EFTA00015303.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 FOURTH AMENDMENT, MARTINDELL, AND THE FIFTH AMENDMENT TO SUPPRE ALL EVIDENCE OBTAINED FROM THE GOVERNMENT'S SUBPOENA T AND TO DISMISS COUNTS FIVE AND SIX Jeffrey S. Pagliuca Laura A. Menninger HADDON MORGAN & FOREMAN P.C. Denver, CO 80203 Mark S. Cohen Christian R. Everdell COHEN & GRESSER LLP Bobbi C. Sternheim Attorneys for Chislaine Maxwell EFTA00015303 TABLE OF CONTENTS TABLE OF CONTENTS TABLE OF AUTHORITIES ii FACTUAL BACKGROUND 1 ARGUMENT 2 I. The government's violation of the Fourth Amendment requires suppression. 2 A. The subpoena violated the Fourth Amendment because it was unconstitutionally overbroad. 4 B. The government's subpoena toa was an unconstitutional warrantless Fourth Amendment search 6 1. The third-party doctrine does not compel a different result. 8 C. The government's subpoena t' - an unconstitutional Fourth Amendment seizure. 11 II. The government's violation of Martindell requires suppression 11 III. The government's violation of the Fifth Amendment requires suppression 15 Conclusion 17 Certificate of Service 18 EFTA00015304 TABLE OF AUTHORITIES Cases Boyd v United States, 116 U.S. 616 (1886) 3, 6, 15 Carpenter v. United States, 138 S. Ct. 2206 (2018) 3, 5, 6, 9 Colorado v. Bannister, 449 U.S. 1 (1980) 3 DeMassa v. Nunez, 770 F.2d 1505 (9th Cir. 1985) 10 Doe v. Broderick, 225 F.3d 440 (4th Cir. 2000) 10, 13 Fisher v. United States, 425 U.S. 391 (1976) 3, 15 Hale v. Henkel, 201 U.S. 43 (1906) 2, 4 In re Grand Jury Subpoena Duces Tecum, 945 F.2d 1221 (2d Cir. 1991) 14 In re Grand Jury Subpoena, JK-I5-029, 828 F.3d 1083 (9th Cir. 2016) 4, 5, 11 Katz v. United States, 389 U.S. 347 (1967) 2, 6 Murphy v. Waterfront Comm 'n of New York Harbor, 378 U.S. 52 (1964) 2 Palmieri v. State of New York, 779 F.2d 861 (2d Cir. 1985) 14 People v. Gutierrez, 222 P.3d 925 (Cob. 2009) 10 People v. Mason, 989 P.2d 757 (Colo. 1999) 8 Smith v. Maryland, 442 U.S. 735, 740 (1979) passim United States v. Calandra, 414 U.S. 338 (1974) 6 United States v. Di Re, 332 U.S. 581 (1948) 6 United States v. Dionisio, 410 U.S. 1 (1973) 2, 15 United States v. Miller, 425 U.S. 435 (1976) 9, 10 United States v. Oshatz, 700 F. Supp. 696 (S.D.N.Y. 1988) 16 United States v. Place, 462 U.S. 696 (1983) 3 United States v. Thomas, 736 F.3d 54 (1st Cir. 2013) 6 ii EFTA00015305 Constitutional Provisions U.S. CONST. amend. IV passim U.S. CONST. amend. V passim iii EFTA00015306 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 toarid to dismiss Counts Five and Six, which are the fruits of that unlawful subpoena. FACTUAL BACKGROUND Ms. Maxwell's Motion under the Due Process Clause to Suppress and Dismiss Counts 5 and 6 sets forth the facts relevant to this motion. Ms. Maxwell incorporates those facts by reference here. In summary, the government obtain file, including thr by way of a grand jury subpoena enforced through an ex pane proceeding Although the government claimed not to know what was in file and that had no role in instigating the investigation of Maxwell, both of these representations tollwere false. In turn, the government issue in the See Motion under the Due Process Clause to Suppress and Dismiss Counts 5 and 6, Ex. C, at 3. The government could have been, but was not, more targeted in its approach. The government has not provided Maxwell with a copy of the subpoena, but the record shows that the subpoena was incredibly broad and, as explained below, ultimately unlawful. The subpoena violated the Fourth Amendment because it was overbroad and because it effected a warrantless search and seizure of material in which Maxwell had a reasonable expectation of privacy. Moreover, by securing a modification of the Protective Order through a secret, ex pane proceeding, the government violated Martindell v. hit? Tel. & Tel. Cap., 594 I EFTA00015307 F.2d 291 (2d Cir. 1979), which required the government to give Maxwell notice and an opportunity to be heard on its request. And in bypassing Martindell and eviscerating the guarantee of confidentiality provided by the Protective Order, the government trampled on Maxwell's Fifth Amendment privilege against self-incrimination, which she declined to invoke in reliance on the protections afforded her by Martindell and the Protective Order. This Court should (I) suppress all evidence the government obtained fro and any other evidence derived therefrom; or (2) suppress the April and July 2016 depositions and all evidence derived therefrom; and (3) dismiss Counts Five and Six. ARGUMENT I. The government's violation of the Fourth Amendment requires suppression. The Fourth Amendment provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. CONST. amend. IV. The "Fourth Amendment provides protection against a grand jury subpoena duces tecum too sweeping in its terms `to be regarded as reasonable.' United States v. Dionisio, 410 U.S. 1, 11-12 (1973) (quoting Hale v. Henkel, 201 U.S. 43, 76 (1906), abrogated in part on other grounds by Murphy v. Waterfront Comm'n of New York Harbor, 378 U.S. 52, 68 (1964)). The government engages in a "search" for Fourth Amendment purposes when its conduct encroaches on an individual's legitimate expectation of privacy. See Katz v. United States, 389 U.S. 347, 351 (1967) ("[T]he Fourth Amendment protects people, not places."). Absent an exception to the warrant requirement, a governmental search is unconstitutional unless the government conducts it under a warrant issued based on probable cause to believe a crime has been committed and that evidence of the crime is likely to be found in the place searched. 2 EFTA00015308 Carpenter v. United States, 138 S. Ct. 2206, 2213 (2018) (holding that an "official intrusion into [the] private sphere generally qualifies as a search and requires a warrant supported by probable cause"). "[A] compulsory production of ... private books and papers ... is the equivalent of a search and seizure—and an unreasonable search and seizure—within the meaning of the fourth amendment." Boyd v United States, 116 U.S. 616, 634-35 (1886), overriding in part on other grounds as recognized in Fisher v. United States, 425 U.S. 391, 407-08 (1976). Finally, "The Fourth Amendment protects `effects' as well as people from unreasonable searches and seizures." United States v. Place, 462 U.S. 696, 716 (1983) (Brennan, J. concurring). It thus "protects two different interests of the citizen—the interest in retaining possession of property and the interest in maintaining personal privacy." Id. (cleaned up). "A seizure threatens the former, a search the latter." Id. Like a search, a seizure is "per se unreasonable within the meaning of the Fourth Amendment unless it is accomplished pursuant to a judicial warrant issued upon probable cause and particularly describing the items to be seized." Id. at 701; see Colorado v. Bannister, 449 U.S. 1, 3 (1980). Here, the grand jury subpoena was unconstitutionally overbroad because it sought production ofentire file and was therefore akin to a general warrant. Moreover, there is no dispute the government did not establish probable cause to believe that= file contained evidence of a crime. Nor is th