EFTA00103758.pdf
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
x
UNITED STATES OF AMERICA,
S2 20 Cr. 330 (AJN)
v.
GHISLAINE MAXWELL,
Defendant.
x
OMNIBUS MEMORANDUM OF GHISLAINE MAXWELL
IN SUPPORT OF HER SUPPLEMENTAL PRETRIAL MOTIONS
RELATING TO THE S2 SUPERSEDING INDICTMENT
Christian R. Everdell
COHEN & GRESSER LLP
800 Third Avenue
New York, NY 10022
Phone:
Jeffrey S. Pagliuca
Laura A. Menninger
HADDON, MORGAN & FOREMAN P.C.
150 East 10th Avenue
Denver, Colorado 80203
Phone:
Bobbi C. Stemheim
Law Offices of Bobbi C. Stemheim
33 West 19th Street - 4th Floor
New York, NY 10011
Phone:
Attorneysfor Ghislaine Maxwell
EFTA00103758
TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT
SUMMARY OF NEW ALLEGATIONS IN THE S2 INDICTMENT 4
ARGUMENT 5
I. The NPA Bars Ms. Maxwell's Prosecution on Counts One, Three, Five, and Six. 5
A. Counts Five and Six Allege the Same Offenses that Were Part of the Florida
Investigation and Are Covered by the Plain Terms of the NPA 6
B. The NPA Binds the Southern District of New York as to Counts Five and
Six. 11
C. Counts One and Three Must Also Be Dismissed 17
II. Prosecuting Ms. Maxwell on Counts Five and Six Would Violate Her Rights Under
the Double Jeopardy Clause 18
III. Counts Five and Six Are Time-Barred. 20
IV. The Court Should Dismiss Count Five and Either Count One or Count Three as
Multiplicitous 21
V. The Court Should Dismiss the S2 Indictment for Pre-Indictment Delay. 22
VI. The Court Should Order a Bill of Particulars as to Counts Five and Six. 22
VII. The Court Should Order the Government to Produce Accuser-4's Prior Statements
as Brady Material 24
VIII. Ms. Maxwell Incorporates All of the Arguments Raised in Her Initial Pretrial
Motions and Reasserts Them as to the S2 Indictment. 26
CONCLUSION 26
EFTA00103759
TABLE OF AUTHORITIES
Page(s)
Cases
Clemmons v. Delo,
124 F.3d 944 (8th Cir. 1997) 25
Jones v. Jago,
575 F.2d 1164 (6th Cir. 1978) 25
Ex Parte Lange,
85 U.S. (18 Wall.) 163 (1873) 18
North Carolina v. Pearce,
395 U.S. 711 (1969) 18
United States v. Annabi,
771 F.2d 670 (2d Cir. 1985) passim
United States v. Bortnovsky,
820 F.2d 572 (2d Cir. 1987) 22, 23
United States v. Brown,
No. 99-1230(L), 2002 WL 34244994 (2d Cir. Apr. 26, 2002) 16
United States v. Cambindo Valencia,
609 F.2d 603 (2d Cir. 1979) 20
United States v. Carter,
454 F.2d 426 (4th Cir. 1972) 17
United States v. Garcia-Gonzalez,
714 F.3d 306 (5th Cir. 2013) 21
United States v. Gebbie,
294 F.3d 540 (3rd Cir. 2002) 14, 15, 16, 17
United States v. Gonzalez,
93 F. App'x 268 (2d Cir. 2004) 14, 16
United States v. Harvey,
791 F.2d 294 (4th Cir. 1986) 15
United States v. Korfant,
771 F.2d 660 (2d Cir.1985) 19
EFTA00103760
United States v. Lopez,
356 F.3d 463 (2d Cir. 2004) 18, 19, 20
United States v. Rooney,
37 F.3d 847 (2d Cir. 1994) 17, 18
United States v. Salameh,
152 F.3d 88 (2d Cir. 1998) 14, 16
United States v. Torres,
719 F.2d 549 (2d Cir. 1983) 25
United States v. Van Thournout,
100 F.3d 590 (8th Cir. 1996) 15
White v. Helling,
194 F.3d 937 (8th Cir. 1999) 25
Statutes
18 U.S.C. § 371 21
18 U.S.C. § 1591 passim
18 U.S.C. § 2422 4
18 U.S.C. § 2423(a) 4
18 U.S.C. § 3282 20
18 U.S.C. § 3283 20, 21
Other Authorities
Fed. R. Crim. P. 7(f) 22
U.S. Const., Amend. V 18
iii
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PRELIMINARY STATEMENT
Ghislaine Maxwell respectfully submits this Omnibus Memorandum in Support of her
Supplemental Pretrial Motions Related to the S2 Superseding Indictment ("Motion"). For the
reasons set forth below, Ms. Maxwell moves the Court to:
I. Dismiss Counts One, Three, Five and Six for breach of the Non-Prosecution
Agreement;
2. Dismiss Counts Five and Six for violation of the Double Jeopardy Clause;
3. Dismiss Counts Five and Six as time-barred under the statute of limitations;
4. Dismiss Count Five and Either Count One or Count Three as multiplicitous;
5. Dismiss the S2 Indictment for pre-indictment delay;
6. Order a Bill of Particulars as to Counts Five and Six;
7. Order the government to produce Accuser-4's prior statements as Brady material.
The S2 Superseding Indictment ("S2 Indictment") demonstrates just how far the
government is willing to go to "get" Ms. Maxwell and disingenuously blame her for the crimes
of Jeffrey Epstein. No longer content to charge a 25-year-old case based on purported conduct in
the 1990s, the government now sweeps in the 2000s through the allegations of one person—
Accuser-4.1 But Accuser-4 is not a new witness; she first levied her accusations more than a
decade ago. The Palm Beach FBI and the United States Attorney's Office for the Southern
District of Florida ("USAO-SDFL") interviewed Accuser-4 in or around 2007 during their three-
year investigation of Epstein's alleged sexual abuse (the "Florida Investigation"). And
remarkably, although interviewed just a few years after she claims any misconduct occurred,
Accuser-4 never implicated Ms. Maxwell. Instead, she reported that Epstein's primary assistant
Accuser-4 is identified in the S2 Indictment as Minor Victim-4.
EFTA00103762
at the time, Sarah Kellen, facilitated her sexual abuse, and it was Kellen or Epstein himself—not
Ms. Maxwell—who purportedly called her to schedule massage appointments, sent her gifts, and
encouraged her to recruit other young females to provide massages to Epstein. Indeed, even
after interviewing Accuser-4, the USAO-SDFL never found "any specific evidence against" Ms.
Maxwell related to the subject of their investigation and thus determined she was not a target of
the Florida Investigation.2
Epstein, himself, was never charged with federal crimes in connection with the Florida
Investigation; nor was Kellen. Instead, Epstein entered into a Non-Prosecution Agreement
("NPA") in order to "resolve globally" his own criminal exposure and to immunize Kellen and
any other "potential co-conspirators.s3 As part of the NPA, Epstein agreed to plead guilty to
state prostitution offenses and register as a federal sex offender. He also agreed, in a novel
arrangement, to pay for attorneys to represent his victims in civil lawsuits against him and to
waive his right to contest damages up to an agreed-upon settlement amount. Accuser-4 took full
advantage of the NPA; she received both the benefit of experienced counsel and $446,000 to
resolve her claims against Epstein and his "potential co-conspirators."
Now, over 13 years later, Accuser-4 has surfaced again, except this time with apparently
brand-new allegations against Ms. Maxwell. Seemingly unconcerned with the gaping
inconsistency in Accuser-4's prior (and near contemporaneous) recollections, the government
has added two new counts charging Ms. Maxwell with sex trafficking offenses under 18 U.S.C. §
1591 (Counts Five and Six) and has dramatically expanded the timeframe of the Mann Act
2 Ex. A (Dep't of Justice, Office of Professional Responsibility, Investigation into the U.S. Attorney's Office for the
Southern District of Florida's Resolution of its 2006-2008 Federal Criminal Investigation of Jeffrey Epstein and Its
Interactions with Victims during the Investigation, November 2020) ("OPR Report") at 167 (internal quotations
omitted).
3 A copy of the NPA is attached hereto as Exhibit B.
2
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conspiracies (Counts One and Three) to 2004 based entirely on Accuser-4's allegations. But
these offenses are the exact same offenses that were the subject of the Florida Investigation and
resolved by the NPA, which covers "any potential co-conspirators of Epstein," including Ms.
Maxwell.
The Court ruled unequivocally that the NPA covers "any involvement of [Ms.] Maxwell
in offenses committed by Epstein from 2001 to 2007, other offenses that were the subject of the
FBI and U.S. Attorney's Office investigation, and any offenses that arose from the related grand
jury investigation." (Dkt. 207 at 7). Yet Counts Five and Six fall squarely within all three
categories of offenses for which the NPA immunizes Ms. Maxwell:
• The allegations of Accuser-4 fall within the 2001-2007 timeframe and the new
counts charge violations of 18 U.S.C. § 1591, a statute specifically
enumerated in the NPA.
• The Palm Beach FBI and the USAO-SDFL thoroughly investigated Accuser-
4's allegations as part of the Florida Investigation.
• Accuser-4's allegations were presented to the grand jury in that District and
formed the basis for a conspiracy charge and a sex trafficking charge in a
proposed 60-count federal indictment of Epstein that was dropped pursuant to
the terms of the NPA.
Because Counts Five and Six are based on the exact same evidence investigated and presented to
the SDFL grand jury in 2008, and are the exact same crimes included in the proposed SDFL
indictment against Epstein later abandoned pursuant to the NPA, the government cannot now
charge Ms. Maxwell with these offenses.
