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USDC SDNY
DOCUMENT
UNITED STATES DISTRICT COURT ELECTRONICALLY FILED
SOUTHERN DISTRICT OF NEW YORK DOC //:
DATE FILED: 4/29/22
United States of America,
20-CR-330 (MN)
—v—
OPINION & ORDER
Ghislaine Maxwell,
Defendant.
ALISON J. NATHAN, Circuit Judge, sitting by designation:
In 2020, the Defendant Ghislaine Maxwell was indicted for her participation in a scheme
to entice, transport, and traffic underage girls for sexual abuse by and with Jeffrey Epstein, her
longtime companion. The Government at trial presented extensive witness testimony from
multiple victim witnesses and others, as well as corroborating documentary and physical
evidence. The testimony and other trial evidence established the Defendant's role in grooming
and recruiting underage girls and using the cover of massage to perpetrate sexual abuse.
Following the thirteen-day trial, the Court submitted to the jury the six counts in the
Indictment. The jury deliberated for over five days and returned a verdict of guilty on five of the
six counts. Two of these counts of conviction charged the Defendant with substantive violations
of federal statutes that target sexual abuse of minors—the Mann Act as to Count Four and the
Trafficking Victims Protection Act as to Count Six. The other three counts of conviction,
Counts One, Three, and Five, charged the Defendant with conspiring with Jeffrey Epstein to
violate those same statutes from 1994 to 2004.
Before the Court are the Defendant's post-trial motions making four alternative
arguments for vacating some or all of her five counts of conviction. First, the Defendant argues
that judgment may be imposed on only one of the three conspiracy counts (i.e., Counts One,
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Three, and Five) because they are "multiplicitous"—meaning that they all charge the same
offense—and therefore entry ofjudgment on all three counts would violate the Fifth
Amendment's Double Jeopardy Clause. Second, she requests under Rule 29 of the Federal Rules
of Criminal Procedure that the Court acquit her of all counts because there is insufficient
evidence for any rational juror to find her guilty beyond a reasonable doubt. Third, the
Defendant moves to vacate Counts One, Three, and Four under Rule 33 because, she claims, the
convictions were based on a constructive amendment of, or variance from, the Indictment. And
fourth, she requests that the Court vacate all five convictions because the Government
intentionally and prejudicially delayed its prosecution.
With one exception, the motions are denied. The Rule 29 motion challenging all counts
of conviction is denied because the jury's guilty verdicts were readily supported by the extensive
witness testimony and documentary evidence admitted at trial. Further, those counts of
conviction matched the core of criminality charged in the Indictment, presented by the
Government at trial, and on which the jury was accurately instructed. The Defendant's contrary
claim of a constructive amendment of or variance from the Indictment rests on an implausible
and speculative interpretation of a single ambiguous jury note. In addition, the Court concludes
that the Government did not intentionally delay its prosecution and, in any event, the
Defendant's ability to prepare a defense was not prejudiced by any delay.
The Court does conclude, however, that the three conspiracy counts charge the same
offense, and, accordingly, are multiplicitous. The Government concedes that Count One is
multiplicitous with Count Three but argues that Count Three and Count Five nevertheless
involve distinct conspiracies. The Court concludes that Count Five, like Counts One and Three,
charges the Defendant's participation in the same decade-long unlawful agreement with the
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Defendant's continuous coconspirator, Jeffrey Epstein. The overarching conspiracy—which, as
the Government argued and proved at trial, employed a single "playback" to groom and sexually
abuse underage girls—constitutes a single conspiracy offense with multiple victims. Because the
Double Jeopardy Clause prohibits the Court from imposing multiple punishments for the same
offense, the Court will enter judgment on Count Three alone among the conspiracy counts. This
legal conclusion in no way calls into question the factual findings made by the July. Rather, it
underscores that the jury unanimously found—three times over—that the Defendant is guilty of
conspiring with Epstein to entice, transport, and traffic underage girls for sexual abuse.
I. The Court grants the Defendant's multiplicity claim.
The Defendant was indicted on six counts: (I) conspiracy to entice individuals under the
age of seventeen to travel in interstate commerce with intent to engage in sexual activity illegal
under New York law, in violation of 18 U.S.C. § 371; (2) enticement of individuals under the
age of seventeen to travel in interstate commerce with intent to engage in sexual activity illegal
under New York law, and aiding and abetting the same, in violation of 18 U.S.C. §§ 2422, 2; (3)
conspiracy to transport individuals under the age of seventeen to travel in interstate commerce
with intent to engage in sexual activity illegal under New York law, in violation of 18 U.S.C.
