EFTA00011452.pdf

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x UNITED STATES OF AMERICA, v. GHISLAINE MAXWELL, Defendant. : 20 Cr. 330 (MN) x MEMORANDUM OF GHISLAINE MAXWELL IN SUPPORT OF HER MOTION UNDER THE DUE PROCESS CLAUSE TO SUPPRESS ALL EVIDENCE OBTAINED FROM THE GOVERNMENT'S SUBPOENA TO BOIES SCHILLER AND TO DISMISS COUNTS FIVE AND SIX Jeffrey S. Pagliuca Laura A. Menninger HADDON, MORGAN & FOREMAN P.C. 150 East 10th Avenue Denver, CO 80203 Phone: 303-831-7364 Mark S. Cohen Christian R. Everdell COHEN & GRESSER LLP 800 Third Avenue New York, NY 10022 Phone: 212-957-7600 Bobbi C. Stemheim Law Offices of Bobbi C. Stemheim 33 West 19th Street - 4th Floor New York, NY 10011 Phone: 212-243-1100 Attorneys for Chislaine Maxwell EFTA00011452 TABLE OF CONTENTS TABLE OF CONTENTS TABLE OF AUTHORITIES ii TABLE OF EXHIBITS iv INTRODUCTION AND SUMMARY OF THE ARGUMENT 1 FACTUAL BACKGROUND 2 A. The Protective Order in v. Maxwell 2 B. Maxwell's April and July 2016 depositions 4 C. The Settlement And Boies Schiller's Refusal To Comply With The Protective Order 6 D. The Government's False Statements To Judge McMahon 6 E. Judge Netburn Separately Rejects An Identical Gambit By The Government 10 ARGUMENT 11 A. Pursuant To Its Inherent Power, This Court Should Suppress The Evidence Obtained From Boies Schiller, And Dismiss Counts Five And Six, Which Are The Fruits Of That Evidence 11 I. The role of protective orders in civil litigation 11 2. The government circumvented the protective order 12 3. The government violated due proces • 14 4. This court possesses the inherent authority to order suppression 15 B. At A Minimum, This Court Should Order A Hearing At Which Maxwell May Inquire Into The Circumstances Surrounding The Government's Misrepresentations To Judge McMahon 16 CONCLUSION 16 Certificate of Service 18 EFTA00011453 TABLE OF AUTHORITIES Cases Benkovitch v. Gorilla, Inc., No. 2:15-ev-7806 (WJM), 2017 WL 4005452 (D.N.J. Sept. 12, 2017) 17 Brown v. Maxwell, 929 F.3d 41 (2d Ck 2019) 3, 6 Chambers v. NASCO, Inc., 510 U.S. 32 (1991) 17 Chemical Bank v. Affiliated FM Ins. Co., 154 F.R.D. 91 (S.D.N.Y. 1994) passim Franks v. Delaware, 438 U.S. 154 (1978) 18 Giglio v. U.S., 405 U.S. 150 (1972) 16 v. Maxwell, 325 F. Supp. 3d 428 (S.D.N.Y. 2018) 6 Klein v. Weidner, Civ. No. 08-3798, 2017 WL 2834260 (E.D. Pa. June 30, 2017) 17 Manhattan Review LLC v. Ytni, 16 Civ. 0102 (LAK) (JCF), 2017 WL 11455317 (S.D.N.Y. Sept. 21, 2017) 17 Martindeli v. Intl Tel. & Tel. Cotp., 594 F.2d 291 (2d Cir. 1979) 12, 13 S.E.C. v. TheStreet.Com, 273 F.3d 222 (2d Cir. 2001) 12 Stewart v. Hudson Hall LLC, 20 Civ. 885 (SLC), 2020 WL 7239676 (S.D.N.Y. Dec. 9, 2020) 12 United States v. Avellino, 136 F.3d 249 (2d Cir. 1998) 16 United States v. Cortina, 630 F.3d 1207 (7th Cir. 1980) 16 United States v. Lambus, 897 F.3d 368 (2d Cir. 2018) 16 United States v. Paredes-Cordova, No. S I 03 CR. 987DAB, 2009 WL 1585776 (S.D.N.Y. June 8, 2009) 18 United States v. Rajaratnam, 719 F.3d 139 (2d Cir. 2013) 18 United States v. Valentine, 820 F.2d 565 (2d Ck. 1987) 16 Young v. United States, 481 U.S. 787 (1987) 16 ii EFTA00011454 Other Authorities Norman Mailer, "An Appeal to Lillian Hellman and Mary McCarthy," 5/11/80 New York Times 2 Stephen Rex Brown, Manhattan federal prosecutors declined to pursue Jeffrey Epstein and Ghislaine Maxwell case in 2016, New York Daily News (Oct. 13, 2020) 9 Rules Fed. R. Civ. P. 1 12 Constitutional Provisions U.S. CONST. amend. V 15 iii EFTA00011455 TABLE OF EXHIBITS EXHIBIT A: Civil Protective Order EXHIBIT B: Protective Order Proposal EXHIBIT C: Sealed Affirmation and Application, USAO Ref. No. 2018R01618, 2/5/2019 EXHIBIT D: Transcript, 3/26/2019 EXHIBIT E: Transcript, 4/9/2019 EXHIBIT F: Sealed Order (19 Misc. 149 (CM)), 4/9/2019 EXHIBIT G: Sealed Memorandum Decision and Order Granting the Government's Application to Modify the Protective