Further, the NPA binds the United States Attorney's Office for the Southern District of
New York ("USAO-SDNY") as to the newly-indicted counts. We understand that the Court
previously ruled that under United States v. Annabi, 771 F.2d 670 (2d Cir. 1985) and its progeny,
the language and drafting history of the NPA does not "affirmatively appear" to bind this District
3
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as to the SI Indictment counts. However, Annabi, by its own terms, is inapposite to the
circumstances of this case, where one federal district has agreed that "the United States" will
abandon certain offenses as part of a negotiated agreement and then a second federal district later
seeks to charge those very same offenses based on the exact same conduct. Counts Five and Six
of the S2 Indictment are therefore barred by the NPA. The Court must dismiss these counts, as
well as the expanded Mann Act conspiracies charged in Counts One and Three, which
incorporate the same conduct charged in Counts Five and Six for which Ms. Maxwell has
immunity.
In addition, because the USAO-SDNY is seeking duplicative punishment for the same
offenses that were resolved by the NPA, prosecuting Ms. Maxwell on Counts Five and Six
violates her rights under the Double Jeopardy Clause. The Court should also grant the other
relief Ms. Maxwell seeks for the reasons set forth below.
SUMMARY OF NEW ALLEGATIONS IN THE S2 INDICTMENT
Like the S1 Indictment, Counts One and Three of the S2 Indictment allege that Ms.
Maxwell conspired to violate two separate provisions of the Mann Act, 18 U.S.C. §§ 2422,
2423(a). Count One alleges that Ms. Maxwell conspired to entice "one and more individuals" to
travel in interstate and foreign commerce to engage in "sexual activity for which a person can be
charged with a criminal offense" in violation of 18 U.S.C. § 2422. (S2 Indictment q¶ 11-13).
Count Three alleges that Ms. Maxwell conspired to transport "an individual" in interstate and
foreign commerce to engage in "sexual activity for which a person can be charged with a
criminal offense" in violation of 18 U.S.C. § 2423(a). (Id. ¶¶ 16-19). In the SI Indictment, these
counts were based on conduct that occurred at unspecified times between 1994 and 1997. The
S2 Indictment expands the date range of these conspiracies into the 2000s based on the
4
EFTA00103765
allegations of Accuser-4, alleging conduct that occurred "[f]rom at least in or about 1994, up to
and including in or about 2004." (Id. ¶¶ II, 17).
The S2 Indictment also adds two new counts—Counts Five and Six—alleging that Ms.
Maxwell violated and conspired to violate the federal sex trafficking statute, 18 U.S.C. § 1591.
Count Five alleges that Ms. Maxwell conspired with Epstein and others to recruit "a person"
knowing that the person "had not attained the age of 18 years and would be caused to engage in a
commercial sex act" in violation of 18 U.S.C. § 1591(a). (Id. ¶¶ 23-24). Count Six charges Ms.
Maxwell with a substantive violation of § 1591(a), claiming she "did recruit, entice, harbor,
transport, provide, and obtain by any means" individuals who were under the age of 18,
including Accuser-4, "who were then caused to engage in at least one commercial sex act with
Jeffrey Epstein." (Id.1 27). Both counts are based on the allegations of Accuser-4 and allege
conduct that purportedly occurred "[f]rom at least in or about 2001, up to and including in or
about 2004." (Id. ¶¶ 23, 27).
ARGUMENT
I. The NPA Bars Ms. Maxwell's Prosecution on Counts One, Three, Five, and Six.
The NPA bars any prosecution of Ms. Maxwell for the offenses charged in Counts One,
Three, Five, and Six of the S2 Indictment. The Court has already concluded that the NPA bars
prosecution for "three specific categories of offenses" deriving from the Florida Investigation:
'the offenses set out on pages 1 and 2' of the NPA; namely, `any offenses
that may have been committed by Epstein against the United States from
in or around 2001 through in or around September 2007' including five
enumerated offenses;
(2) 'any other offenses that have been the subject of the joint investigation by
the Federal Bureau of Investigation and the United States Attorney's
Office'; and
(3) 'any offenses that arose from the Federal Grand Jury investigation.'
5
EFTA00103766
(Dkt. 207 at 6 (quoting NPA)). The Court has further concluded that the NPA's co-conspirator
provision covers "any involvement of [Ms.] Maxwell" in any of these same three categories of
offenses. (Id. at 7). There can be no serious dispute that the sex trafficking offenses charged in
Counts Five and Six were investigated as part of the Florida Investigation and fall squarely
within the three categories of immunized offenses that are covered by the NPA. Moreover,
because Counts Five and Six are based on the exact same allegations from the vet); same accuser
that were previously investigated and presented to the grand jury as part of the Florida
Investigation, Annabi and its progeny do not apply and the NPA is binding on the USA0-SDNY
as to these offenses. Accordingly, Counts Five and Six must be dismissed. Moreover, because
Counts One and Three incorporate the same conduct from Counts Five and Six for which Ms.
Maxwell cannot be prosecuted under the NPA, they must also be dismissed.
A. Counts Five and Six Allege the Same Offenses that Were Part of the Florida
Investigation and Are Covered by the Plain Terms of the NPA.
The plain terms of the NPA preclude Ms. Maxwell's prosecution on Counts Five and Six
because they allege conduct that falls within the date range specified in the NPA and charge
specifically enumerated offenses that were part of the Florida Investigation. Count Five alleges
that "[f]rom at least in or about 2001 up to and including in or about 2004," Ms. Maxwell
conspired with Epstein to violate 18 U.S.C. § 1591(a), the law prohibiting sex trafficking of
minors. (S2 Indictment ¶¶ 22-25). Count Six alleges that during the same time period, Ms.
Maxwell committed a substantive violation of the same statute. (Id. ¶¶ 26-27). The NPA bars
prosecution for Ms. Maxwell's involvement in "any offenses that may have been committed by
Epstein against the United States from in or around 2001 through in or around September 2007
including five enumerated offenses." (Dkt. 207 at 6 (internal quotations omitted); see also id. at
7 (NPA covers, among other things, "any involvement of Maxwell in offenses committed by
6
EFTA00103767
Epstein from 2001 to 2007")). Thus, the time period alleged in both Counts Five and Six falls
squarely within the date range covered by the NPA for which Ms. Maxwell is immunized.
Moreover, 18 U.S.C. § 1591(a) is one of the five enumerated offenses in the NPA. (Ex. B at 2 of
7). As such, Counts Five and Six are clearly offenses covered by the NPA.
Ms. Maxwell also cannot be prosecuted on Counts Five and Six because they are based
on the exact same allegations that were already thoroughly investigated by the Palm Beach FBI
and USAO-SDFL and were presented to a grand jury in the Southern District of Florida in
connection with the Florida Investigation. The allegations underlying Counts Five and Six (and
the expanded date range for Counts One and Three) come from a single accuser—Accuser-4—
who alleges that Epstein sexually abused her from approximately 2001-2004 and that Ms.
Maxwell allegedly facilitated that abuse. (S2 Indictment¶¶ 9d, 22-27). Based on our review of
the prior statements of non-testifying witnesses, which the government only recently produced to
the defense on April 13, 2021, we know that FBI Special Agent Elizabeth Nesbitt Kuyrkendall
interviewed the person we believe to be Accuser-4 in connection with the Florida Investigation.
(Ex. C at 22:1-17).4 We also know that Special Agent Kuyrkendall presented her allegations—
the very same allegations that form the basis for Counts Five and Six—to the grand jury in the
Southern District of Florida in support of a proposed 60-count federal indictment of Jeffrey
Epstein and Sarah Kellen. (Id. at 22:17-31:6). The indictment included a conspiracy count and a
substantive count alleging a sex trafficking offense involving Accuser-4. (Id. at 28:3-15
(Accuser-4's allegations formed the basis for "Overt Acts One through 18" and Count Two of
the proposed indictment charging Epstein and Sarah Kellen with "procur[ing] [Accuser-4] to
Exhibit C is a transcript of the March 18, 2008 grand jury testimony of Special Agent Kuyrlcendall, the lead case
agent in charge of the Florida Investigation, in which she summarizes her interview of Accuser-4 and other related
evidence.
7
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engage in commercial sex acts knowing that [Accuser-4] was under 18")).5 Pursuant to the
terms of the NPA, the proposed indictment was never returned, and the USAO-SDFL did not
pursue it further, once Epstein pled guilty on June 30, 2008 to Florida state law charges of
solicitation of prostitution and procurement of minors to engage in prostitution. (Ex. A, OPR
Report at i-ii).
The similarity of the allegations presented to the SDFL grand jury and those alleged in
Counts Five and Six of the S2 Indictment is striking and self-evident. The same overt acts,
including the allegations that form the basis for jurisdiction in SDNY over the crimes charged in
Counts Five and Six, were presented to both grand juries. Furthermore, the proof offered to
corroborate Accuser-4's allegations—e.g., cell phone records, FedEx records, message pad
notes, etc.—was identical. (See Ex. C at 56:21-57:10). The chart below highlights these
similarities:
S2 Indictment SDFL Grand Jury Testimony
Sexual Massages Sexual Massages
"On multiple occasions between approximately "[F]rom 2001 to 2004, [Accuser-4] provided
2001-2004, [Accuser-4] provided nude Mr. Epstein with ... over 100 massages and all
massages to Epstein at the Palm Beach but three of the massages were sexual[] in
Residence, during which Epstein engaged in nature." (Ex. C at 23:19-22).
multiple sex acts with [Accuser-4]." (S2
Indictment ¶ 9d; see also id. at ¶ 25a). The massages took place in Epstein's Palm
Beach residence and Accuser-4 was either nude
or partially nude. (Ex. C at 22:20-24:6).
Payment Payment
"Epstein or one of his employees ... paid "[Accuser-4] was paid between $200 and
[Accuser-4] hundreds of dollars in cash" for $400" for each massage. (Ex. C at 23:25-
each massage. (S2 Indictment ¶ 9d; see also id. 24:10).
5 The government previously denied Ms. Maxwell's request that it produce copies of the proposed 60-count SDFL
indictment and the related 82-page prosecution memo to the defense. To resolve any ambiguity about the charges in
the proposed SDFL indictment and the evidence underlying the counts related to Accuser-4, Ms. Maxwell requests
the Court to order the government to produce both of these documents to the defense.
8
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at ¶ 25a).
