EFTA00029100.pdf

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x UNITED STATES OF AMERICA, v. GHISLAINE MAXWELL, Defendant. x 20 Cr. 330 (MN) REPLY 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 BOLES SCHILLER AND TO DISMISS COUNTS FIVE AND SIX Jeffrey S. Pagliuca Laura A. Menninger HADDON, MORGAN & FOREMAN P.C. Christian R. Everdell COHEN & GRESSER LLP Bobbi C. Sternheim Attorneys for Ghislaine Maxwell EFTA00029100 Table of Contents Table of Contents Fable of Authorities ii Table of Exhibits iv Introduction and Summary of the Argument 1 I. The Facts 2 II. The Government's Response to Maxwell's Motion. 6 A. The Government's Defenses Are Not Credible. 7 B. Assuming the Government's Defenses Are Worthy of Belief, the Government Still Misled the Court. 17 III. The Materiality of the Government's False Statements. 18 IV. The Remedy for the Government's Misconduct 20 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. 20 B. At a Minimum, this Court Should Order a Hearing at which Maxwell May Inquire into the Circumstances Surrounding the Government's Misrepresentation to Judge McMahon 26 Conclusion 27 Certificate of Service 29 EFTA00029101 Table of Authorities Cases Abdell v. City of New York, No. 05 CIV. 8453 KMK JCF, 2006 WL 2664313 (.=. Sept 14, 2006) 8 Berger v. United States, 295 U.S. 78 (1935) 24 Brady v. Maryland, 373 U.S. 83 (1963) 11 Brown v. Marcel, 929 F.3d 4 (2d Cir. 2019) 19, 20 Chemical Bank v. Affiliated FM Ins. Co., 154 F.R.D. 91 1994) 14, 18, 19 Elkins v. United States, 364 U.S. 206 (1960) 20 Four Star Fin. Servs., LLC v. Commonwealth Mgmt. Assocs., 166 F. Supp. 2d 805 2001) 25 Franks v. Delaware, 438 U.S. 154 (1978) 20, 22 v. Maxwell, 325 F. Supp. 3d 428 (. 2018) 8, 15 Hampton v. United States, 425 U.S. 484 (1976) 20 In re WinNet R CISC, 2017 WL 1373918 (MM. No. I6MC484(DLC), Apr. 13, 2017) 24 Martindell v. Intl Tel. & Tel. Corp., 594 F.2d 291 (2d Cir. 1979) 18, 21 McNabb v. United States, 318 U.S. 332 (1943) 20 Morales v. Portuondo, 165 F. Supp. 2d 601 2001) 24 Rea v. United States, 350 U.S. 214 (1956) 20 United States v. Bout, 731 F.3d 233 (2d Cir. 2013) 23 United States v. Cortina, 630 F.2d 1207 (7th Cir. 1980) 20, 22, 25, 26 United States v. Falso, 544 F.3d 110 (2d Cir. 2008) 22 United States v. Lambus, 897 F.3d 368 (2d Cir. 2018) 23, 25 United States v. Ming He, 94 F.3d 782 (2d Or. 1996) 20 United States v. Paredes-Cordova, No. SI 03 CR. 987DAB, 2009 WL 1585776 June 8, 2009) 25 ii EFTA00029102 United States v. Payner, 447 U.S. 727 (1980) 20 United States v. Pena, 961 F.2d 333 (2d Cir. 1992) 25 United States v. Russell, 411 U.S. 423 (1973) 21 United States v. Schmidt, 105 F.3d 82 (2d Cir. 1997) 23 Wang v. Reno, 81 F.3d 808 (9th Cir. 1996) 2 Young v. United States, 481 U.S. 787 (1987) 24 Other Authorities Stephen Rex Brown, Manhattan federal prosecutors declined to pursue Jeffrey Epstein and Ghislaine Maxwell case in 2016, New York Daily News (Oct. 13, 2020) 11 U.S. Dept. of Justice, JUSTICE MANUAL, JM § 9-11.151 15 Rules Fed. R. Civ. P. 5.2 19 M. Rules of Professional Conduct, Rule 3.3(d) 24 MI. Rules of Professional Conduct, Rule 3.8, cmt. [6A] 16 Constitutional Provisions U.S. CONST. amend. IV 22 U.S. CONST. amend. V 21 U.S. CoNST. amend. VI 26 iii EFTA00029103 Table of Exhibits EXHIBIT J: Notes of Feb. II, 2021 Call with AUSA (Sealed) EXHIBIT K: Handwritten Notes by AUSA of Meeting and Contacts with Peter Skinner, Stan Pottinger, and Brad Edwards EXHIBIT L: Email String Between Peter Skinner and AUSA cc'ing Stan Pottinger, Brad Edwards, and Sigrid McCawley (Feb. 29, 2016—Mar. 5, 2016) (Sealed) EXHIBIT M: Emails between AUSA and Chief of the Criminal Division (Mar. 3, 