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Case 1:15-cv-07433-LAP Document 730 Filed 03/17/17 Page 1 of 14 United States District Court Southern District of New York Virginia L. Giuffre, Plaintiff, Case No.: 15-cv-07433-RWS v. Ghislaine Maxwell, Defendant. ________________________________/ PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION IN LIMINE TO EXCLUDE FBI 302 STATEMENT OF PLAINTIFF Bradley J. Edwards FARMER, JAFFE, WEISSING, EDWARDS, FISTOS & LEHRMAN, PL 425 North Andrews Avenue, Suite 2 FORT LAUDERDALE, FL 33301 (954)524-2820 TELEPHONE  Case 1:15-cv-07433-LAP Document 730 Filed 03/17/17 Page 2 of 14 TABLE OF CONTENTS Page I. PRELIMINARY STATEMENT ............................................................................................. 1 II. FACTUAL BACKGROUND .............................................................................................. 1 III. DISCUSSION ...................................................................................................................... 2 A. Ms. Giuffre’s FBI 302 is Offered to Prove That She Reported Her Allegations to Law Enforcement, Not to Prove the Truth of any Matters Asserted Therein. ......................... 2 B. Even if Treated as Hearsay, The FBI 302 is Admissible Pursuant to Rule 803(8) as a Public Record. .................................................................................................................. 5 C. THE FBI 302 IS NOT UNDULY PREJUDICIAL .......................................................... 9 IV. CONCLUSION .................................................................................................................. 10 i  Case 1:15-cv-07433-LAP Document 730 Filed 03/17/17 Page 3 of 14 TABLE OF AUTHORITIES Page Cases Bingham v. Jefferson Cnty., No. 1:11-cv-48, 2013 WL 1312563, at *7 (E.D. Tex. Mar. 1, 2013) 8 Moss v. Ole South Real Estate, Inc., 933 F.2d 1300, 1305 (5th Cir. 1991) .................................... 8 Parsons v. Honeywell, Inc., 929 F.2d 901, 907 (2d Cir.1991) .................................................... 6-7 Spanierman Gallery, Profit Sharing Plan v. Merritt, No. 00CIV5712LTSTHK, 2003 WL 22909160, at *5 (S.D.N.Y. Dec. 9, 2003)................................................................................... 6 U.S. ex rel. Wuestenhoefer v. Jefferson, No. 4:10-CV-00012-DMB, 2014 WL 7185428, at *2 (N.D. Miss. Dec. 16, 2014) ......................................................................................................... 7 U.S. v. Puente, 826 F.2d 1415 (5th Cir. 1987)). ............................................................................. 6 United States v. Brennan, 798 F.2d 581, 589 (2d Cir. 1986).......................................................... 5 United States v. Dunloy, 584 F.2d 6, 11 (2d Cir.1978)................................................................... 3 United States v. Everett, 825 F.2d 658, 661 (2d Cir. 1987) .......................................................... 10 United States v. Khan, 821 F.2d 90 (2d Cir. 1987) ...................................................................... 4-5 United States v. Song, 436 F.3d 137, 139 (2d Cir. 2006) ............................................................... 3 Upstate Shredding, LLC v. Ne. Ferrous, Inc., No. 312CV1015LEKDEP, 2016 WL 865299, at *13 (N.D.N.Y. Mar. 2, 2016) ...................................................................................................... 6 Other Authorities 5 JONES ON EVIDENCE § 34:13 (7th ed.).......................................................................................... 6 Rules Fed. R. Evid. 403 ............................................................................................................................ 9 Fed. R. Evid. 801(c)(2) ................................................................................................................... 3 Fed. R. Evid. 801(d)(1)(B)(i) .......................................................................................................... 3 Fed. R. Evid. 801(d)(2)(B)(i) .......................................................................................................... 4 Fed. R. Evid. 803(6). ................................................................................................................... 