EFTA00028880.pdf

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK UNITED STATES OF AMERICA, v. GHISLAINE MAXWELL, Defendant. 20 Cr. 330 (AJN) REPLY MEMORANDUM OF GHISLAINE MAXWELL IN SUPPORT OF HER MOTION TO DISMISS THE SUPERSEDING INDICTMENT FOR BREACH OF THE NON-PROSECUTION AGREEMENT Christian R. Everdell COHEN & GRESSER LLP Phone: Jeffrey S. Pagliuca Laura A. Menninger HADDON, MORGAN & FOREMAN P.C. Phone: Bobbi C. Stemheim Law Offices of Bobbi C. Stemheim Phone: Attorneys for Ghislaine Maxwell EFTA00028880 TABLE OF CONTENTS Page I. The NPA Applies to Ms. Maxwell, and She Has Standing to Enforce It. 2 II. The Co-Conspirator Immunity Provision is Not Limited to the SDFL. 7 III. The Co-Conspirator Immunity Provision Is Not Limited to the 2001-07 Time Period or to Violations of Specific Statutes 13 IV. In the Alternative, the Court Should Conduct Discovery and an Evidentiary Hearing Regarding the Parties' Intent. 16 CONCLUSION 18 EFTA00028881 TABLE OF AUTHORITIES Page(s) Cases Bank of New York Mellon Trust Co. v. Morgan Stanley Mortg. Capital, Inc., 821 F.3d 297 (2d Cir. 2016) 8, 9 Collins v. Univ. of Notre Dame DU Lac, 929 F.3d 830 (7th Cir. 2019) 8, 9 Penncro Assocs., Inc. v. Sprint Spectrum, L.P., 499 F.3d 1151 (10th Cir. 2007) 8, 9 United States v. Aleman, 286 F.3d 86 (2d Cir. 2002) 17 United States v. Annabi, 771 F.2d 670 (2d Cir. 1985) passim United States v. CFW Const. Co., 583 F. Supp. 197 (D.S.C. 1984), of d, 749 F.2d 33 (4'h Cir. 1984) 6 United States v. El-Sadig, 133 F. Supp. 2d 600 (N.D. Ohio 2001) 3, 6 United States v. Feldman, 939 F.3d 182 (2d Cir. 2019) 5, 6, 10, 17 United States v. Florida West Intl Airways, Inc., 853 F. Supp. 2d 1209 (S.D. Fla. 2012) 3, 4, 6 United States v. Gebbie, 294 F.3d 540 (3d Cir. 2002) 12 United States v. Gonzalez, 93 F. App'x 268 (2d Cir. 2004) 8 United States v. Harvey, 791 F.2d 294 (4th Cir. 1986) 12 United States v. Mariamma Viju (01), No. 3:15-CR-0240-B, 2016 WL 107841 (N.D. Tex. Jan. 11, 2016) 6 United States v. Padilla, 186 F.3d 136 (2d Cir. 1999) 10 EFTA00028882 United States v. Sattar, 272 F. Supp. 2d 348 (S.D.N.Y. 2003) 17 United States v. Van Thornout, 100 F.3d 590 (8th Cir. 1996) 12 Other Authorities Dienst, J., Valiquette, J., Winter, T., and Fitzpatrick, S. "Jeffrey Epstein Confidante Ghislaine Maxwell Arrested on Sex Abuse Charges." NBC New York. July 3, 2020 15 iii EFTA00028883 Ghislaine Maxwell respectfully submits this Memorandum in Support of her Motion to Dismiss the Superseding Indictment for Breach of the Non-Prosecution Agreement ("Motion"). As though it were wielding an invisible ink pen, the government adds language to its Non-Prosecution Agreement ("NPA") with Jeffrey Epstein that does not exist in the text, and then pretends no one can see the clear, unambiguous language that does appear there. The plain language of the NPA states, without limitation, that "the United States ... will not institute any criminal charges against any potential co-conspirators of Epstein." Because the Superseding Indictment ("Indictment") contends that Ms. Maxwell was a co-conspirator of Epstein, the NPA, on its face, applies here. Thus, the government's only argument, which it makes throughout its opposition, is that the NPA means something other than what it says. In suggesting that the parties to the NPA intended to immunize only the four individuals specifically named in the co-conspirator immunity provision, the government flagrantly ignores the express statement that immunity is "not limited to" those individuals. In arguing that the provision binds only the United States Attorney's Office for the Southern District of Florida ("USAO-SDFL"), the government asks the Court to add the words "in this District" to that provision, on the thin suggestion that the parties must have meant to include the same limitation on location of prosecution that they included in Epstein's immunity provision, even