Recruiting Others Recruiting Others
"Epstein ... encouraged [Accuser-4] to recruit "Mr. Epstein asked [Accuser-4] if she had any
other young females to provide sexualized friends that would be interested in performing
massages[.]" (S2 Indictment ¶ 9d; see also id. these massages ... that she could bring to
at ¶ 25b). him[.]" (Ex. Cat 26:12-16).
Gifts to Accuser-4 Gifts to Accuser-4
"On multiple occasions between approximately "Mr. Epstein provided [gifts] to [Accuser-4]....
2001 and 2004, Epstein's employees ... sent Epstein would provide her with lingerie.... He
[Accuser-4] gifts, including lingerie, from an would also send her [gifts] via FedEx packages
address in Manhattan, New York to [Accuser- to her residence." (Ex. C at 28:20-29:10)
4's] residence in Florida." (S2 Indictment ¶ 9d; (describing subpoenaed FedEx records).
see also id. at' 25c).
Scheduling Massage Appointments Scheduling Massage Appointments
"Epstein's employees ... called [Accuser-4], "[S]ometimes Sarah [Kellen] would be ... in
including from New York, to schedule New York and scheduled [Accuser-4] to come
appointments for [Accuser-4] to massage and work, but Sarah Kellen's primary role was
Epstein." (S2 Indictment ¶ 9d; see also id. at ¶ to schedule ... [Accuser-4] to come and
25d). perform the massages." (Ex. C at 25:2-6).
"For example, in or about April of 2004 and "[O]n or about April 23th, 2004, Defendant
May of 2004 another employee of Epstein's Sarah Kellen placed a telephone call to a
called [Accuser-4] to schedule such telephone used by [Accuser-4]." (Ex. C at
appointments." (S2 Indictment ¶ 25d). 17:18-19:4; see also id. at 56:24-25
(subpoenaed cell phone records "indicate
telephonic contact with Sarah Kellen")).
The one critical difference between the a legations in the S2 Indictment and the
allegations presented to the SDFL grand jury is this: Accuser-4 never implicated Ms. Maxwell in
the Florida Investigation. Ms. Maxwell is not mentioned even once in the grand jury testimony
concerning Accuser-4. Instead, the grand jury testimony reflects that Accuser-4 implicated
Epstein himself and Sarah Kellen, who was Epstein's primary assistant during the 2001-2004
timeframe charged in Counts Five and Six. According to Accuser-4, it was Kellen, not Ms.
9
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Maxwell, who called Accuser-4 from New York to schedule massage appointments. (Ex. C at
17:18-22, 25:1-6). It was Epstein, not Ms. Maxwell, who encouraged Accuser-2 to recruit her
friends to give him massages. (Id. at 25:25-26:18). And it was Epstein, not Ms. Maxwell, who
provided lingerie and other gifts to Accuser-4 and sent FedEx packages to her residence. (Id. at
28:19-29:10). Furthermore, Accuser-4 alleged that Kellen led Accuser-4 upstairs to Epstein's
bedroom the first time she gave him a massage by herself (id. at 25:7-15) and that Kellen paid
Accuser-4 $500 to take nude photographs of her at the Palm Beach residence at Epstein's request
(id. at 27:1-10).
Ultimately, the proposed SDFL indictment sought to charge Epstein and Kellen, not Ms.
Maxwell, with a sex trafficking offense involving Accuser-4. (Id. at 28:11-14 (the evidence
relating to Accuser-4 formed "the basis for the allegation [in Count Two of the proposed SDFL
indictment] that Jeffrey Epstein and Sarah Kellen procured [Accuser-4] to engage in commercial
sex acts knowing that she was under 18")). This is entirely consistent with the language of the
NPA, which names Kellen, and not Ms. Maxwell, as one of the four named "potential co-
conspirators." (Ex. B at 5 of 7). In fact, the USAO-SDFL conceded that it never found "any
specific evidence against" Ms. Maxwell related to the subject of their investigation. (See Ex. A,
OPR Report at 167 (internal quotations omitted)).
Hence, it would not only be impermissible under the NPA to prosecute Ms. Maxwell for
the offenses charged in Counts Five and Six of the S2 Indictment because they were "the subject
of the Florida Investigation and "the related grand jury investigation." (Dkt. 207 at 7). It would
also be entirely unjust to base a prosecution in this District on the same offenses related to the
same accuser who never mentioned Ms. Maxwell—and instead implicated Sarah Kellen—when
she first reported the allegations that form the basis of Counts Five and Six over thirteen years
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ago when the events were still recent.6 Accordingly, because the USAO-SDNY is bound by the
terms of the NPA as to the offenses charged in Counts Five and Six for the reasons discussed
below, Ms. Maxwell cannot be prosecuted for those counts.
B. The NPA Binds the Southern District of New York as to Counts Five and Six.
Although the Court ruled that the NPA does not bind the USAO-SDNY as to the charges
in the S 1 Indictment (Dkt. 207 at 4-6), the NPA does bind the USAO-SDNY as to the sex
trafficking offenses charged in Counts Five and Six that were added to the S2 Indictment.
United States v. Annabi, 771 F.2d 670 (1985) and its progeny, which the Court relied upon in its
earlier ruling, do not mandate a different result. In its prior ruling, the Court noted that Annabi
established "something akin to a clear statement rule" that a plea agreement binds only the U.S.
Attorney's Office for the district in which the plea is entered "unless it affirmatively appears that
the agreement contemplates a broader restriction." (Dkt. 207 at 4 (quoting Annabi, 771 F.2d at
672). That interpretive rule, however, only applies in situations where the district bringing the
second prosecution charges offenses different from the offenses resolved by the plea agreement
in the first prosecution. Annabi itself specifically noted that it was not addressing a situation
where the charges in the follow-on prosecution are "identical to the dismissed charges." Annabi,
771 F.2d at 672. Accordingly, the Court is not bound by the rule in Annabi because Counts Five
and Six are identical to the charges presented to the SDFL grand jury that were resolved by the
NPA. When examined without the overlay of Annabi, the terms and the drafting history of the
NPA indicate that the agreement should be read to preclude other districts, including the USAO-
6 Accuser-4's statements to the FBI, and any other prior statements in which she did not mention Ms. Maxwell, are
exculpatory Brady material that the government should immediately produce to the defense. (See Section VII infra).
11
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SDNY, from prosecuting Epstein's "potential co-conspirators" for the offenses covered by the
NPA.'
In Annabi, the defendants were arrested at Kennedy Airport on November 23, 1982, in
possession of four kilograms of heroin and were charged in a three-count indictment in the
Eastern District of New York with (I) conspiracy to import heroin into the United States, (2) a
substantive offense of importing heroin, and (3) possession of heroin with intent to distribute. Id.
at 671. All three charges arose out of the defendants' arrest and the charged conduct was limited
to November 23, 1982. Id. The defendants agreed to plead guilty to the substantive importation
charge (Count Two) to resolve the case. Id. At the time of the plea, the prosecutor stated on the
record that "the only agreement that exists between the defendants and the Government is that at
the time of the imposition of sentence on Count Two, the Government would move to dismiss
the two open remaining counts as to each defendant." Id. Counts One and Three were dismissed
at sentencing. Id.
Approximately two-and-a-half years later, the defendants were charged in the Southern
District of New York in a multi-count indictment that included one count of conspiracy to
distribute heroin (Count One) and one count of engaging in a continuing criminal enterprise
(Count Three). Id. Both counts alleged a broader period of criminal conduct occurring from
October 1982 until March 15, 1985. Id. The defendants argued that their plea agreement with
the Eastern District of New York barred their prosecution on Counts One and Three of the
7 As argued in our initial motion, Ms. Maxwell maintains that, even if the Court applies Annaba, the NPA precludes
the USAO-SDNY from prosecuting Ms. Maxwell for any offense she allegedly committed with Epstein. (See Dkt.
142 at 18.25; Dkt. 223 at 7-13). We preserve that argument and reassert it with respect to Counts One through Six
of the S2 Indictment. However, in light of the Court's prior ruling that the NPA does not bind the USAO•SDNY as
to the charges in the SI Indictment, we argue here that the Court need not, and should not, apply Annabi to
determine whether the NPA bars the USAO-SDNY from charging the offenses in Counts Five and Six of the S2
Indictment.
12
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Southern District of New York indictment because they arose out of "the same conspiratorial
agreement that underlay the charges dismissed in the Eastern District." Id. at 672.
The Second Circuit rejected this argument finding that, as a general rule, a plea
agreement only binds the prosecutor's office that entered into the agreement, unless it
"affirmatively appears that the agreement contemplates a broader restriction." Id. However, the
Court highlighted the apparent anomaly of this rule, noting that an agreement with "the
Government" to dismiss counts of an indictment "might be thought to bar the United States from
reprosecuting the dismissed charges in any judicial district unless the agreement expressly limits
the scope of the agreement to the district in which the dismissed charges are initially brought."
Id. The Court further explained that application of the "affirmative appearance" rule was
nevertheless appropriate because it had not been presented with a situation where the counts in
the second prosecution were identical to the dismissed counts. Id. Although the defendants had
argued that the charges in Counts One and Three of the SDNY indictment "result[ed] from the
same conspiratorial agreement" as the dismissed counts in the EDNY indictment, the Court
found that the SDNY charges covered conduct "extending more than two years beyond the date
of the period covered by the dismissed charges," are were therefore "not the same as the charges
that were dismissed." Id. As a result, the Court found that the default rule could be applied in
that case. Id. ("[T]he new charges are sufficiently distinct at least to warrant application of the
... rule concerning construction of plea agreements.").
Annabi, therefore, did not hold that the "affirmative appearance" rule of construction
applies in cases, like this one, where one federal district has agreed that "the United States" will
abandon certain offenses as part of a negotiated agreement, and then a second federal district
later seeks to charge those very same offenses based on the exact same conduct. By its own
13
EFTA00103774
reasoning, Annabi does not apply in these circumstances, nor do subsequent Second Circuit cases
that applied the Annabi rule. See, e.g., United States v. Salameh, 152 F.3d 88, 118-20 (2d Cir.
1998) (defendant pled guilty in EDNY to using the passport of another person to enter the United
States and later charged in SDNY with related, but distinct terrorism offenses); United States v.