6, 7 Fed. R. Evid. 803(8) .................................................................................................................... 6, 7 Fed. R. Evid. 803(8)(A) .............................................................................................................. 1, 8 Fed. R. Evid. 803(8)(A)(ii) ......................................................................................................... 7, 9 Fed. R. Evid. 803(8)(B) .............................................................................................................. 8, 9 ii  Case 1:15-cv-07433-LAP Document 730 Filed 03/17/17 Page 4 of 14 Plaintiff, Virginia Giuffre, by and through her undersigned counsel, hereby files this response in opposition to Defendant’s Motion in Limine to Exclude FBI 302 Statement of Plaintiff [DE 667]. I. PRELIMINARY STATEMENT Defendant has filed a motion in limine seeking to exclude from evidence Ms. Giuffre’s statement to the FBI in 2011 about Jeffrey Epstein’s and Defendant’s sex trafficking crimes, raising a hearsay objection. In Defendant’s Motion in Limine to Exclude FBI 302 Statement of Plaintiff (hereinafter “Mot.”), she appears to misunderstand the purpose for which this document will be admitted—to establish that Ms. Giuffre properly reported her allegations to law enforcement. Accordingly, the document is not being admitted to prove the truth of any matters asserted therein, and thus is not a hearsay statement. In any event, even if the statement is regarded as hearsay, it easily falls within a recognized exception, such as the public record exception of 803(8)(A). Numerous courts, including this one, have admitted FBI 302s under this authority. The statement is also trustworthy because it is simply the FBI’s recording of Ms. Giuffre’s own statement and, of course, Ms. Giuffre is fully available to answer any questions about it at trial. II. FACTUAL BACKGROUND It appears to be undisputed that on March 17, 2011, Ms. Giuffre was interviewed by FBI Special Agents—along with a telephonically present Assistant United States Attorney—at the United States Consulate in Sydney, Australia, as part of an ongoing investigation into Jeffrey Epstein sexual abuse and sex trafficking conspiracy. In due course, a Special Agent prepared a standard summary of Ms. Giuffre’s statement—commonly referred to as an FBI “302.” Ms. Giuffre’s FBI 302 was generated in relation to file number 31E-MM-108062, and was drafted on July 5, 2013. The 302 was published on federally-issued Form FD-302/FD-302a (Rev. 5-8-10) 1  Case 1:15-cv-07433-LAP Document 730 Filed 03/17/17 Page 5 of 14 bearing the official seal of the Federal Bureau of Investigation, and explicitly indicating that the document is an “Official Record” wherein “[a]ll signatures have been verified by a certified FBI information system.” See Edwards Dec., Ex. 1 at 1. Ms. Giuffre properly provided her FBI 302 to the Defendant in discovery. (GIUFFRE001235). Now, Ms. Giuffre intends to present that FBI 302 at trial. III. DISCUSSION In her motion raising a hearsay objection, Defendant mischaracterizes Ms. Giuffre’s purpose for offering the self-authenticating FBI 302. The subject evidence is not being offered for the truth of the matter asserted, rather to rebut the assertion that Ms. Giuffre has failed to properly report her allegations to law enforcement and engaged in a recent fabrication to baselessly initiate the pending litigation. Accordingly, it is not being offered to prove the truth of any matter asserted and thus is not excluded by the rule against hearsay. The FBI 302 is also covered by various hearsay exceptions, and its introduction at trial is not unduly prejudicial in any way. A. MS. GIUFFRE’S FBI 302 IS OFFERED TO PROVE THAT SHE REPORTED HER ALLEGATIONS TO LAW ENFORCEMENT, NOT TO PROVE THE TRUTH OF ANY MATTERS ASSERTED THEREIN. Defendant claims at the beginning of her motion to be confused about why Ms. Giuffre intends to offer her FBI 302 into evidence. See Mot. at 1. In fact, the reason is clear: Ms. Giuffre properly reported her allegations of sex abuse and sex trafficking to federal law enforcement agents in 2011, well before the disputed events in this case occurred. The jury