EFTA00018997.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 FOURTH AMENDMENT, MARTINDELL, AND THE FIFTH AMENDMENT 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. 150 East 10th Avenue Denver, CO 80203 Phone: 303-831-7364 Christian R. Everdell COHEN & GRESSER LLP 800 Third Avenue New York, NY 10022 Phone: 212-957-7600 Bobbi C. Sternheim Law Offices of Bobbi C. Stemheim 33 West 19th Street - 4th Floor New York, NY 10011 Phone: 212-243-1100 Attorneys for Ghislaine Maxwell EFTA00018997 TABLE OF CONTENTS TABLE OF CONTENTS ii TABLE OF AUTHORITIES iii TABLE OF EXHIBITS Factual Background 1 Argument 1 I. The Government's violation of the Fourth Amendment requires suppression 1 A. Maxwell has standing. 1 B. There is no good faith. 5 C. The government's inevitable discovery doctrine fails 5 II. The Government's violation of Manindell requires suppression. 7 III. The Government's violation of the Fifth Amendment requires suppression 10 IV. The Court should hold an evidentiary hearing 13 CONCLUSION 13 Certificate of Service 15 ii EFTA00018998 TABLE OF AUTHORITIES Cases Appeal ofHughes, 633 F.2d 282 (3d Cir. 1980) 2 Carpenter v. United States, 138 S. Ct. 2206 (2018). 2, 3 Doe v. Indyke, Case No., 20-cv-00484 (S.D.N.Y.) 6 Giuffre v. Maxwell, 325 F. Supp. 3d 428 (S.D.N.Y. 2018) 6 Matter of Grand Jury Subpoena Duces Tecum Dated Feb. 18, 1988, 685 F. Supp. 49 (S.D.N.Y. 1988) 1 Raheem v. Kelly, 257 F.3d 122 (2d Cir. 2001) 9 Refco Grp. Ltd., LLC v. Cantor Fitzgerald, L.P., No. 13 CIV. 1654 RA HBP, 2014 WL 5420225 (S.D.N.Y. Oct. 24, 2014) 2 United States v. Cortina, 630 F.2d 1207 (7th Cir. 1980) 5 United States v. Heath, 455 F.3d 52 (2d Cir. 2006) 7 United States v. Lavender, 583 F.2d 630 (2d Cir. 1978) 2, 4 United States v. Leon, 468 U.S. 897 (1984) 5 United States v. Oshatz, 700 F. Supp. 696 (S.D.N.Y. 1988) 12 United States v. Stein, 541 F.3d 130 (2d Cir. 2008) 10 United States v. Stokes, 733 F.3d 438 (2d Cir. 2013) 5, 6, 7 United States v. Taylor, 745 F.3d 15 (2d Cir. 2014) 12 US Bank Nat. Ass 'n v. PHL Variable Ins. Co., No. 12 CIV. 6811 CM JCF, 2012 WL 5395249 (S.D.N.Y. Nov. 5, 2012) 2 iii EFTA00018999 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 Rules Fed. R. Civ. P. 24(b) 4 Fed. R. Civ. P. 26(c) 13 Fed. R. Crim. P. 17(c) 4 Constitutional Provisions U.S. CONST. amend. IV 1 U.S. CONST. amend. V 1, 9 iv EFTA00019000 TABLE OF EXHIBITS EXHIBIT A: Motion to Compel Plaintiff to Disclose Alleged "On-going Criminal Investigations by Law Enforcement" or, In the Alternative, to Stay Proceedings. Giuffre v. Maxwell, No. 15-cv- 07433-RWS, Apr. 18, 2016 EXHIBIT B: Giuffre v. Maxwell, No. 15-cv-07433-RWS, Transcript, Apr. 21, 2016 EFTA00019001 Ghislaine Maxwell moves under the Fourth Amendment, Martindell v. Intl TeL & TeL Corp., 594 F.2d 291 (2d Cir. 1979), and the Fifth Amendment, 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. Factual Background The facts relevant to this Motion are described in Maxwell's Pretrial Motion No. 3 and the Reply in Support Thereof. Argument I. The Government's violation of the Fourth Amendment requires suppression. The government does not defend the overbreadth of its subpoena, or even respond to Maxwell's argument. Resp. at 82-95. The government also does not deny that the subpoena effected both a search and a seizure under the Fourth Amendment. Id. Instead, the government argues that (1) Maxwell has no standing to challenge the subpoena; (2) the government acted in good faith; and (3) the government inevitably would have come to possess the 90,000-sum pages of material it obtained from Boies Schiller. The facts and law belie the