Gonzalez, 93 F. App'x 268, 269-70 (2d Cir. 2004) (defendant pled guilty in the District of New
Mexico to drug conspiracy and later charged in the Western District of New York with related,
but distinct weapons possession offense). The Court should not apply them here.
Instead, the Court should follow the Third Circuit's approach in United States v. Gebbie,
294 F.3d 540 (3nd Cir. 2002), which involved a situation like this one where the charges in the
second prosecution were identical to the dismissed charges. In Gebbie, the defendants were
charged in a multi-count indictment in the Southern District of Ohio charging them with various
offenses related to a scheme to make false statements to the U.S. Postal Service. 294 F.3d at
542. As part of their plea agreement, the defendants pled guilty to misprision of a felony in
exchange for dismissal of the counts in the indictment. Id. at 543. The plea agreement further
provided that the agreement did not protect the defendants from prosecution for "other crimes or
offenses" which "the United States" discovers by independent investigation. Id. at 545-46. A
few months after entering their plea, the defendants were charged in the Western District of
Pennsylvania with "the same crimes and offenses that were at issue" in the Ohio prosecution. Id.
at 546 (emphasis in original). Because the plea agreement barred "the United States" from
prosecuting the defendants for the same crimes covered by the agreement, the question for the
Court was: "who is bound when a plea agreement refers to `the United States' or 'the
Government'?" Id. In other words, did the use of the term "the United States" in the Ohio plea
14
EFTA00103775
agreement bind the Western District of Pennsylvania and bar it from charging the same offenses
in a subsequent prosecution? The Court held that it did:
We hold, therefore, that when a United States Attorney negotiates
and contracts on behalf of "the United States" or "the
Government" in a plea agreement for specific crimes, that attorney
speaks for and binds all of his or her fellow United States
Attorneys with respect to those same crimes and those same
defendants.
Id. at 550 (emphasis added); see also United States v. Van Thournout, 100 F.3d 590, 594 (8th
Cir. 1996) ("Absent an express limitation, any promises made by an Assistant United States
Attorney in one district will bind an Assistant United States Attorney in another district.");
United States v. Harvey, 791 F.2d 294, 303 (4th Cir. 1986) ("It is the Government at large—not
just specific United States Attorneys or United States `Districts'—that is bound by plea
agreements negotiated by agents of Government.").
This case presents the exact set of circumstances carved out by Annabi and directly
addressed in Gebbie. Here, the co-conspirator provision of the NPA provides that if Epstein
abides by the terms of the agreement, "the United States" will not institute any criminal charges
"against any potential co-conspirators of Epstein," which immunizes Ms. Maxwell for the
offenses covered by the NPA. (Ex. B at 5 of 7; see also Dkt. 207 at 7). As set forth above,
Counts Five and Six of the S2 Indictment are based on the same alleged conduct involving
Accuser-4 from 2001-2004 that was presented to the SDFL grand jury and formed the basis for
several overt acts of a conspiracy charge and a substantive sex trafficking offense against Epstein
in the proposed SDFL indictment. The prosecution of those offenses was abandoned as part of
the bargain struck in the NPA, which Epstein fully performed and from which Accuser-4
benefitted. In sum, the USAO-SDNY is trying to prosecute Ms. Maxwell in Counts Five and Six
for the identical charges that were resolved by the NPA. In these circumstances, Annabi and its
15
EFTA00103776
progeny do not control.8 The Court should instead follow Gebbie and find that NPA precludes
the USAO-SDNY from charging Counts Five and Six.
This result is consistent with the terms and the drafting history of the NPA. As noted in
our previous motion, the use of the phrase "the United States" in the co-conspirator immunity
provision of the NPA stands in stark contrast to Epstein's immunity provision, which is
expressly limited to the SDFL. (Dkt. 223 at 9-10). The broad language of the co-conspirator
provision reflects Epstein's desire, which his attorneys communicated to the USAO-SDFL, that
he would be "the only one who takes the blame for what happened" (Ex. A, OPR Report at 167
(internal quotations omitted)). Furthermore, it is consistent with Epstein's goal "to resolve
globally his state and federal criminal liability," which is set forth in the factual recitals of the
NPA. (Ex. B at 2 of 7; see also Ex. D ¶ 5 (declaration of AUSA A. Marie Villafaiia noting that
Epstein "sought a global resolution of the matter"). Epstein and his counsel were clearly aware
that the investigation had extended beyond the SDFL and involved New York-based witnesses.
Indeed, we now know from discovery recently produced by the government that the government
interviewed at least three New York-based witnesses in connection with the Florida
Investigation, two of whom implicated other potential co-conspirators of Epstein. (Exs. E-G).
Hence, these provisions of the NPA reflect Epstein's desire to ensure that he would not become
embroiled in subsequent prosecutions of his "potential co-conspirators" in any other districts.
(Dkt. 223 at 11).
Moreover, this result is consistent with fundamental fairness. Allowing a federal district
to prosecute a defendant for an offense that is identical to one that was already resolved as part of
8 For the same reasons, the Court is not bound by subsequent Second Circuit decisions interpreting Annabi, which
have found that the use of phrases like "the United States" or "the government" in a plea agreement does not create
an "affirmative appearance" to bind other districts. See Salameh, 152 F.3d at 120; Gonzalez, 93 F. App'x at 270;
United States v. Brown, No. 99-1230(L), 2002 WL 34244994, at •2 (2d Cir. Apr. 26, 2002).
16
EFTA00103777
a non-prosecution agreement with another district would be a miscarriage of justice. See United
States v. Caner, 454 F.2d 426, 427-28 (4th Cir. 1972) (federally prosecuting defendant a second
time for the same charges previously resolved by a plea agreement with a different federal
district puts at stake "the honor of the government[,] public confidence in the fair administration
of justice, and the efficient administration of justice in a federal scheme of government");
Gebbie, 294 F.3d at 550 ("United States Attorneys should not be viewed as sovereigns of
autonomous fiefdoms. They represent the United States, and their promises on behalf of the
Government must bind each other absent express contractual limitations or disavowals to the
contrary."). For these reasons, the NPA bars the USAO-SDNY from prosecuting Ms. Maxwell
for the offenses charged in Counts Five and Six of the S2 Indictment. They must therefore be
dismissed.
C. Counts One and Three Must Also Be Dismissed.
Because Counts Five and Six must be dismissed, the expanded Mann Act conspiracies
charged in Counts One and Three must also be dismissed. In the S1 Indictment, the conspiracies
charged in Counts One and Three were confined to a four-year period from 1994-1997, which
the Court found was not covered by the NPA. (Dkt. 207 at 6-7). In the S2 Indictment, by
contrast, the conspiracies charged in Counts One and Three cover a much broader timeframe
from 1994-2004 because they incorporate the same conduct from 2001-2004 involving Accuser-
4 charged in Counts Five and Six. As previously discussed, the NPA bars the government from
prosecuting Ms. Maxwell for these offenses. Hence, as currently charged, the government could
offer inadmissible evidence excluded by the NPA as proof of Counts One and Three. It would
be impermissible for the jury to consider such evidence in connection with Counts One and
Three and any guilty verdict based on proof related to Accuser-4, or any other conduct covered
by the NPA, might require reversal. See United States v. Rooney, 37 F.3d 847, 855-56 (2d Cir.
17
EFTA00103778
1994) (reversal of conviction may be required due to "prejudicial spillover" in cases in which the
jury relies on inadmissible evidence related to an invalidated count to convict on the remaining
counts). Accordingly, the Court must dismiss Counts One and Three as well.
H. Prosecuting Ms. Maxwell on Counts Five and Six Would Violate Her Rights Under
the Double Jeopardy Clause.
Prosecuting Ms. Maxwell on Counts Five and Six would also violate her rights under the
Double Jeopardy Clause. The Double Jeopardy Clause provides that no person shall "be subject
for the same offence to be twice put in jeopardy of life or limb." U.S. Const., Amend. V. The
Clause protects criminal defendants against "a second prosecution for the same offense after
acquittal," "a second prosecution for the same offense after conviction," and "multiple
punishments for the same offense." United States v. Lopez, 356 F.3d 463, 467 (2d Cir. 2004)
(quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969) overruled on other grounds by
Alabama v. Smith, 490 U.S. 794 (1989)). The Supreme Court first established the principle that
the Double Jeopardy Clause protects against multiple punishments for the same offense almost
150 years ago in Ex Parte Lange, 85 U.S. (18 Wall.) 163 (1873), and it is equally important as
the protection against a successive prosecution for the same offense.
If there is anything settled in the jurisprudence of England and
America, it is that no man can be twice lawfully punished for the
same offence. And ... there has never been any doubt of (this
rule's) entire and complete protection of the party when a second
punishment is proposed in the same court, on the same facts, for
the same statutory offense.
(T)he Constitution was designed as much to prevent the
criminal from being twice punished for the same offense as from
being twice tried for it.
Pearce, 395 U.S. at 717-18 (quoting Lange, 85 U.S. (18 Wall.) at 168) (emphasis added).
Here, it is beyond dispute that Epstein was already punished for the offenses covered by
the NPA. The NPA states that, in return for an agreement not to prosecute him for the offenses
18
EFTA00103779
specified in the NPA, Epstein had to fulfill a series of terms and conditions. These included: (1)
pleading guilty in Florida state court to one count of solicitation of prostitution and one count of
solicitation of minors to engage in prostitution, (2) registering as a federal sex offender, (3)
paying for an attorney to represent his victims to sue him for personal injuries, and (4) waiving
his right to contest any damages awarded in those lawsuits up to an agreed-upon amount. (Ex. B
at 2-5 of 7). One of the government's "key objectives" in the NPA was "to preserve a federal
remedy" for Epstein's alleged victims. (Ex. D ¶ 5). Epstein fully performed these conditions
and paid over $12.5 million in settlements to multiple alleged victims. (Ex. H). Indeed, Epstein
paid $446,000 to the person we believe to be Accuser-4 and her attorneys. (Id.; Ex. I).
SOUTHERN DISTRICT OF NEW YORK
x
UNITED STATES OF AMERICA,
S2 20 Cr. 330 (AJN)
v.