may use that fact of a prior report to law enforcement as one of piece of evidence supporting Ms. Giuffre’s credibility. Of course, because the evidence is coming in to support credibility, the underlying truth of anything that Ms. Giuffre may have stated to the FBI is not at issue. The hearsay rules only 2  Case 1:15-cv-07433-LAP Document 730 Filed 03/17/17 Page 6 of 14 operate to exclude out-of-court statements being offered “in evidence to prove the truth of the matter asserted in the statement.” Fed. R. Evid. 801(c)(2) Because Ms. Giuffre is not offering the statement to prove the truth of the matters asserted—i.e., that Epstein and Defendant had sexually trafficked her—the hearsay prohibition simply does not apply. See, e.g., United States v. Song, 436 F.3d 137, 139 (2d Cir. 2006) (noting that evidence was properly admitted “inasmuch as the challenged statements were offered not for the truth of the matters asserted, but rather, to demonstrate the motivation behind [the declarant’s] actions”); see also United States v. Dunloy, 584 F.2d 6, 11 (2d Cir.1978). Defendant pretends to by puzzled by all of this, and yet Defendant has clearly demonstrated her intention to make issues regarding reporting to law enforce a central part of the trial. A good illustration comes from Defendant’s recently-filed motion to exclude certain 404(b) evidence from witness Rinaldo Rizzo. Defendant argues that Rizzo’s allegations that he saw Defendant, for example, trying to force a 15-year-old Swedish girl to have sex with Epstein, should be discounted because Rizzo did not “report any such events to law enforcement.” Defendant’s Motion to Exclude Evidence Pursuant to Fed. R. Evid. 404(b) at 8. The issue of whether a witness has failed to report a crime to law enforcement is a question that immediately springs to mind. And, in this case, that issue will immediately spring to the minds of the jury considering Ms. Giuffre’s credibility. Ms. Giuffre is entitled to allay such concerns by showing that she properly met with law enforcement in 2011. In an effort to deflect such arguments, Defendant apparently concedes that the FBI 302 could be used to establish Ms. Giuffre’s credibility under Fed. R. Evid. 801(d)(1)(B)(i) if it is used to “rebut an express or implied charge that the defendant recently fabricated it or acted from a recent improper influence or motive in so testifying.” See Mot. at 4. This concession would 3  Case 1:15-cv-07433-LAP Document 730 Filed 03/17/17 Page 7 of 14 appear to be enough to establish the admissibility of the FBI 302 because it is obvious that Defendant will continue to aggressively attack Ms. Giuffre’s credibility by claiming that she is improperly seeking money through this lawsuit or through publicity that will help her write a book. Showing that, in 2011, Ms. Giuffre had reported her allegations to the FBI, will obviously respond to such suggestions. But, Defendant presents a strawman characterization of how the evidence will be used, arguing that Ms. Giuffre will attempt to use the FBI 302 only to respond to suggestions that, in meeting with journalist Sharon Churcher, Ms. Giuffre had no improper motive. See Mot. at 4. Defendant then argues that Ms. Giuffre’s 2011 meeting with Ms. Churcher pre-dated by a few weeks the 2011 FBI meeting, and thus the statement is not a prior consistent statement—i.e., was not made prior to meeting with Ms. Churcher. If this case were solely about Ms. Giuffre’s statements to Ms. Churcher, Defendant might have an argument. But obviously the case is not so limited—as the Court can immediately determine by reviewing the voluminous pleadings Defendant has filed in this case attempting to assassinate the character of Ms. Giuffre on any number of grounds. The FBI 302 rebuts many of those attacks. For example, Defendant’s press release itself suggests that, on December 30, 2014, when Ms. Giuffre filed her CVRA Joinder Motion, she was acting improperly. Of course, a meeting with FBI agents more than three years earlier—in 2011—immediately rebuts the suggestion that the December 30, 2014, the CVRA Joinder Motion was some sort of recent fabrication. Rule 801(d)(2)(B)(i) clearly allows the statement to be admitted. See, e.g., United States v. Khan, 821 F.2d 90 (2d Cir. 