§ 371; (4) transportation of an individual under the age of seventeen with intent to engage in
sexual activity illegal under New York law, and aiding and abetting the same, in violation of 18
U.S.C. §§ 2423(a), 2; (5) conspiracy to commit sex trafficking of individuals under the age of
eighteen, in violation of 18 U.S.C. § 371; and (6) sex trafficking of an individual under the age of
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eighteen, and aiding and abetting the same, in violation of 18 U.S.C. §§ 1591, 2. S2 Indictment,
Dkt. No. 187.'
In two prior pretrial motions, the Defendant requested that the Court dismiss two of the
three conspiracy counts—that is, Counts One, Three, and Five—as multiplicitous, given that all
three were premised on the Defendant's participation in a single criminal conspiracy with
Epstein. To punish her for all three counts, she argued, would violate the Double Jeopardy
Clause. In opinions dated April 16, 2021, and August 13, 2021, the Court denied those motions
as premature because the Double Jeopardy Clause would prohibit only multiple punishments for
the same offense, but not indictments for the same offense. United States v. Maxwell, 534 F.
Supp. 3d 299, 322 (S.D.N.Y. 2021) (citing United States v. Josephberg, 459 F.3d 350, 355 (2d
Cir. 2006)); United States v. Maxwell, No. 20-CR-330 (AJN), 2021 WL 3591801, at *5
(S.D.N.Y. Aug. 13, 2021).
Because the jury convicted the Defendant on all three conspiracy counts, the Defendant
now requests that the Court impose judgment on only one of these counts. Maxwell Br. at 19,
Dkt. No. 600. The Government concedes that Counts One and Three are multiplicitous and
agrees that the Court should not impose judgment on Count One, but it argues that Counts Three
and Five are distinct offenses premised on distinct criminal conspiracies, and so the Court should
impose judgment on both. Gov. Br. at 24, Dkt. No. 621.
On consent of both parties, the Court will not impose judgment on Count One because it
is multiplicitous. For the reasons that follow, the Court further grants the Defendant's motion to
also not enter judgment on Count Count Five because it is also multiplicitous with Count Three.
I The original and S2 Indictments also included two counts of perjury. See S2 IndictmentII 28-31. The Court
granted the Defendant's motion to sever those counts for a separate trial. United States v. Maxwell, 534 F. Supp. 3d
299, 321 (S.D.N.Y. 2021).
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A. Applicable law
The Double Jeopardy Clause of the Fifth Amendment guarantees 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.
That guarantee "serves principally as a restraint on courts and prosecutors," ensuring that a court
does not "exceed its legislative authorization by imposing multiple punishments for the same
offense." Brown v. Ohio, 432 U.S. 161, 165 (1977); see also Morris v. Reynolds, 264 F.3d 38,
48 (2d Cir. 2001). An indictment is multiplicitous, and therefore implicates double jeopardy,
"when it charges a single offense as an offense multiple times, in separate counts, when, in law
and fact, only one crime has been committed." Maxwell, 534 F. Supp. 3d at 322 (quoting United
States v. Chacko, 169 F.3d 140, 145 (2d Cir. 1999)). "A claim of multiplicity cannot succeed,
however, 'unless the charged offenses are the same in fact and in law.'" United States v. Jones,
482 F.3d 60, 72 (2d Cir. 2006) (quoting United States v. Estrada, 320 F.3d 173, 180 (2d Cir.
2003)).
If the two offenses at issue are both conspiracies charged under the same statute, then the
multiplicity inquiry turns on whether the two conspiracies are the same "in fact," meaning they
involve the same agreement. United States v. Araujo, No. 17-CR-438 (VEC), 2018 WL
3222527, at *3 (S.D.N.Y. July 2, 2018) (citing United States v. Ansaldi, 372 F.3d 118, 124-25
(2d Cir. 2004)); United States v. Gaskin, 364 F.3d 438, 454 (2d Cir. 2004) ("[T]o survive a
double jeopardy attack, the government would have to show that the two schemes involved
'distinct' agreements."). Yet "whether the evidence shows a single conspiracy or more than one
conspiracy is often not determinable as a matter of law or subject to bright-line formulations."