government's claims. A. Maxwell has standing. The government's standing argument boils down to this: Maxwell cannot challenge the search because the material was in the possession of a third party and Maxwell lacked a reasonable expectation of privacy. Resp. at 84-86. This argument fails. Abundant authority holds that when confidential material is in the possession of a third- party, a defendant has standing to challenge a grand jury subpoena of that material. Matter of Grand Jury Subpoena Duces Tecum Dated Feb. 18, 1988, 685 F. Supp. 49, 51 (S.D.N.Y. 1988) (law firm could intervene and join motion to quash grand jury subpoena issued to private EFTA00019002 investigation firm). "The governing rule in these circumstances is that the possessor of the claimed privilege or right may intervene to assert it." Id. (quoting Appeal of Hughes, 633 F.2d 282, 288 (3d Cir. 1980)). See also US Bank Nat. Ass'n v. PHL Variable Ins. Co., No. 12 CIV. 6811 CM JCF, 2012 WL 5395249, at *2 (S.D.N.Y. Nov. 5, 2012) ("A party [has] standing to challenge . . . a subpoena served on a non-party ... [when] the moving party assert[s] some right or privilege personal to it, such as an interest in proprietary, confidential information that would be disclosed or an interest in maintaining a privilege that would be breached by disclosure." (citing cases)). In turn, in determining whether there is standing, "[c]ourts should consider whether the information itself is private, confidential, privileged, or highly sensitive, and not the form the records take." Refco Grp. Ltd., LLC v. Cantor Fitzgerald, L.P., No. 13 CIV. 1654 RA HBP, 2014 WL 5420225, at *4 (S.D.N.Y. Oct. 24, 2014). In United States v. Lavender, the Second Circuit held that while a defendant could not file an interlocutory appeal of the district court's denial of his motion to quash a third-party subpoena, he was "free to raise his Fourth Amendment claims via motions to suppress...." 583 F.2d 630, 632 (2d Cir. 1978). Since Maxwell never had notice of the subpoena to Boies Schiller, she is doing here exactly what Lavender allows: filing a motion to suppress. To be sure, if the government were right—that the mere fact of a third-party's possession of property eliminates a defendant's standing—then Carpenter v. United States would have come out differently, since the defendant's historical cell-site location information was in the possession of MetroPCS and Sprint. 138 S. Ct. 2206, 2212 (2018). But the United States Supreme Court rejected application of the third-party doctrine for two reasons, as this Court should here. 2 EFTA00019003 First, the Court recognized that [t]here is a world of difference between the limited types of personal information addressed in Smith and Miller and the exhaustive chronicle of location information casually collected by wireless carriers today. The Government thus is not asking for a straightforward application of the third-party doctrine, but instead a significant extension of it to a distinct category of information. Id. at 2219. Second, the Court concluded that in "in no meaningful sense" did Carpenter voluntarily "assume the risk" of "turning over a comprehensive dossier of his physical movements." Id. at 2220. The same logic applies here. There is "world of difference between the limited types of personal information addressed in Smith and Miller and the exhaustive" and personal details about Maxwell that are contained in Boies Schiller's 90,000 pages of confidential material. These details include, for example, information about Maxwell's sexual partners, sexual habits, finances, and much, much more. Moreover