1987). It is important to understand that the hearsay rules do not artificially require Ms. Giuffre to point to some specific statement from Defendant attacking her credibility before she is allowed to introduce a prior consistent statement. The rule itself is broadly written, allowing a 4  Case 1:15-cv-07433-LAP Document 730 Filed 03/17/17 Page 8 of 14 prior consistent statement to be admitted to rebut an “implied” charge of fabrication. The Second Circuit has made clear that the party admitting a prior consistent statement does “not have to point to a specific inconsistent statement” being attacked. United States v. Khan, 821 F.2d 90, 94 (2d Cir. 1987). Instead, it is enough to show that opposing counsel has “attacked [the witness’] credibility on cross-examination.” Id. Indeed, “it matters not, however, whether the inconsistent statement is put in through specific testimony or through mischaracterization or suggestive or misleading cross-examination.” United States v. Brennan, 798 F.2d 581, 589 (2d Cir. 1986) (affirming admission of prior consistent statement). If the Court can be certain of one thing in this case, it is that Defendant will raise a broadside attack on Ms. Giuffre’s credibility through cross-examination. Ms. Giuffre will, of course, answer those questions. But she is also entitled to present to the jury evidence supporting her credibility as well by showing this prior consistent statement. To be sure, at this pre-trial stage of the process, the Court cannot be entirely certain of how the trial will unfold. Accordingly, while it seems obvious now that the FBI 302 will be admissible to respond to attacks on Ms. Giuffre’s credibility, the Court may wish to defer ruling on this issue until after Ms. Giuffre is cross-examined. Certainly, at the very least, it would be improper to exclude the evidence at this juncture given that the FBI 302 will undoubtedly become admissible at trial. B. EVEN IF TREATED AS HEARSAY, THE FBI 302 IS ADMISSIBLE PURSUANT TO RULE 803(8) AS A PUBLIC RECORD. For all the reasons just explained, the FBI 302 is not hearsay. Even if the Court were to regard it as hearsay, however, the 302 would still be admissible. Because the document was prepared by a highly-credible public agency—the Federal Bureau of Investigation on a federally- approved form—it is a report of a public office and qualifies for exemption from the hearsay 5  Case 1:15-cv-07433-LAP Document 730 Filed 03/17/17 Page 9 of 14 rules either as a public record under Fed. R. Evid. 803(8) or as a regularly kept business record under Fed. R. Evid. 803(6). As Defendant is forced to concede in her motion, Mot. at 2, Fed. R. Evid. 803(8) provides an exception to the hearsay prohibition for: (8) Public Records. A record or statement of a public office if: (A) it sets out: (i) the office’s activities; (ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or (iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and (B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness. Here, there can be little doubt that the Federal Bureau of Investigation is a “public office.” Nor can there be any real doubt that the FBI’s recording of Ms. Giuffre’s statement is a “matter observed while under a legal duty to report.” The FBI’s “‘duty to report’ encompasses duties explicitly required by law, and also matters within the general subject-matter of the agency which logically assist it in fulfilling its functions, even if no specific statute or regulation mandate that such reports be made.” 5 JONES ON EVIDENCE § 34:13 (7th ed.) (citing U.S. v. Puente, 826 F.2d 1415 (5th Cir. 1987)). Similar FBI records have been regularly admitted by the courts into evidence under this provision, including this court. See, e.g., Spanierman Gallery, Profit Sharing Plan v. Merritt, No. 00CIV5712LTSTHK, 2003 WL 22909160, at *5 (S.D.N.Y. Dec. 9, 2003) (“As is true for police reports, FBI reports are admissible in evidence as either business records, see Fed. R .Evid. 803(6), or as public records, see Fed. R. Evid. 803(8).”); Upstate Shredding, LLC v. Ne. Ferrous, Inc., No. 312CV1015LEKDEP, 2016 WL 865299, at *13 (N.D.N.Y. Mar. 2, 2016) (“The 302 Report itself is admissible as a business record or a public record.”); see also Parsons 6  Case 