GHISLAINE MAXWELL,
Defendant.
x
OMNIBUS MEMORANDUM OF GHISLAINE MAXWELL
IN SUPPORT OF HER SUPPLEMENTAL PRETRIAL MOTIONS
RELATING TO THE S2 SUPERSEDING INDICTMENT
Christian R. Everdell
COHEN & GRESSER LLP
800 Third Avenue
New York, NY 10022
Phone:
Jeffrey S. Pagliuca
Laura A. Menninger
HADDON, MORGAN & FOREMAN P.C.
150 East 10th Avenue
Denver, Colorado 80203
Phone:
Bobbi C. Stemheim
Law Offices of Bobbi C. Stemheim
33 West 19th Street - 4th Floor
New York, NY 10011
Phone:
Attorneysfor Ghislaine Maxwell
EFTA00103758
TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT
SUMMARY OF NEW ALLEGATIONS IN THE S2 INDICTMENT 4
ARGUMENT 5
I. The NPA Bars Ms. Maxwell's Prosecution on Counts One, Three, Five, and Six. 5
A. Counts Five and Six Allege the Same Offenses that Were Part of the Florida
Investigation and Are Covered by the Plain Terms of the NPA 6
B. The NPA Binds the Southern District of New York as to Counts Five and
Six. 11
C. Counts One and Three Must Also Be Dismissed 17
II. Prosecuting Ms. Maxwell on Counts Five and Six Would Violate Her Rights Under
the Double Jeopardy Clause 18
III. Counts Five and Six Are Time-Barred. 20
IV. The Court Should Dismiss Count Five and Either Count One or Count Three as
Multiplicitous 21
V. The Court Should Dismiss the S2 Indictment for Pre-Indictment Delay. 22
VI. The Court Should Order a Bill of Particulars as to Counts Five and Six. 22
VII. The Court Should Order the Government to Produce Accuser-4's Prior Statements
as Brady Material 24
VIII. Ms. Maxwell Incorporates All of the Arguments Raised in Her Initial Pretrial
Motions and Reasserts Them as to the S2 Indictment. 26
CONCLUSION 26
EFTA00103759
TABLE OF AUTHORITIES
Page(s)
Cases
Clemmons v. Delo,
124 F.3d 944 (8th Cir. 1997) 25
Jones v. Jago,
575 F.2d 1164 (6th Cir. 1978) 25
Ex Parte Lange,
85 U.S. (18 Wall.) 163 (1873) 18
North Carolina v. Pearce,
395 U.S. 711 (1969) 18
United States v. Annabi,
771 F.2d 670 (2d Cir. 1985) passim
United States v. Bortnovsky,
820 F.2d 572 (2d Cir. 1987) 22, 23
United States v. Brown,
No. 99-1230(L), 2002 WL 34244994 (2d Cir. Apr. 26, 2002) 16
United States v. Cambindo Valencia,
609 F.2d 603 (2d Cir. 1979) 20
United States v. Carter,
454 F.2d 426 (4th Cir. 1972) 17
United States v. Garcia-Gonzalez,
714 F.3d 306 (5th Cir. 2013) 21
United States v. Gebbie,
294 F.3d 540 (3rd Cir. 2002) 14, 15, 16, 17
United States v. Gonzalez,
93 F. App'x 268 (2d Cir. 2004) 14, 16
United States v. Harvey,
791 F.2d 294 (4th Cir. 1986) 15
United States v. Korfant,
771 F.2d 660 (2d Cir.1985) 19
EFTA00103760
United States v. Lopez,
356 F.3d 463 (2d Cir. 2004) 18, 19, 20
United States v. Rooney,
37 F.3d 847 (2d Cir. 1994) 17, 18
United States v. Salameh,
152 F.3d 88 (2d Cir. 1998) 14, 16
United States v. Torres,
719 F.2d 549 (2d Cir. 1983) 25
United States v. Van Thournout,
100 F.3d 590 (8th Cir. 1996) 15
White v. Helling,
194 F.3d 937 (8th Cir. 1999) 25
Statutes
18 U.S.C. § 371 21
18 U.S.C. § 1591 passim
18 U.S.C. § 2422 4
18 U.S.C. § 2423(a) 4
18 U.S.C. § 3282 20
18 U.S.C. § 3283 20, 21
Other Authorities
Fed. R. Crim. P. 7(f) 22
U.S. Const., Amend. V 18
iii
EFTA00103761
PRELIMINARY STATEMENT
Ghislaine Maxwell respectfully submits this Omnibus Memorandum in Support of her
Supplemental Pretrial Motions Related to the S2 Superseding Indictment ("Motion"). For the
reasons set forth below, Ms. Maxwell moves the Court to:
I. Dismiss Counts One, Three, Five and Six for breach of the Non-Prosecution
Agreement;
2. Dismiss Counts Five and Six for violation of the Double Jeopardy Clause;
3. Dismiss Counts Five and Six as time-barred under the statute of limitations;
4. Dismiss Count Five and Either Count One or Count Three as multiplicitous;
5. Dismiss the S2 Indictment for pre-indictment delay;
6. Order a Bill of Particulars as to Counts Five and Six;
7. Order the government to produce Accuser-4's prior statements as Brady material.
The S2 Superseding Indictment ("S2 Indictment") demonstrates just how far the
government is willing to go to "get" Ms. Maxwell and disingenuously blame her for the crimes
of Jeffrey Epstein. No longer content to charge a 25-year-old case based on purported conduct in
the 1990s, the government now sweeps in the 2000s through the allegations of one person—
Accuser-4.1 But Accuser-4 is not a new witness; she first levied her accusations more than a
decade ago. The Palm Beach FBI and the United States Attorney's Office for the Southern
District of Florida ("USAO-SDFL") interviewed Accuser-4 in or around 2007 during their three-
year investigation of Epstein's alleged sexual abuse (the "Florida Investigation"). And
remarkably, although interviewed just a few years after she claims any misconduct occurred,
Accuser-4 never implicated Ms. Maxwell. Instead, she reported that Epstein's primary assistant
Accuser-4 is identified in the S2 Indictment as Minor Victim-4.
EFTA00103762
at the time, Sarah Kellen, facilitated her sexual abuse, and it was Kellen or Epstein himself—not
Ms. Maxwell—who purportedly called her to schedule massage appointments, sent her gifts, and
encouraged her to recruit other young females to provide massages to Epstein. Indeed, even
after interviewing Accuser-4, the USAO-SDFL never found "any specific evidence against" Ms.
Maxwell related to the subject of their investigation and thus determined she was not a target of
the Florida Investigation.2
Epstein, himself, was never charged with federal crimes in connection with the Florida
Investigation; nor was Kellen. Instead, Epstein entered into a Non-Prosecution Agreement
("NPA") in order to "resolve globally" his own criminal exposure and to immunize Kellen and
any other "potential co-conspirators.s3 As part of the NPA, Epstein agreed to plead guilty to
state prostitution offenses and register as a federal sex offender. He also agreed, in a novel
arrangement, to pay for attorneys to represent his victims in civil lawsuits against him and to
waive his right to contest damages up to an agreed-upon settlement amount. Accuser-4 took full
advantage of the NPA; she received both the benefit of experienced counsel and $446,000 to
resolve her claims against Epstein and his "potential co-conspirators."
Now, over 13 years later, Accuser-4 has surfaced again, except this time with apparently
brand-new allegations against Ms. Maxwell. Seemingly unconcerned with the gaping
inconsistency in Accuser-4's prior (and near contemporaneous) recollections, the government
has added two new counts charging Ms. Maxwell with sex trafficking offenses under 18 U.S.C. §
1591 (Counts Five and Six) and has dramatically expanded the timeframe of the Mann Act
2 Ex. A (Dep't of Justice, Office of Professional Responsibility, Investigation into the U.S. Attorney's Office for the
Southern District of Florida's Resolution of its 2006-2008 Federal Criminal Investigation of Jeffrey Epstein and Its
Interactions with Victims during the Investigation, November 2020) ("OPR Report") at 167 (internal quotations
omitted).
3 A copy of the NPA is attached hereto as Exhibit B.
2
EFTA00103763
conspiracies (Counts One and Three) to 2004 based entirely on Accuser-4's allegations. But
these offenses are the exact same offenses that were the subject of the Florida Investigation and
resolved by the NPA, which covers "any potential co-conspirators of Epstein," including Ms.
Maxwell.
The Court ruled unequivocally that the NPA covers "any involvement of [Ms.] Maxwell
in offenses committed by Epstein from 2001 to 2007, other offenses that were the subject of the
FBI and U.S. Attorney's Office investigation, and any offenses that arose from the related grand
jury investigation." (Dkt. 207 at 7). Yet Counts Five and Six fall squarely within all three
categories of offenses for which the NPA immunizes Ms. Maxwell:
• The allegations of Accuser-4 fall within the 2001-2007 timeframe and the new
counts charge violations of 18 U.S.C. § 1591, a statute specifically
enumerated in the NPA.
• The Palm Beach FBI and the USAO-SDFL thoroughly investigated Accuser-
4's allegations as part of the Florida Investigation.
• Accuser-4's allegations were presented to the grand jury in that District and
formed the basis for a conspiracy charge and a sex trafficking charge in a
proposed 60-count federal indictment of Epstein that was dropped pursuant to
the terms of the NPA.
Because Counts Five and Six are based on the exact same evidence investigated and presented to
the SDFL grand jury in 2008, and are the exact same crimes included in the proposed SDFL
indictment against Epstein later abandoned pursuant to the NPA, the government cannot now
charge Ms. Maxwell with these offenses.
Further, the NPA binds the United States Attorney's Office for the Southern District of
New York ("USAO-SDNY") as to the newly-indicted counts. We understand that the Court
previously ruled that under United States v. Annabi, 771 F.2d 670 (2d Cir. 1985) and its progeny,
the language and drafting history of the NPA does not "affirmatively appear" to bind this District
3
EFTA00103764
as to the SI Indictment counts. However, Annabi, by its own terms, is inapposite to the
circumstances of this case, where one federal district has agreed that "the United States" will
abandon certain offenses as part of a negotiated agreement and then a second federal district later
seeks to charge those very same offenses based on the exact same conduct. Counts Five and Six
of the S2 Indictment are therefore barred by the NPA. The Court must dismiss these counts, as
well as the expanded Mann Act conspiracies charged in Counts One and Three, which
incorporate the same conduct charged in Counts Five and Six for which Ms. Maxwell has
immunity.
