EFTA00617178.pdf

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK X Plaintiff, v. 15-cv-07433-RWS GHISLAINE MAXWELL Defendant. X RESPONSE TO PLAINTIFF'S NOTICE OF INTENT TO OFFER STATEMENTS UNDER, IF NECESSARY, THE RESIDUAL HEARSAY RULE Laura A. Menninger Jeffrey S. Pagliuca Ty Gee HADDON, MORGAN AND FOREMAN, P.C. 150 East 10th Avenue Denver, CO 80203 EFTA00617178  Defendant Ghislaine Maxwell ("Ms. Maxwell") hereby files her Response to Plaintiff's Notice of Intent to Offer Statements Under, If Necessary, the Residual Hearsay Rule and states as follows: INTRODUCTION Plaintiff is correct that Ms. Maxwell will move, either in limine or at trial, to exclude the evidence listed in her notice. Many of the documents identified must be excluded as hearsay without applicable exceptions, or based on other evidentiary grounds. Those issues will be argued at the appropriate time. For purposes of this Response, Ms. Maxwell simply notes the fundamental errors in the Notice, failure to comply with the rules, and general principles that make the residual hearsay clause inapplicable. I. THE RESIDUAL HEARSAY CLAUSE CANNOT BE USED TO CURE UNAVAILABLE DECLARANT Plaintiff's first fundamental error is her failure of proof that the identified declarants are unavailable to be called as witnesses. Fed. R. Evid. 807(a)(3) requires the proponent of hearsay to demonstrate that the evidence "is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts." Courts routinely forbid use of the residual hearsay clause to admit hearsay statements from declarants who are available for trial or deposition. Absent evidence to the contrary, the proponent of the proffered evidence could obtain the actual declarant to testify testimony either at trial or in deposition by reasonable efforts. Elizararras v. Bank of El Paso, 631 F.2d 366 (5th Cir. 1980) (absent showing that bank officials could not be procured to testify about certain actions taken with respect to an account, testimony of the account holder concerning those actions was not admissible under the residual exceptions to the hearsay rule); United States v. Czachorowski, 66 M.J. 432, 436 (C.A.A.F. 2008) ("courts have found the residual hearsay exception inapplicable when the evidence is not 1 EFTA00617179 unreasonably difficult to obtain directly from an available declarant"); United States v. Scrim, 819 F.2d 996, 1001 (11th Cir. 1987) (holding Fed. R. Evid. 803(24) inapplicable absent showing that proponent made reasonable efforts to produce witness with direct, personal knowledge); United States v.= 792 F.2d 1019, 1027 (11th Cir. 1986) (error in the trial court's admission of hearsay evidence when the declarant could have been questioned about her own statements); As such, Rule 807 is inapplicable to all declarants absent a demonstration that they cannot testify directly. Such rule makes all the more sense for declarants who actually were deposed in this matter or will testify at trial. Plaintiff deposed David Rodgers, Juan Alessi and Ghislaine Maxwell. Having had the opportunity to question them concerning hearsay statements contained in the now proffered documents and to obtain their sworn testimony on such matters, Plaintiff should not now be permitted to resort to the improper use of hearsay evidence. Likewise, will testify at trial, and thus there is no need for her self- serving hearsay in the form of a heavily-redacted FBI 302 statement, with multiple other evidentiary problems as noted in detail below. II. PLAINTIFF FAILS TO IDENTIFIY THE PARTICULARS OF THE ACTUAL DECLARANTS Plaintiff acknowledges her duty to provide the "particulars" for each of the hearsay statement she presents, including the "declarant's name and address, so that the party has a fair opportunity to meet it." She, however, completely fails to provide this information for the vast majority of the declarants identified, as demonstrated in the chart below: Declarant Problem with Notice Statement Particulars Name and Address Telephone Names, Alfredo There is no testimony or other evidence to Log Book addresses, Rodriguez suggest that Mr. Rodriguez is the actual 2 EFTA00617180 "Black phone (now "declarant" as to