1:15-cv-07433-LAP Document 730 Filed 03/17/17 Page 10 of 14 v. Honeywell, Inc., 929 F.2d 901, 907 (2d Cir.1991) (police report admissible as public record under Rule 803(8)). For example, in U.S. ex rel. Wuestenhoefer v. Jefferson, the Court admitted FBI 302’s on the basis of Rule 803(8) holding that, “while the subject matters of the witness statements were not observed by the agents, it is clear that the statements themselves were ‘observed.’” No. 4:10-CV-00012-DMB, 2014 WL 7185428, at *2 (N.D. Miss. Dec. 16, 2014). The Court specifically recognized that, “[t]here can be no doubt that summaries of interviews conducted during the course of investigating a federal crime fall squarely within the category of ‘matters within the general subject-matter of [the FBI] which logically assist it in fulfilling its functions.’” Id. Accordingly, the Court concluded that FBI 302’s meet the "duty to report" requirement of Rule 803(8). Id. Likewise here, while the Special Agents who interviewed Ms. Giuffre did not personally observe Jeffrey Epstein or any of his co-conspirators sexually abuse Ms. Giuffre when she was underage, the agents did observe Ms. Giuffre make the statements delineated within the report. Therefore, the FBI 302 is readily admissible under Fed. R. Evid. 803(8)(A)(ii). Attempting to defeat admissibility, Defendant makes the far-fetched argument that somehow the FBI Agents who had travelled all the way to Australia to interview Ms. Giuffre (with an Assistant U.S. Attorney listening in on the phone) were not conducting a “legally authorized” investigation. This argument is ludicrous and has no bearing on admissibility under 803(A)(ii). Even though the U.S. Attorney’s Office had previously entered into a Non- Prosecution Agreement with Epstein and his potential co-conspirators, the Office would have been entitled to investigate the involvement of any other persons in sex trafficking and any other locations where sex-trafficking occurred. 7  Case 1:15-cv-07433-LAP Document 730 Filed 03/17/17 Page 11 of 14 Given that the FBI 302 satisfies the requirements for admission under Rule 803(8)(A), the Defendant can exclude the document only if she carries her burden of showing that the FBI 302 is untrustworthy pursuant to 803(8)(B). To determine trustworthiness, the Court should look to the following four factors: (1) the timeliness of the investigation, (2) the special skill or expertise of the official, (3) whether a hearing was held and at what level, and (4) possible motivational problems." Bingham v. Jefferson Cnty., No. 1:11-cv-48, 2013 WL 1312563, at *7 (E.D. Tex. Mar. 1, 2013) (quoting Moss v. Ole South Real Estate, Inc., 933 F.2d 1300, 1305 (5th Cir. 1991)). Defendant apparently bases her trustworthiness attack on the fact that the FBI 302 produced in this case was produced in a redacted format. Mot. at 3. However, the redactions do not alter any of the actual contents of the FBI 302. The identification, credentials, and qualifications of the Special Agent, and the contents of his report are not changed in any way as a result of redactions designed to protect confidentiality. Instead, the official Federal Bureau of Investigation seal and corresponding attestation that “[a]ll signatures have been verified by a certified FBI information system” establish that, far from being untrustworthy, this is in fact one of the most trustworthy documents that could be introduced in a trial. Any remaining issues about the significant of the redactions are left to the jury to decide. Defendant’s motion offers the example of passages in the 302 that read “Once upstairs_______” or “that _______ demonstrated massage techniques.” Mot. at 4. But, of course, there are other un-redacted statements that are highly significant in corroborating Ms. Giuffre’s testimony. For example, the FBI 302 notes that, while working at the Mar-A-Lago Club, “GIUFFRE started studying for her GED and wanted to become a massage therapist.” See Edwards Dec., Ex. 1 at 2. That statement will be useful to corroborate Ms. Giuffre’s allegations. More broadly, the jury 8  Case 1:15-cv-07433-LAP Document 730 Filed 03/17/17 Page 12 of 14 can make appropriate inferences about the remaining statements that are not redacted, particularly given that Ms. Giuffre