at 2), a list of enumerated "terms" (id. at 5), and, finally, five separate paragraphs containing various provisions, including the co-conspirator immunity provision at issue here (id. at 5). Although it contains no defined terms other than "State Attorney's Office" and "Epstein," the NPA clearly separates "the United States" as a whole from the USAO-SDFL, repeatedly referring explicitly to the USAO where such a limitation is intended. See, e.g., id. at 3 ("Epstein shall provide to the U.S. Attorney's Office copies of all proposed agreements . . . ."); id. at 5 ("the United States Attorney has no authority" to bind state prosecutors); id. at 6 ("Epstein hereby requests that the United States Attorney for the Southern District of Florida defer such prosecution"). Thus, the 8 EFTA00066001 NPA's references to the "United States" demonstrate a definitional intent not to limit such provisions to the USAO-SDFL. The NPA begins with several factual recitals. After noting certain details of the investigation and indictment by the Florida State Attorney's Office, the recitals state, among other things, that (i) the "United States Attorney's Office" and the Federal Bureau of Investigation ("FBI") have "conducted their own investigation into Epstein's background and 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 federal criminal offenses; (ii) Epstein seeks "to resolve globally his state and federal criminal liability" and thus is agreeing to comply with the terms of the NPA "in exchange for the benefits provided by this agreement"; and (iii) "the interests of the United States, the State of Florida, and the Defendant will be served by the following procedure." NPA at 1-2 (emphasis added). Nowhere in the recitals is reference made specifically to the SDFL or to the USAO-SDFL, nor is there any suggestion that the parties in any way intended to limit the "global[]" resolution of Epstein's liability. The NPA then provides that "prosecution [of Epstein] in this District for these offenses shall be deferred in favor of prosecution by the State of Florida, provided that Epstein abides by" the terms of the NPA. NPA at 2. The NPA also provides that, after its terms are fulfilled, no prosecution for the offenses set out on pages 1 and 2 of this Agreement [e.g., the five enumerated federal offenses], nor 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, nor any offenses that arose from the Federal Grand Jury investigation; will be instituted in this District, and the charges against Epstein if any, will be dismissed. 3 Like the various references to the United States and its agents, the term "Federal Grand Jury investigation" is not defined in the NPA. 9 EFTA00066002 Id. Thus, the NPA limits the benefit to Epstein to immunity "in this District." Next, the NPA sets forth 13 provisions labeled "Terms of the Agreement." These include the details of Epstein's guilty plea and proposed sentence in the Florida state court, as well as Epstein's agreement to waive his right to contest jurisdiction, liability, and damages up to an agreed-upon amount in certain civil actions brought by identified victims. NPA at 3-5. In the paragraph following the "Terms of the Agreement," the NPA provides that "Epstein understands that the United States Attorney has no authority to require the State Attorney's Office to abide by" the NPA. NPA at 5. This section further provides that Epstein retains the obligation to obtain the State Attorney's Office's compliance with the NPA's procedures, "which compliance will be necessary to satisfy the United States' interest," and to convince the Florida state court to accept the proposed sentence. NPA at 5. The section contains no similar provision regarding compliance by other USAOs outside the SDFL. The NPA then lays out the provision at issue in this motion: In consideration of Epstein's agreement to plead guilty and to provide compensation in the manner described above, if Epstein successfully fulfills all of the terms and conditions of this agreement, the United States also agrees that it will not institute any criminal charges a ainst an otential co-cons irators of E stein, includin but not limited to NPA at 5 (emphasis added). Unlike the provision that Epstein will not be prosecuted "in this District" (id. at 2), the sentence regarding co-conspirators contains no provision limiting co- conspirators' immunity to the SDFL. Unlike the agreement that Epstein will not be prosecuted for "offenses that have been the subject of the joint investigation" and "offenses that arose from the Federal Grand Jury investigation" (id. at 2), the sentence regarding co-conspirators contains no limitation on the scope of conduct for which "potential co-conspirators of Epstein" cannot be 10 EFTA00066003 prosecuted. Nor does the NPA contain any language limiting its binding effect on other USAOs, as standard agreements typically do. B. The Negotiation of the NPA Unlike standard non-prosecution agreements, the NPA here was heavily negotiated. Negotiations began in January 2007, lasted for a period of eight