though they failed to do so. And for good measure, the government asks the Court to find that the parties must have intended to limit co-conspirator immunity to specific statutory offenses committed between 2001 and 2007, even though—again—no such limitation appears in the text of the co- conspirator immunity provision. Notwithstanding the bedrock principle that plea agreements are construed strictly against the government, the government asks the Court to simply assume that the parties intended the EFTA00028884 NPA to be read more narrowly than the language provides, arguing that following the NPA's plain language would contradict "common sense." (Opp.' 8, 16.) But a non-prosecution agreement is not an ordinary contract. Federal prosecutors know how to draft clear limitations on promises made to criminal defendants, and they have a unique obligation to do so. What strains "common sense" is the notion that any reasonable prosecutor who intended the NPA to be read as the government contends would have omitted the limitations and modifications the government now seeks—particularly when dealing with a defendant who sought to "resolve globally" his criminal liability. NPA at 2. The Court should therefore decline the government's invitation to rewrite the NPA to its liking, should enforce the NPA as written, and should grant Ms. Maxwell's Motion. In the alternative, the Court should permit discovery and hold an evidentiary hearing to determine the parties' intent with respect to the co-conspirator immunity provision. While Ms. Maxwell contends that the NPA unambiguously bars her prosecution here, and that neither discovery nor a hearing is necessary for the Court to grant this motion, the government's arguments regarding the NPA parties' intent simply cannot be credited without the consideration of evidence. Because Ms. Maxwell, as a nonparty, has no personal knowledge regarding the parties' intent and no access to relevant documents, she should be permitted to take discovery in advance of any hearing. I. The NPA Applies to Ms. Maxwell, and She Has Standing to Enforce It. The NPA's co-conspirator immunity provision forecloses "any criminal charges against any potential co-conspirators of Epstein, including but not limited to" four named individuals. NPA at 5 (emphasis added). The phrase "potential co-conspirators of Epstein" obviously includes Ms. Maxwell. As the opening statement of the Indictment makes clear: "The charges "Opp." refers herein to the Government's Omnibus Opposition to the Defendant's Pre-Trial Motions. 2 EFTA00028885 set forth herein stem from the role of [Ms. Maxwell] in the sexual exploitation and abuse of multiple minor girls by Jeffrey Epstein." Indictment ¶ I. The Indictment also contains two conspiracy counts that charge Ms. Maxwell with conspiring with Epstein. Id. 119, 15. According to the government, however, Ms. Maxwell's status as an alleged co- conspirator of Epstein is somehow insufficient for an NPA that immunizes "potential co- conspirators of Epstein" to apply to her. The government claims that there is "no evidence that the parties intended to confer a benefit on her in particular." Opp. 20. In essence, the government implausibly argues that even though the parties expressly agreed to immunize "any potential co-conspirators of Epstein," only those individuals whom the parties were thinking about "in particular" qualify for immunity. The government cites no support for the rule it has concocted, and case law is to the contrary. For example, in United States v. Florida West Intl Airways, Inc., 853 F. Supp. 2d 1209 (S.D. Fla. 2012), where a corporation had entered into a plea agreement that immunized its employees, the court held that one of those employees had standing to enforce the agreement as a third-party beneficiary by virtue of his employment; the court did not require a showing that the parties thought about protecting