Order (19 Misc. 149 (CM)), 4/9/2019 EXHIBIT H: Sealed Order (19-MC-00179 (SN)), 4/16/2019 EXHIBIT I: Sealed Letter to Judge Netbum, 4/9/2019 iv EFTA00011456 Ghislaine Maxwell moves to suppress all evidence the government obtained from a grand jury subpoena it issued to Boies Schiller Flexner LLP and to dismiss Counts Five and Six, which are the fruits of that unlawful subpoena. INTRODUCTION AND SUMMARY OF THE ARGUMENT Counts Five and Six allege that Maxwell committed perjury during two civil depositions conducted by Boies Schiller in a defamation action it filed against Maxwell on behalf of one of the firm's clients. v. Marvell, Case No. 15-cv-7433 (LAP) (S.D.N.Y). A Protective Order entered in that case prohibited the parties and their lawyers from sharing confidential discovery material (including the two Maxwell depositions) with anyone else, including with the government and law enforcement. Faced with that Protective Order, the government issued a grand jury subpoena for Boies Schiller's file and instituted an ex parte proceeding before Chief Judge McMahon to modify the Protective Order. By proceeding ex parte, the government ensured that no one before the court would be able to contest the accuracy of its representations in support of its application. The government then took full advantage. Judge McMahon, citing this Court's decision in Chemical Bank v. Affiliated FM Ins. Co., 154 F.R.D. 91 (S.D.N.Y. 1994), asked the government, point blank, whether Southern District prosecutors had previously met with the Boies Schiller firm or otherwise "collu[ded]" with that firm in arranging the discovery request. The government lawyer assured Judge McMahon that the prosecutors had no idea what was in Boies Schiller's file. Indeed, he insisted, there had been no contact whatsoever between Boies Schiller and United States Attorney's Office before the government commenced its investigation. Nor, said the prosecutor, did Boies Schiller have any role instigating the Maxwell inquiry. EFTA00011457 To paraphrase Mary McCarthy's philippic about Lillian Hellman, every word of the government's representation was untrue, "including 'and' and `the." The government knew what was in the Boies Schiller file; the law firm had provided that information well before the investigation began. The government did indeed have previous contact with the firm. And Pomp Schiller was instrumental in fomenting the Maxwell prosecution. The record is surpassingly clear: But for the government's misrepresentation, witting or not, Judge McMahon never would have permitted the circumvention of the civil Protective Order, on which Maxwell relied in agreeing to sit for her depositions. This Court therefore has both the authority and the duty to suppress the fruits of that misrepresentation, including the deposition transcripts and the two perjury counts based on those transcripts. If the Court is disinclined to exercise that inherent authority on the present record, Maxwell should be granted a hearing to examine the circumstances that resulted in the government's misrepresentations to Judge McMahon. FACTUAL BACKGROUND A. The Protective Order in v. Maxwell Counts Five and Six of the superseding indictment allege that Maxwell committed perjury during two civil depositions taken in v. Maxwell, a civil defamation case filed in 2015. claimed that Maxwell defamed her when Maxwell's attorney-hired press agent denied as "untrue" and "obvious lies" numerous allegations, over the span of four years, that Maxwell had participated in a scheme to cause to be "sexually abused and trafficked" by Jeffrey Epstein. ' See Norman Mailer, "An Appeal to Lillian Hellman and Mary McCarthy," 5111/80 New York Times. 2 EFTA00011458 , a public figure required to prove actual malice, had an uphill battle—even she was constrained to acknowledge that many of her public statements were false. Using