In addition, because the USAO-SDNY is seeking duplicative punishment for the same
offenses that were resolved by the NPA, prosecuting Ms. Maxwell on Counts Five and Six
violates her rights under the Double Jeopardy Clause. The Court should also grant the other
relief Ms. Maxwell seeks for the reasons set forth below.
SUMMARY OF NEW ALLEGATIONS IN THE S2 INDICTMENT
Like the S1 Indictment, Counts One and Three of the S2 Indictment allege that Ms.
Maxwell conspired to violate two separate provisions of the Mann Act, 18 U.S.C. §§ 2422,
2423(a). Count One alleges that Ms. Maxwell conspired to entice "one and more individuals" to
travel in interstate and foreign commerce to engage in "sexual activity for which a person can be
charged with a criminal offense" in violation of 18 U.S.C. § 2422. (S2 Indictment q¶ 11-13).
Count Three alleges that Ms. Maxwell conspired to transport "an individual" in interstate and
foreign commerce to engage in "sexual activity for which a person can be charged with a
criminal offense" in violation of 18 U.S.C. § 2423(a). (Id. ¶¶ 16-19). In the SI Indictment, these
counts were based on conduct that occurred at unspecified times between 1994 and 1997. The
S2 Indictment expands the date range of these conspiracies into the 2000s based on the
4
EFTA00103765
allegations of Accuser-4, alleging conduct that occurred "[f]rom at least in or about 1994, up to
and including in or about 2004." (Id. ¶¶ II, 17).
The S2 Indictment also adds two new counts—Counts Five and Six—alleging that Ms.
Maxwell violated and conspired to violate the federal sex trafficking statute, 18 U.S.C. § 1591.
Count Five alleges that Ms. Maxwell conspired with Epstein and others to recruit "a person"
knowing that the person "had not attained the age of 18 years and would be caused to engage in a
commercial sex act" in violation of 18 U.S.C. § 1591(a). (Id. ¶¶ 23-24). Count Six charges Ms.
Maxwell with a substantive violation of § 1591(a), claiming she "did recruit, entice, harbor,
transport, provide, and obtain by any means" individuals who were under the age of 18,
including Accuser-4, "who were then caused to engage in at least one commercial sex act with
Jeffrey Epstein." (Id.1 27). Both counts are based on the allegations of Accuser-4 and allege
conduct that purportedly occurred "[f]rom at least in or about 2001, up to and including in or
about 2004." (Id. ¶¶ 23, 27).
ARGUMENT
I. The NPA Bars Ms. Maxwell's Prosecution on Counts One, Three, Five, and Six.
The NPA bars any prosecution of Ms. Maxwell for the offenses charged in Counts One,
Three, Five, and Six of the S2 Indictment. The Court has already concluded that the NPA bars
prosecution for "three specific categories of offenses" deriving from the Florida Investigation:
'the offenses set out on pages 1 and 2' of the NPA; namely, `any offenses
that may have been committed by Epstein against the United States from
in or around 2001 through in or around September 2007' including five
enumerated offenses;
(2) 'any other offenses that have been the subject of the joint investigation by
the Federal Bureau of Investigation and the United States Attorney's
Office'; and
(3) 'any offenses that arose from the Federal Grand Jury investigation.'
5
EFTA00103766
(Dkt. 207 at 6 (quoting NPA)). The Court has further concluded that the NPA's co-conspirator
provision covers "any involvement of [Ms.] Maxwell" in any of these same three categories of
offenses. (Id. at 7). There can be no serious dispute that the sex trafficking offenses charged in
Counts Five and Six were investigated as part of the Florida Investigation and fall squarely
within the three categories of immunized offenses that are covered by the NPA. Moreover,
because Counts Five and Six are based on the exact same allegations from the vet); same accuser
that were previously investigated and presented to the grand jury as part of the Florida
Investigation, Annabi and its progeny do not apply and the NPA is binding on the USA0-SDNY
as to these offenses. Accordingly, Counts Five and Six must be dismissed. Moreover, because
Counts One and Three incorporate the same conduct from Counts Five and Six for which Ms.
Maxwell cannot be prosecuted under the NPA, they must also be dismissed.
A. Counts Five and Six Allege the Same Offenses that Were Part of the Florida
Investigation and Are Covered by the Plain Terms of the NPA.
The plain terms of the NPA preclude Ms. Maxwell's prosecution on Counts Five and Six
because they allege conduct that falls within the date range specified in the NPA and charge
specifically enumerated offenses that were part of the Florida Investigation. Count Five alleges
that "[f]rom at least in or about 2001 up to and including in or about 2004," Ms. Maxwell
conspired with Epstein to violate 18 U.S.C. § 1591(a), the law prohibiting sex trafficking of
minors. (S2 Indictment ¶¶ 22-25). Count Six alleges that during the same time period, Ms.
Maxwell committed a substantive violation of the same statute. (Id. ¶¶ 26-27). The NPA bars
prosecution for Ms. Maxwell's involvement in "any offenses that may have been committed by
Epstein against the United States from in or around 2001 through in or around September 2007
including five enumerated offenses." (Dkt. 207 at 6 (internal quotations omitted); see also id. at
7 (NPA covers, among other things, "any involvement of Maxwell in offenses committed by
6
EFTA00103767
Epstein from 2001 to 2007")). Thus, the time period alleged in both Counts Five and Six falls
squarely within the date range covered by the NPA for which Ms. Maxwell is immunized.
Moreover, 18 U.S.C. § 1591(a) is one of the five enumerated offenses in the NPA. (Ex. B at 2 of
7). As such, Counts Five and Six are clearly offenses covered by the NPA.
Ms. Maxwell also cannot be prosecuted on Counts Five and Six because they are based
on the exact same allegations that were already thoroughly investigated by the Palm Beach FBI
and USAO-SDFL and were presented to a grand jury in the Southern District of Florida in
connection with the Florida Investigation. The allegations underlying Counts Five and Six (and
the expanded date range for Counts One and Three) come from a single accuser—Accuser-4—
who alleges that Epstein sexually abused her from approximately 2001-2004 and that Ms.
Maxwell allegedly facilitated that abuse. (S2 Indictment¶¶ 9d, 22-27). Based on our review of
the prior statements of non-testifying witnesses, which the government only recently produced to
the defense on April 13, 2021, we know that FBI Special Agent Elizabeth Nesbitt Kuyrkendall
interviewed the person we believe to be Accuser-4 in connection with the Florida Investigation.
(Ex. C at 22:1-17).4 We also know that Special Agent Kuyrkendall presented her allegations—
the very same allegations that form the basis for Counts Five and Six—to the grand jury in the
Southern District of Florida in support of a proposed 60-count federal indictment of Jeffrey
Epstein and Sarah Kellen. (Id. at 22:17-31:6). The indictment included a conspiracy count and a
substantive count alleging a sex trafficking offense involving Accuser-4. (Id. at 28:3-15
(Accuser-4's allegations formed the basis for "Overt Acts One through 18" and Count Two of
the proposed indictment charging Epstein and Sarah Kellen with "procur[ing] [Accuser-4] to
Exhibit C is a transcript of the March 18, 2008 grand jury testimony of Special Agent Kuyrlcendall, the lead case
agent in charge of the Florida Investigation, in which she summarizes her interview of Accuser-4 and other related
evidence.
7
EFTA00103768
engage in commercial sex acts knowing that [Accuser-4] was under 18")).5 Pursuant to the
terms of the NPA, the proposed indictment was never returned, and the USAO-SDFL did not
pursue it further, once Epstein pled guilty on June 30, 2008 to Florida state law charges of
solicitation of prostitution and procurement of minors to engage in prostitution. (Ex. A, OPR
Report at i-ii).
The similarity of the allegations presented to the SDFL grand jury and those alleged in
Counts Five and Six of the S2 Indictment is striking and self-evident. The same overt acts,
including the allegations that form the basis for jurisdiction in SDNY over the crimes charged in
Counts Five and Six, were presented to both grand juries. Furthermore, the proof offered to
corroborate Accuser-4's allegations—e.g., cell phone records, FedEx records, message pad
notes, etc.—was identical. (See Ex. C at 56:21-57:10). The chart below highlights these
similarities:
S2 Indictment SDFL Grand Jury Testimony
Sexual Massages Sexual Massages
"On multiple occasions between approximately "[F]rom 2001 to 2004, [Accuser-4] provided
2001-2004, [Accuser-4] provided nude Mr. Epstein with ... over 100 massages and all
massages to Epstein at the Palm Beach but three of the massages were sexual[] in
Residence, during which Epstein engaged in nature." (Ex. C at 23:19-22).
multiple sex acts with [Accuser-4]." (S2
Indictment ¶ 9d; see also id. at ¶ 25a). The massages took place in Epstein's Palm
Beach residence and Accuser-4 was either nude
or partially nude. (Ex. C at 22:20-24:6).
Payment Payment
"Epstein or one of his employees ... paid "[Accuser-4] was paid between $200 and
[Accuser-4] hundreds of dollars in cash" for $400" for each massage. (Ex. C at 23:25-
each massage. (S2 Indictment ¶ 9d; see also id. 24:10).
5 The government previously denied Ms. Maxwell's request that it produce copies of the proposed 60-count SDFL
indictment and the related 82-page prosecution memo to the defense. To resolve any ambiguity about the charges in
the proposed SDFL indictment and the evidence underlying the counts related to Accuser-4, Ms. Maxwell requests
the Court to order the government to produce both of these documents to the defense.
8
EFTA00103769
at ¶ 25a).