the names, addresses, phone Book" numbers, email deceased) numbers or any non-handwritten information address, and other descriptive information Names of Plaintiff fails to provide any contact information Statements witnesses for any of the declarants, and fails to identify collected listed in the the witnesses listed in the report with their by the Palm re .ort• also particulars; no basis to claim unavailability as to Beach any declarant Police Palm Beach Department Police from witnesses Report who had been inside the Epstein mansion Various Plaintiff fails to identify each of the declarants persons for whom she seeks to introduce hearsay completing statements; no proof of unavailability. the memo pads, Telephone including Message memo pads Ghislaine Pads from indicating calls Maxwell police trash received at the pulls Epstein residence whose addresses or attorney is known to Defendant Statement of The "attorney for the U.S. Attorney's Office for particulars of a Jeffrey the Southern District of Florida" is not properly nonprosecution Epstein, do identified, and may not be the only additional agreement attorney Jack hearsay declarant as there are likely multiple Non- between Goldberger; drafters; no proof of unavailability Prosecution Jeffrey attorney Agreement Epstein and the for the U.S. U.S. Attorney's Attorney's Office for the Office for Southern 3 EFTA00617181  the Southern District of District of Florida Florida Giuffre 007597- 007605 Declarant not fully identified; likely additional Statement to do declarants, including the declarant who Justice U.S. provided ant purported "identification"; no Department Attorney's proof of unavailability that Victim Office, she had been Notification Southern identified District of as a victim Florida Ms. FBI 302 of FBI interview Unidentified "redacted" FBI Agent name is not to FBI Agent name of properly identified; no proof of unavailability reporting redacted, do sexual abuse FBI Office Statements re ardin presence at Epstein's home, massages Juan Alessi. given to girls Deposition and young Available declarant; improper use of prior of Juan adults, and sworn testimony prohibited by Fed. R. Civ. P. Allessi Defendant's 32 and 804. (2009) awareness and presence, as particularly desi nated in designations Statements Colonia indicating Bank, 125 Defendant Bank Worth Ave., Declarant not unavailable authorized statements Palm signatory on Beach, FL Epstein's 33480 bank accounts Deposition Statements Alfredo See Motion to Exclude Depositions In Toto and of Alfredo regarding Rodriguez is Motion in Limine re: Diane Flores 4 EFTA00617182 Rodriguez Ms. Maxwell's deceased. and involvement in handwriting massages on given to girls exhibits. and young adults, as particularly desi nated in designations Statement indicating that was New York treated at NY Presbyterian Presbyterian Declarant not unavailable; second declarant, the Hospital Hospital person providing the information put into form, Records for for female is not identified medical related issues when she was under the age of IS. CONCLUSION For the foregoing reasons, Ms. Maxwell requests that any attempt by Plaintiff to utilize the residual hearsay clause be prohibited. 5 EFTA00617183 Dated: February 24, 2017 Respectfully submitted, /s/ Laura A. Menninger Laura A. Menninger (LM-1374) Jeffrey S. Pagliuca (pro hac vice) Ty Gee (pro hac vice) HADDON, MORGAN AND FOREMAN, P.C. 150 East 10th Avenue Denver, CO 0203 Phone: Fax: Attorneys for Ghislaine Maxwell 6 EFTA00617184  CERTIFICATE OF SERVICE I certify that on February 24, 2017, I electronically served this Response to Plaintiff's Notice Of Intent To Offer Statements Under, If Necessary, The Residual Hearsay Rule via ECF on the following: Sigrid S. McCawley Paul G. Cassell Meredith Schultz 383 S. University Street BOLES, SCHILLER & FLEXNER, LLP Salt Lake City. UT 84112 401 East Las Olas Boulevard, Ste. 1200 Ft. Lauderdale FL 33301 E I J. Stanley Pottinger Bradley J. Edwards 49 Twin Lakes Rd. FARMER, JAFFE, WEISSING, EDWARDS, South Salem mNY 105i 0 FISTOS & LEHRMAN, P.L. 425 North Andrews Ave., Ste. 2 Ft. Lauderdale. FL 33301 Is/ Nicole Simmons Nicole Simmons 7 EFTA00617185