months, and were "extensive." In re Wild, 955 F.3d 1196, 1198-99 (11th Cir.), reh'g en banc granted, opinion vacated, 967 F.3d 1285 (I I th Cir. 2020). Discovery has revealed that during these negotiations, several drafts of the NPA were exchanged. See, e.g., Exh. C (9/17/07 email from Villafana to Lefkowitz attaching draft NPA); Exh. D (9/21/07 email from Villafana to Lefkowitz attaching draft NPA). In addition, the parties exchanged several drafts of an alternative plea agreement under which Epstein would have pled guilty to a federal offense. See, e.g., Exh. E (9/15/07 email from Villafana to Lefkowitz attaching draft information and plea agreement); Exh. F (draft plea agreement). Notably, those drafts of the plea agreement, unlike the NPA, expressly defined the term "United States" as limited to the United States Attorney for the SDFL. Id. It is our understanding that the negotiations involved the entire hierarchy of the USAO for the SDFL, all of whom signed off on the NPA. Discovery indicates that Main Justice was directly involved in the negotiation and approval of the NPA, even to the extent that separate presentations regarding the NPA were made to, and approval of the NPA was obtained from, the Office of the Deputy Attorney General. Further, the investigation leading up to the NPA was not limited to the SDFL: A privilege log produced by the government in civil litigation indicates that the USAO-SDFL involved the USAO for this District in its investigation of Epstein, and that attorneys from the USAO-SDFL traveled to New York and interviewed and/or subpoenaed New York-based witnesses. Privilege Log, Doe v. United States, Case No. 9:08-CV-80736 (S.D. Fla.), Dkt. No. 212-1 (filed July 19, 2013) ("SDFL Privilege Log"), at 4, 5, 7. Moreover, 1I EFTA00066004 discovery demonstrates that the FBI's field offices in Santa Fe, New Mexico, and St. Thomas, Virgin Islands were contacted for assistance in the investigation. Exh. G (12/6/06 redacted FBI request). As the NPA reflects, Epstein's objective in negotiating the NPA was to obtain a global resolution that would, among other things, provide maximum protection for any alleged co- conspirators, in significant part to minimize the likelihood that Epstein could be subpoenaed as a potential witness and have to testify under oath. NPA at 2 (noting that Epstein "seeks to resolve globally his state and federal criminal liability"). The NPA makes clear that its identification of four "potential co-conspirators" by not intended to limit the immunity provision to those four individuals ("but not limited to"), and we understand that those individuals were specifically named in the provision only because they had received target letters. See Exh. H (9/16/07 email from o tating that "I will mention `co-conspirators,' but I would prefer not to highlight for the judge all of the other crimes and all of the other persons that we could charge"). ARGUMENT The Supreme Court has long recognized the enforceability of plea agreements. "[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." Santobello v. New York, 404 U.S. 257, 262 (1971). While plea agreements are interpreted under basic principles of contract law, the Second Circuit has noted that "plea agreements ... are unique contracts in which special due process concerns for fairness and the adequacy of procedural safeguards obtain." United States v. Ready, 82 F.3d 551, 558 (2d Cir. 1996) (internal quotation marks omitted); see also United States v. Mozer, 828 F. Supp. 208, 215 (S.D.N.Y. 1993) ("[A] prosecutor entering into a plea bargain 12 EFTA00066005 agreement is not simply a party to a contract. The Government is required to observe high standards of integrity and honorable conduct, and the supervisory power of the court is designed to insure that such standards are observed."). Thus, plea agreements are construed "strictly against the government." United States v. Feldman, 939 F.3d 182, 189 (2d Cir. 2019) (quoting United States v. Vaval, 404 F.3d 144, 152 (2d Cir. 2005)). "Because such agreements involve waivers of fundamental constitutional rights, "prosecutors are held to meticulous standards of performance." Feldman, 939 F.3d at 189 (quoting Vaval, 404 F.3d at 153). Finally, "[t]he prosecutor's office is an entity and as such it is the spokesman for the Government. A promise made by one attorney must be attributed ... to the Government." Feldman, 939 F.3d at 190 (quoting Giglio v. United States, 405 U.S. 150, 154 (1972)). The government's attempt to evade the NPA flies in the face of these time-honored, and honorable, principles. Rather than stand behind the promises it made in the NPA, the government tries to escape them by arguing that Ms. Maxwell has no standing to enforce them— a position that is contradicted by the unambiguous text of the NPA as well as by clear precedent. The government also tries to pretend that the NPA contains geographical and temporal limitations that simply do not exist. In doing so, the government essentially turns the principles underlying the interpretation and