Recruiting Others Recruiting Others
"Epstein ... encouraged [Accuser-4] to recruit "Mr. Epstein asked [Accuser-4] if she had any
other young females to provide sexualized friends that would be interested in performing
massages[.]" (S2 Indictment ¶ 9d; see also id. these massages ... that she could bring to
at ¶ 25b). him[.]" (Ex. Cat 26:12-16).
Gifts to Accuser-4 Gifts to Accuser-4
"On multiple occasions between approximately "Mr. Epstein provided [gifts] to [Accuser-4]....
2001 and 2004, Epstein's employees ... sent Epstein would provide her with lingerie.... He
[Accuser-4] gifts, including lingerie, from an would also send her [gifts] via FedEx packages
address in Manhattan, New York to [Accuser- to her residence." (Ex. C at 28:20-29:10)
4's] residence in Florida." (S2 Indictment ¶ 9d; (describing subpoenaed FedEx records).
see also id. at' 25c).
Scheduling Massage Appointments Scheduling Massage Appointments
"Epstein's employees ... called [Accuser-4], "[S]ometimes Sarah [Kellen] would be ... in
including from New York, to schedule New York and scheduled [Accuser-4] to come
appointments for [Accuser-4] to massage and work, but Sarah Kellen's primary role was
Epstein." (S2 Indictment ¶ 9d; see also id. at ¶ to schedule ... [Accuser-4] to come and
25d). perform the massages." (Ex. C at 25:2-6).
"For example, in or about April of 2004 and "[O]n or about April 23th, 2004, Defendant
May of 2004 another employee of Epstein's Sarah Kellen placed a telephone call to a
called [Accuser-4] to schedule such telephone used by [Accuser-4]." (Ex. C at
appointments." (S2 Indictment ¶ 25d). 17:18-19:4; see also id. at 56:24-25
(subpoenaed cell phone records "indicate
telephonic contact with Sarah Kellen")).
The one critical difference between the a legations in the S2 Indictment and the
allegations presented to the SDFL grand jury is this: Accuser-4 never implicated Ms. Maxwell in
the Florida Investigation. Ms. Maxwell is not mentioned even once in the grand jury testimony
concerning Accuser-4. Instead, the grand jury testimony reflects that Accuser-4 implicated
Epstein himself and Sarah Kellen, who was Epstein's primary assistant during the 2001-2004
timeframe charged in Counts Five and Six. According to Accuser-4, it was Kellen, not Ms.
9
EFTA00103770
Maxwell, who called Accuser-4 from New York to schedule massage appointments. (Ex. C at
17:18-22, 25:1-6). It was Epstein, not Ms. Maxwell, who encouraged Accuser-2 to recruit her
friends to give him massages. (Id. at 25:25-26:18). And it was Epstein, not Ms. Maxwell, who
provided lingerie and other gifts to Accuser-4 and sent FedEx packages to her residence. (Id. at
28:19-29:10). Furthermore, Accuser-4 alleged that Kellen led Accuser-4 upstairs to Epstein's
bedroom the first time she gave him a massage by herself (id. at 25:7-15) and that Kellen paid
Accuser-4 $500 to take nude photographs of her at the Palm Beach residence at Epstein's request
(id. at 27:1-10).
Ultimately, the proposed SDFL indictment sought to charge Epstein and Kellen, not Ms.
Maxwell, with a sex trafficking offense involving Accuser-4. (Id. at 28:11-14 (the evidence
relating to Accuser-4 formed "the basis for the allegation [in Count Two of the proposed SDFL
indictment] that Jeffrey Epstein and Sarah Kellen procured [Accuser-4] to engage in commercial
sex acts knowing that she was under 18")). This is entirely consistent with the language of the
NPA, which names Kellen, and not Ms. Maxwell, as one of the four named "potential co-
conspirators." (Ex. B at 5 of 7). In fact, the USAO-SDFL conceded that it never found "any
specific evidence against" Ms. Maxwell related to the subject of their investigation. (See Ex. A,
OPR Report at 167 (internal quotations omitted)).
Hence, it would not only be impermissible under the NPA to prosecute Ms. Maxwell for
the offenses charged in Counts Five and Six of the S2 Indictment because they were "the subject
of the Florida Investigation and "the related grand jury investigation." (Dkt. 207 at 7). It would
also be entirely unjust to base a prosecution in this District on the same offenses related to the
same accuser who never mentioned Ms. Maxwell—and instead implicated Sarah Kellen—when
she first reported the allegations that form the basis of Counts Five and Six over thirteen years
10
EFTA00103771
ago when the events were still recent.6 Accordingly, because the USAO-SDNY is bound by the
terms of the NPA as to the offenses charged in Counts Five and Six for the reasons discussed
below, Ms. Maxwell cannot be prosecuted for those counts.
B. The NPA Binds the Southern District of New York as to Counts Five and Six.
Although the Court ruled that the NPA does not bind the USAO-SDNY as to the charges
in the S 1 Indictment (Dkt. 207 at 4-6), the NPA does bind the USAO-SDNY as to the sex
trafficking offenses charged in Counts Five and Six that were added to the S2 Indictment.
United States v. Annabi, 771 F.2d 670 (1985) and its progeny, which the Court relied upon in its
earlier ruling, do not mandate a different result. In its prior ruling, the Court noted that Annabi
established "something akin to a clear statement rule" that a plea agreement binds only the U.S.
Attorney's Office for the district in which the plea is entered "unless it affirmatively appears that
the agreement contemplates a broader restriction." (Dkt. 207 at 4 (quoting Annabi, 771 F.2d at
672). That interpretive rule, however, only applies in situations where the district bringing the
second prosecution charges offenses different from the offenses resolved by the plea agreement
in the first prosecution. Annabi itself specifically noted that it was not addressing a situation
where the charges in the follow-on prosecution are "identical to the dismissed charges." Annabi,
771 F.2d at 672. Accordingly, the Court is not bound by the rule in Annabi because Counts Five
and Six are identical to the charges presented to the SDFL grand jury that were resolved by the
NPA. When examined without the overlay of Annabi, the terms and the drafting history of the
NPA indicate that the agreement should be read to preclude other districts, including the USAO-
6 Accuser-4's statements to the FBI, and any other prior statements in which she did not mention Ms. Maxwell, are
exculpatory Brady material that the government should immediately produce to the defense. (See Section VII infra).
11
EFTA00103772
SDNY, from prosecuting Epstein's "potential co-conspirators" for the offenses covered by the
NPA.'
In Annabi, the defendants were arrested at Kennedy Airport on November 23, 1982, in
possession of four kilograms of heroin and were charged in a three-count indictment in the
Eastern District of New York with (I) conspiracy to import heroin into the United States, (2) a
substantive offense of importing heroin, and (3) possession of heroin with intent to distribute. Id.
at 671. All three charges arose out of the defendants' arrest and the charged conduct was limited
to November 23, 1982. Id. The defendants agreed to plead guilty to the substantive importation
charge (Count Two) to resolve the case. Id. At the time of the plea, the prosecutor stated on the
record that "the only agreement that exists between the defendants and the Government is that at
the time of the imposition of sentence on Count Two, the Government would move to dismiss
the two open remaining counts as to each defendant." Id. Counts One and Three were dismissed
at sentencing. Id.
Approximately two-and-a-half years later, the defendants were charged in the Southern
District of New York in a multi-count indictment that included one count of conspiracy to
distribute heroin (Count One) and one count of engaging in a continuing criminal enterprise
(Count Three). Id. Both counts alleged a broader period of criminal conduct occurring from
October 1982 until March 15, 1985. Id. The defendants argued that their plea agreement with
the Eastern District of New York barred their prosecution on Counts One and Three of the
7 As argued in our initial motion, Ms. Maxwell maintains that, even if the Court applies Annaba, the NPA precludes
the USAO-SDNY from prosecuting Ms. Maxwell for any offense she allegedly committed with Epstein. (See Dkt.
142 at 18.25; Dkt. 223 at 7-13). We preserve that argument and reassert it with respect to Counts One through Six
of the S2 Indictment. However, in light of the Court's prior ruling that the NPA does not bind the USAO•SDNY as
to the charges in the SI Indictment, we argue here that the Court need not, and should not, apply Annabi to
determine whether the NPA bars the USAO-SDNY from charging the offenses in Counts Five and Six of the S2
Indictment.
12
EFTA00103773
Southern District of New York indictment because they arose out of "the same conspiratorial
agreement that underlay the charges dismissed in the Eastern District." Id. at 672.
The Second Circuit rejected this argument finding that, as a general rule, a plea
agreement only binds the prosecutor's office that entered into the agreement, unless it
"affirmatively appears that the agreement contemplates a broader restriction." Id. However, the
Court highlighted the apparent anomaly of this rule, noting that an agreement with "the
Government" to dismiss counts of an indictment "might be thought to bar the United States from
reprosecuting the dismissed charges in any judicial district unless the agreement expressly limits
the scope of the agreement to the district in which the dismissed charges are initially brought."
Id. The Court further explained that application of the "affirmative appearance" rule was
nevertheless appropriate because it had not been presented with a situation where the counts in
the second prosecution were identical to the dismissed counts. Id. Although the defendants had
argued that the charges in Counts One and Three of the SDNY indictment "result[ed] from the
same conspiratorial agreement" as the dismissed counts in the EDNY indictment, the Court
found that the SDNY charges covered conduct "extending more than two years beyond the date
of the period covered by the dismissed charges," are were therefore "not the same as the charges
that were dismissed." Id. As a result, the Court found that the default rule could be applied in
that case. Id. ("[T]he new charges are sufficiently distinct at least to warrant application of the
... rule concerning construction of plea agreements.").
Annabi, therefore, did not hold that the "affirmative appearance" rule of construction
applies in cases, like this one, where one federal district has agreed that "the United States" will
abandon certain offenses as part of a negotiated agreement, and then a second federal district
later seeks to charge those very same offenses based on the exact same conduct. By its own
13
EFTA00103774
reasoning, Annabi does not apply in these circumstances, nor do subsequent Second Circuit cases
that applied the Annabi rule. See, e.g., United States v. Salameh, 152 F.3d 88, 118-20 (2d Cir.