will be able to explain what information she provided to the FBI, as well as establishing that she was interviewed by FBI Agents, and that she provided the information to the FBI. And, of course, she will be available to testify at trial to answer any questions that the Defendant may have about all this. The presence of redactions in the 302 does not create a “trustworthiness” problem. Consequently, Defendant has failed to meet her burden of establishing the lack of trustworthiness of the FBI 302 under Rule 803(8)(B). Therefore, the FBI 302 should be admitted pursuant to Rule 803(8)(A)(ii). C. THE FBI 302 IS NOT UNDULY PREJUDICIAL Defendant closes her motion with a brief (four-sentence) argument that the FBI 302 is somehow unduly prejudicial. Mot. at 5. The only argument that Defendant advances, however, is that the jury might somehow be confused because of the redactions contained in the 302. But that is an issue that can be fully explored through cross-examination of Ms. Giuffre. Defendant can ask her what she told the FBI and thus clear up any confusion about the redactions. Indeed, Defendant also remains free to call the FBI Agents who were involved in the interview or the Assistant U.S. Attorney who listened. While these persons are not on the Defendant’s current witness list, Ms. Giuffre would have no objection to them being added. Moreover, the contact information is readily available. For example, Assistant U.S. Attorney Marie Villafana who participated in the interview by phone is still employed at the U.S. Attorney’s Office for the Southern District of Florida. In any event, Federal Rule of Evidence 403 permits exclusion of relevant evidence only where probative values is “substantially outweighed” by risk of confusion. Given that the FBI 302 is being admitted for purposes of showing not the truth any particular sub-allegation contained in the document, but only the general fact that Ms. Giuffre made allegations of this 9  Case 1:15-cv-07433-LAP Document 730 Filed 03/17/17 Page 13 of 14 type to the FBI, the risk of confusion is virtually non-existent. And, of course, to the extent that Defendant wants appropriate cautionary instructions to clarify this point, Ms. Giuffre would have no objection to such instructions. Such instructions would reduce the already-insubstantial chance that the jury will misunderstand what its task is at the trial. See, e.g., United States v. Everett, 825 F.2d 658, 661 (2d Cir. 1987) (recognizing power of “cautionary instructions regarding how the jury was to consider this proof”). IV. CONCLUSION For all the foregoing reasons, the Court should deny Defendant’s Motion in Limine, and allow the FBI 302 to be introduced into evidence at trial. Dated: March 17, 2017 Respectfully Submitted, By: /s/ Bradley J. Edwards Bradley J. Edwards (Pro Hac Vice) FARMER, JAFFE, WEISSING, EDWARDS, FISTOS & LEHRMAN, P.L. 425 North Andrews Avenue, Suite 2 Fort Lauderdale, Florida 33301 (954) 524-2820 BOIES, SCHILLER & FLEXNER LLP Sigrid McCawley (Pro Hac Vice) Meredith Schultz (Pro Hac Vice) Boies Schiller & Flexner LLP 401 E. Las Olas Blvd., Suite 1200 Ft. Lauderdale, FL 33301 (954) 356-0011 David Boies Boies Schiller & Flexner LLP 333 Main Street Armonk, NY 10504 Paul G. Cassell (Pro Hac Vice) S.J. Quinney College of Law University of Utah 10  Case 1:15-cv-07433-LAP Document 730 Filed 03/17/17 Page 14 of 14 383 University St. Salt Lake City, UT 84112(801) 585-52021 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the 17th day of March, 2017, I electronically filed the foregoing document with the Clerk of Court by using the CM/ECF system. I also certify that the foregoing document is being served this day on the individuals identified below via transmission of Notices of Electronic Filing generated by CM/ECF. Laura A. Menninger, Esq. Jeffrey Pagliuca, Esq. HADDON, MORGAN & FOREMAN, P.C. 150 East 10th Avenue Denver, Colorado 80203 Tel: (303) 831-7364 Fax: (303) 832-2628 Email: [email protected] [email protected] By: /s/ Bradley J. Edwards Bradley J. Edwards (Pro Hac Vice) 1 This daytime business address is provided for identification and correspondence purposes only and is not intended to imply institutional endorsement by the University of Utah for this private representation. 11