enforcement of such agreements on their head. Confronted with an NPA that, in hindsight, the government wishes had been negotiated and drafted differently, the government cannot now manufacture ambiguity where none exists and cannot now demand that the court construe such purported ambiguity in the government's favor, when it is a well-established principle that it must be construed in the defendant's favor. Here, it is wholly unnecessary for the Court to look beyond the four corners of the NPA to determine that it bars Ms. Maxwell's prosecution. However, the Court can be comfortable 13 EFTA00066006 that the facts and circumstances of the negotiation of the NPA are consistent with the parties' intent to provide potential co-conspirators with the broadest immunity possible. Even if there were ambiguity, which there is not, that ambiguity must be construed against the government and in favor of the defense. Accordingly, the indictment must be dismissed. In the alternative, Ms. Maxwell should be permitted to take discovery regarding the intent of the parties to the NPA with respect to the co-conspirator immunity provision, and the Court should hold an evidentiary hearing in aid of this Motion. I. The Indictment Should Be Dismissed for Breach of the NPA. "Plea agreements have long been interpreted in accordance with contract law principles." United States v. Gonzalez, 93 F. App'x 268, 269 (2d Cir. 2004). "In interpreting whether a plea agreement has been breached, this court looks to the reasonable understanding of the parties as to the terms of the agreement." Id. at 269-70 (internal quotations and citations omitted). However, the government "must bear the burden for any lack of clarity in the agreement and ambiguities should be resolved in favor of the defendant." Innes v. Dalsheim, 864 F.2d 974, 979 (2d Cir. 1988). Here, the NPA unambiguously precludes prosecution of Epstein's potential co- conspirators, and the indictment in this case must be dismissed. In support of its July 2020 motion for Ms. Maxwell's detention, the government raised three arguments why it contends the NPA does not bar Ms. Maxwell's prosecution: (i) that Ms. Maxwell supposedly lacks standing to enforce the NPA; (ii) that the co-conspirator immunity provision applies only in the SDFL; and (iii) that the provision is limited to conduct occurring during the 2001-07 time period and to violations of statutes specifically referenced in the NPA. Government's Reply Memorandum in Support of Detention ("Reply Mem."), Dkt. No. 22 (filed Jul. 13, 2020), at 5. None of these arguments has merit. 14 EFTA00066007  A. Ms. Maxwell Has Standing to Enforce the NPA. The Second Circuit has long recognized that plea agreements may include promises of leniency for third parties. See, e.g., United States v. Clements, 992 F.2d 417, 419 (2d Cir. 1993) ("it is now clearly established in the Second Circuit that the government may impose conditions which relate to the conduct or treatment of others"); United States v. Marquez, 909 F.2d 738, 742 (2d Cir. 1990) ("Since a defendant's plea is not rendered involuntary because he enters it to save himself many years in prison, it is difficult to see why the law should not permit the defendant to negotiate a plea that confers a similar benefit on others."), cert. denied, 498 U.S. 1084 (1991). Yet the government has taken the position that such promises are effectively unenforceable by any third party who is not specifically identified by name. Fundamental principles of contract law contradict the government's position, regardless of whether the Court applies the law of New York or that of Florida, where the NPA was negotiated and performed. Both states' laws permit enforcement of a contract by a third-party beneficiary where the parties to the contract intended to confer a benefit on the third party. Subaru Distribs. Corp. v. Subaru opm., Inc., 425 F.3d 119, 124 (2d Cir. 2005) (applying New York law); Bochese v. Town of Ponce Inlet, 405 F.3d 964, 982 (11th Cir. 2005) (applying Florida law). Moreover, lain intention to benefit a third-party may be gleaned from the contract as a whole and the party need not be named specifically as a beneficiary." Chen St v. Street Beat Sportswear; Inc., 226 F. Supp. 2d 355, 362 (E.D.N.Y. 2002) (emphasis added) (holding that garment workers had standing as third-party beneficiaries to enforce wage compliance agreement between Department of Labor and clothing manufacturer that contracted with their employer); Florida Power & Light Co. v. Mid-Valley, Inc., 763 F.2d 1316, 1321 (11th Cir. 1985) ("Florida courts have long recognized that a third party beneficiary need not be named in the contract"). 