1998) (defendant pled guilty in EDNY to using the passport of another person to enter the United
States and later charged in SDNY with related, but distinct terrorism offenses); United States v.
Gonzalez, 93 F. App'x 268, 269-70 (2d Cir. 2004) (defendant pled guilty in the District of New
Mexico to drug conspiracy and later charged in the Western District of New York with related,
but distinct weapons possession offense). The Court should not apply them here.
Instead, the Court should follow the Third Circuit's approach in United States v. Gebbie,
294 F.3d 540 (3nd Cir. 2002), which involved a situation like this one where the charges in the
second prosecution were identical to the dismissed charges. In Gebbie, the defendants were
charged in a multi-count indictment in the Southern District of Ohio charging them with various
offenses related to a scheme to make false statements to the U.S. Postal Service. 294 F.3d at
542. As part of their plea agreement, the defendants pled guilty to misprision of a felony in
exchange for dismissal of the counts in the indictment. Id. at 543. The plea agreement further
provided that the agreement did not protect the defendants from prosecution for "other crimes or
offenses" which "the United States" discovers by independent investigation. Id. at 545-46. A
few months after entering their plea, the defendants were charged in the Western District of
Pennsylvania with "the same crimes and offenses that were at issue" in the Ohio prosecution. Id.
at 546 (emphasis in original). Because the plea agreement barred "the United States" from
prosecuting the defendants for the same crimes covered by the agreement, the question for the
Court was: "who is bound when a plea agreement refers to `the United States' or 'the
Government'?" Id. In other words, did the use of the term "the United States" in the Ohio plea
14
EFTA00103775
agreement bind the Western District of Pennsylvania and bar it from charging the same offenses
in a subsequent prosecution? The Court held that it did:
We hold, therefore, that when a United States Attorney negotiates
and contracts on behalf of "the United States" or "the
Government" in a plea agreement for specific crimes, that attorney
speaks for and binds all of his or her fellow United States
Attorneys with respect to those same crimes and those same
defendants.
Id. at 550 (emphasis added); see also United States v. Van Thournout, 100 F.3d 590, 594 (8th
Cir. 1996) ("Absent an express limitation, any promises made by an Assistant United States
Attorney in one district will bind an Assistant United States Attorney in another district.");
United States v. Harvey, 791 F.2d 294, 303 (4th Cir. 1986) ("It is the Government at large—not
just specific United States Attorneys or United States `Districts'—that is bound by plea
agreements negotiated by agents of Government.").
This case presents the exact set of circumstances carved out by Annabi and directly
addressed in Gebbie. Here, the co-conspirator provision of the NPA provides that if Epstein
abides by the terms of the agreement, "the United States" will not institute any criminal charges
"against any potential co-conspirators of Epstein," which immunizes Ms. Maxwell for the
offenses covered by the NPA. (Ex. B at 5 of 7; see also Dkt. 207 at 7). As set forth above,
Counts Five and Six of the S2 Indictment are based on the same alleged conduct involving
Accuser-4 from 2001-2004 that was presented to the SDFL grand jury and formed the basis for
several overt acts of a conspiracy charge and a substantive sex trafficking offense against Epstein
in the proposed SDFL indictment. The prosecution of those offenses was abandoned as part of
the bargain struck in the NPA, which Epstein fully performed and from which Accuser-4
benefitted. In sum, the USAO-SDNY is trying to prosecute Ms. Maxwell in Counts Five and Six
for the identical charges that were resolved by the NPA. In these circumstances, Annabi and its
15
EFTA00103776
progeny do not control.8 The Court should instead follow Gebbie and find that NPA precludes
the USAO-SDNY from charging Counts Five and Six.
This result is consistent with the terms and the drafting history of the NPA. As noted in
our previous motion, the use of the phrase "the United States" in the co-conspirator immunity
provision of the NPA stands in stark contrast to Epstein's immunity provision, which is
expressly limited to the SDFL. (Dkt. 223 at 9-10). The broad language of the co-conspirator
provision reflects Epstein's desire, which his attorneys communicated to the USAO-SDFL, that
he would be "the only one who takes the blame for what happened" (Ex. A, OPR Report at 167
(internal quotations omitted)). Furthermore, it is consistent with Epstein's goal "to resolve
globally his state and federal criminal liability," which is set forth in the factual recitals of the
NPA. (Ex. B at 2 of 7; see also Ex. D ¶ 5 (declaration of AUSA A. Marie Villafaiia noting that
Epstein "sought a global resolution of the matter"). Epstein and his counsel were clearly aware
that the investigation had extended beyond the SDFL and involved New York-based witnesses.
Indeed, we now know from discovery recently produced by the government that the government
interviewed at least three New York-based witnesses in connection with the Florida
Investigation, two of whom implicated other potential co-conspirators of Epstein. (Exs. E-G).
Hence, these provisions of the NPA reflect Epstein's desire to ensure that he would not become
embroiled in subsequent prosecutions of his "potential co-conspirators" in any other districts.
(Dkt. 223 at 11).
Moreover, this result is consistent with fundamental fairness. Allowing a federal district
to prosecute a defendant for an offense that is identical to one that was already resolved as part of
8 For the same reasons, the Court is not bound by subsequent Second Circuit decisions interpreting Annabi, which
have found that the use of phrases like "the United States" or "the government" in a plea agreement does not create
an "affirmative appearance" to bind other districts. See Salameh, 152 F.3d at 120; Gonzalez, 93 F. App'x at 270;
United States v. Brown, No. 99-1230(L), 2002 WL 34244994, at •2 (2d Cir. Apr. 26, 2002).
16
EFTA00103777
a non-prosecution agreement with another district would be a miscarriage of justice. See United
States v. Caner, 454 F.2d 426, 427-28 (4th Cir. 1972) (federally prosecuting defendant a second
time for the same charges previously resolved by a plea agreement with a different federal
district puts at stake "the honor of the government[,] public confidence in the fair administration
of justice, and the efficient administration of justice in a federal scheme of government");
Gebbie, 294 F.3d at 550 ("United States Attorneys should not be viewed as sovereigns of
autonomous fiefdoms. They represent the United States, and their promises on behalf of the
Government must bind each other absent express contractual limitations or disavowals to the
contrary."). For these reasons, the NPA bars the USAO-SDNY from prosecuting Ms. Maxwell
for the offenses charged in Counts Five and Six of the S2 Indictment. They must therefore be
dismissed.
C. Counts One and Three Must Also Be Dismissed.
Because Counts Five and Six must be dismissed, the expanded Mann Act conspiracies
charged in Counts One and Three must also be dismissed. In the S1 Indictment, the conspiracies
charged in Counts One and Three were confined to a four-year period from 1994-1997, which
the Court found was not covered by the NPA. (Dkt. 207 at 6-7). In the S2 Indictment, by
contrast, the conspiracies charged in Counts One and Three cover a much broader timeframe
from 1994-2004 because they incorporate the same conduct from 2001-2004 involving Accuser-
4 charged in Counts Five and Six. As previously discussed, the NPA bars the government from
prosecuting Ms. Maxwell for these offenses. Hence, as currently charged, the government could
offer inadmissible evidence excluded by the NPA as proof of Counts One and Three. It would
be impermissible for the jury to consider such evidence in connection with Counts One and
Three and any guilty verdict based on proof related to Accuser-4, or any other conduct covered
by the NPA, might require reversal. See United States v. Rooney, 37 F.3d 847, 855-56 (2d Cir.
17
EFTA00103778
1994) (reversal of conviction may be required due to "prejudicial spillover" in cases in which the
jury relies on inadmissible evidence related to an invalidated count to convict on the remaining
counts). Accordingly, the Court must dismiss Counts One and Three as well.
H. Prosecuting Ms. Maxwell on Counts Five and Six Would Violate Her Rights Under
the Double Jeopardy Clause.
Prosecuting Ms. Maxwell on Counts Five and Six would also violate her rights under the
Double Jeopardy Clause. The Double Jeopardy Clause provides that no person shall "be subject
for the same offence to be twice put in jeopardy of life or limb." U.S. Const., Amend. V. The
Clause protects criminal defendants against "a second prosecution for the same offense after
acquittal," "a second prosecution for the same offense after conviction," and "multiple
punishments for the same offense." United States v. Lopez, 356 F.3d 463, 467 (2d Cir. 2004)
(quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969) overruled on other grounds by
Alabama v. Smith, 490 U.S. 794 (1989)). The Supreme Court first established the principle that
the Double Jeopardy Clause protects against multiple punishments for the same offense almost
150 years ago in Ex Parte Lange, 85 U.S. (18 Wall.) 163 (1873), and it is equally important as
the protection against a successive prosecution for the same offense.
If there is anything settled in the jurisprudence of England and
America, it is that no man can be twice lawfully punished for the
same offence. And ... there has never been any doubt of (this
rule's) entire and complete protection of the party when a second
punishment is proposed in the same court, on the same facts, for
the same statutory offense.
(T)he Constitution was designed as much to prevent the
criminal from being twice punished for the same offense as from
being twice tried for it.
Pearce, 395 U.S. at 717-18 (quoting Lange, 85 U.S. (18 Wall.) at 168) (emphasis added).
Here, it is beyond dispute that Epstein was already punished for the offenses covered by
the NPA. The NPA states that, in return for an agreement not to prosecute him for the offenses
18
EFTA00103779
specified in the NPA, Epstein had to fulfill a series of terms and conditions. These included: (1)
pleading guilty in Florida state court to one count of solicitation of prostitution and one count of
solicitation of minors to engage in prostitution, (2) registering as a federal sex offender, (3)
paying for an attorney to represent his victims to sue him for personal injuries, and (4) waiving
his right to contest any damages awarded in those lawsuits up to an agreed-upon amount. (Ex. B
at 2-5 of 7). One of the government's "key objectives" in the NPA was "to preserve a federal
remedy" for Epstein's alleged victims. (Ex. D ¶ 5). Epstein fully performed these conditions
and paid over $12.5 million in settlements to multiple alleged victims. (Ex. H). Indeed, Epstein
paid $446,000 to the person we believe to be Accuser-4 and her attorneys. (Id.; Ex. I).