2016) (Sealed) EXHIBIT I: Emails between AUSA and AUSA and other AUSAs (Nov. 30, 2018—Dec. 6, 2018) (Sealed) EXHIBIT O: Email from Stan Pottinger to AUSA McCawley, re Daniel Siad (Mar. 3, 2016) (Sealed) cc'ing Brad Edwards and Sigrid EXHIBIT P: Supplemental Privilege Log, Apr. 4, 2016 EXHIBIT Q: Defendant's Response in Opposition to Motion to Exceed Presumptive Ten Deposition Limit, v. Maxwell, No. 15-cv-07433-RWS (June 16, 2016) iv EFTA00029104 Ghislaine Maxwell submits this reply in support of her Motion 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 If the government meant to reassure this Court that nothing improper happened, its Response was anything but reassuring. The government now confesses that it had significant and substantial contact with attorneys in 2016—while the defamation suit against Maxwell was on-going—as part of an effort to instigate a criminal prosecution of Maxwell for allegedly trafficking and others and then lying under oath. Doubling down on an increasingly farfetched story, however, the government insists that nothing improper occurred when it misrepresented these contacts to the Chief Judge of the Southern District of New York. Contrary to the government's portrayal of events, what happened here is that a prosecutor from the public corruption unit of the United States Attorney's Office, in an a parte proceeding, affirmatively misled Chief Judge McMahon to circumvent a Protective Order entered by one of her colleagues. The prosecutor then exploited the material he obtained to indict Maxwell. Had the prosecutor not affirmatively misled Judge McMahon, the government would never have obtained the 90,000 pages of material it now possesses, material that is central— indeed, essential—to its case against Maxwell. It would be the height of irony, not to mention injustice, to allow the government to convict Maxwell of testifying falsely when the government could not have indicted Maxwell but for the false statements it made to a federal judge. "In a situation like this, the judiciary ... may exercise its supervisory power to make it clear that the misconduct was serious, that the government's unwillingness to own up to it was more serious still, and that steps must be taken to avoid a recurrence of this chain of events." 1 EFTA00029105 Wang v. Reno, 81 F.3d 808, 821 (9th Cir. 1996). For the reasons given below, the exercise of this Court's supervisory authority is called for here. I. The Facts Pressed into some minimal measure of candor, the government now admits the following facts are true: • On February 29, 2016, AUSA M, the Human Trafficking Coordinator and Project Safe Childhood Coordinator for the U.S. Attorney's Office for the Southern District of New York, Ex. J, p 1, met with Peter Skinner of Boies Schiller, Stan Pottinger, and Brad Edwards, who represented M, Ex. K, p I. • The meeting concerned allegations of sexual abuse and trafficking by Jeffrey Epstein and Maxwell. Ex. J, pp 1-3. • At the meeting, attorneys told AUSA the following: o That Maxwell was Epstein's "head recruiter" of underage victims. Id. at 2. o That was underage when she was brought to New York "for training by Maxwell and Epstein [in] how to service men." Id. at 3. o That had a pending civil lawsuit against Maxwell for defamation alleging that Maxwell had recruited to be trafficked and abused by Epstein. Id. at 4, 7. o That Maxwell was asserting truth as a defense to defamation claim. Id. at 4, 7. o That Maxwell had photos of naked underage girls on her computer. Id. at 6.1 ' No such photos were found on or produced from any computers associated with Maxwell. 2 EFTA00029106 o That Maxwell and Epstein