15 EFTA00066008  Contrary to the government's position here, courts applying these traditional contract principles to non-prosecution agreements have recognized that third parties who claim immunity in such agreements have standing to enforce their rights as third-party beneficiaries, even where they have not been expressly named in the non-prosecution agreement. See, e.g., United States v. CFW Const. Co., 583 F. Supp. 197, 203 (D.S.C.) ("an intended third party beneficiary of a contract may enforce its provisions as against the promisor .... if the Government, in negotiating the aforementioned plea agreements, `promised' that there would be no prosecution against [the third party] for antitrust violations arising in any jurisdiction, the promise must be enforced") (emphasis in original), affd, 749 F.2d 33 (4th Cir. 1984). Two cases in particular illustrate the infirmity in the government's argument. In United States v. Florida West Intl Airways, Inc., 853 F. Supp. 2d 1209 (S.D. Fla. 2012), the government, following a plea agreement with a foreign air cargo provider that immunized certain classes of the provider's employees and related corporations, indicted a U.S. airline and an individual, both of whom asserted that they were within the scope of employees and corporations covered by the plea agreement. Id. at 1215-16. Following a two-day evidentiary hearing, the court concluded that only the individual was covered by the plea agreement, but flatly rejected the proposition that either party lacked standing to invoke the plea agreement if covered by it— even though the parties were not identified in the plea agreement by name. Id. at 1228-29. Applying Florida law, the court held that "the signatory parties unmistakably intended to confer immunity on a discrete class of corporations and individuals . . . that could include the Defendants." Id. at 1228. The court added: The plea agreement unquestionably conferred a direct benefit on a class of individuals: immunity. Moreover, the Plea Agreement evinced an intent to extend this benefit to a definable class of third parties: employees of [the cargo 16 EFTA00066009  provider], employees of [its] subsidiaries, and subsidiary corporations of [the cargo provider and a related foreign airline]. Id. An even more loosely defined immunity agreement was enforced in favor of a third party in United States v. El-Sadig, 133 F. Supp. 2d 600 (N.D. Ohio 2001). In El-Sadig, the court held that the defendant, who was alleged to have purchased firearms unlawfully for two members of the Saudi royal family who had traveled with a Saudi prince to the United States, had standing to enforce an oral agreement between the government and the prince not to prosecute any of the individuals involved in the purchase. 133 F. Supp. 2d at 601. The court concluded that "even if the non-prosecution agreement was never directly communicated to [the defendant], he can enforce the non-prosecution agreement as a third party beneficiary." Id. at 608. Moreover, the court reasoned, because the prince himself "was not involved in any of the illegal activity, his efforts to obtain a commitment not to prosecute were obviously intended by him to benefit third- parties," and therefore the defendant was a third-party beneficiary with standing to enforce the agreement. Id. at 609. Both Florida West and EI-Sadig illustrate how the government's argument that Ms. Maxwell lacks standing to enforce the NPA is contrary to bedrock principles of contract law, as applied to immunity agreements. Like Ms. Maxwell, the defendants in Florida West and El- Sadig were not parties to the agreements at issue. Like Ms. Maxwell, the defendants were not specifically named in the agreements. Yet in both cases, the courts held that the defendants were third-party beneficiaries with standing to enforce the agreements, because the parties to the agreements obviously intended to confer on them the benefit of immunity. Ms. Maxwell similarly has standing to enforce the co-conspirator immunity provision of the NPA, as the 17 EFTA00066010 parties to the NPA clearly intended to confer immunity on potential co-conspirators of Epstein, such as Ms. Maxwell. B. The NPA's Prohibition on Prosecution of Potential Co-Conspirators Is Not Limited to the SDFL. The NPA stands in contrast to the standard non-prosecution agreement used in this District and other jurisdictions, which typically is explicitly limited to prohibit only prosecutions by the USAO for the district in which the plea is entered. The standard agreement in this District contains the following language: "It is further understood that this Agreement does not bind any federal, state, or local prosecuting authority other than this Office." See, e.g., Perez v. United States, Nos. 14 Civ. 846, 04 Cr. 937-1, 2015 WL 3413596 , at *8 (S.D.N.Y. 2015). No such language is included in the NPA. Moreover, unlike the standard agreement, the NPA refers separately to "the United States" in some places and to the USAO-SDFL in others, in ways that make clear that any reference to "the United States" was intended to refer to the government as a whole, not merely the USAO-SDFL. 1. The NPA is binding on the USAO in this District. The government's contention that the NPA does not bind the USAO in this District cannot be squared with the clear language of the co-conspirator immunity provision. On its face, that provision does not limit the preclusive effect of the NPA as to po