Jones, 482 F.3d at 72. Rather, the parties agree that the Court's inquiry is guided by the Second
Circuit's Kmfant factors. See, e.g., United States v. Diallo, 507 F. App'x 89, 91 (2d Cir. 2013)
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(summary order) (citing United States v. Korfant, 771 F.2d 660, 662 (2d Cir. 1985) (per
curiam)); United States v. Villa, 744 F. App'x 716, 720 (2d Cir. 2018) (summary order). Those
factors include:
(1) the criminal offenses charged in successive indictments; (2) the overlap of
participants; (3) the overlap of time; (4) similarity of operation; (5) the existence
of common overt acts; (6) the geographic scope of the alleged conspiracies or
location where overt acts occurred; (7) common objectives; and (8) the degree of
interdependence between alleged distinct conspiracies.
United States v. Macchia, 35 F.3d 662, 667 (2d Cir. 1994) (quoting Korfant, 771 F.2d at 662). In
applying the Korfant factors, "no dominant factor or single touchstone" determines whether two
allegedly distinct conspiracies "'appear in fact and in law the same." Id. at 668 (quoting United
States v. Reiter, 848 F.2d 336, 340 (2d Cir. 1988)). Moreover, "the Korfant list is not
exhaustive, and every case must be assessed on its own terms . . . based on the entire record."
United States v. Maslin, 356 F.3d 191, 196 (2d Cir. 2004).
In assessing the evidence, the Second Circuit applies a burden-shifting framework. The
defendant carries the initial burden of making a non-frivolous showing that the two counts in fact
charge only one conspiracy. If met, the burden then shifts to the Government to show, "by a
preponderance of the evidence, that there are in fact two distinct conspiracies and that the
defendant is not being placed in jeopardy twice for the same crime." United States v. Lopez, 356
F.3d 463, 467 (2d Cir. 2004) (per curiam) (citing United States v. DelVecchio, 800 F.2d 21, 22
(2d Cir. 1986)); see also United States v. Mallah, 503 F.2d 971, 986 (2d Cir. 1974) (applying this
burden-shifting approach post-conviction); United States v. Hernandez, No. 09-CR-625 (HB),
2009 WL 3169226, at *9 (S.D.N.Y. Oct. 1, 2009).
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B. Analysis
A further summary of the two counts at issue is required. As briefly outlined above,
Count Three of the Indictment charged the Defendant under 18 U.S.C. § 371, the general federal
conspiracy statute, with conspiring to violate 18 U.S.C. § 2423(a) (the Mann Act), by
transporting minors across state lines with the intent to engage in sexual activity criminalized by
state law. S2 Indictment ¶¶ 16-18. In this case, the relevant state offense was New York Penal
Law Section 130.55, which criminalizes sexual contact with an individual known to be under the
age of seventeen. Trial Tr. 3034-35. The Count Three conspiracy spanned from 1994 to 2004.
S2 Indictment 1 17. As the Government explained in its summation, the jury could convict the
Defendant under Count Three based on evidence related ta
three victims who testified at trial. Trial Tr. at 2895.2
Count Five of the Indictment also charged the Defendant under 18 U.S.C. § 371, but for
conspiring to violate 18 U.S.C. §§ 1591(a) & (b) (the Trafficking Victims Protection Act), by
trafficking individuals under the age of eighteen for commercial sex acts that affect interstate
commerce. S2 Indictment 9¶ 22-24. Count Five's conspiracy spanned from 2001 to 2004. Id.
123. The Government explained to the jury that it could convict the Defendant on Count Five
based on evidence related to Trial Tr. at 2896.
The Defendant primarily contends that Count Five is a subset of, is subsumed in, or is
otherwise too similar to Count Three under the Korfant factors. The Court agrees. Although
some Korfant factors favor the Government, the weight of the factors-supplemented by a
review of the Government's case presented at trial—demonstrates that the Government has not
2The Court permitted certain victim witnesses to testify using a pseudonym or first name. See Nov. I, 2021 Tr. at
6-7.
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met its burden of proving by a preponderance of the evidence that the counts are not
multiplicitous.
The offenses charged and common objectives. Both Counts Three and Five are charged
under the same statute, 18 U.S.C. § 371, for conspiracy to commit an offense against the United
States. But going beyond this "general level" of similarity, the statutory objectives of the two
counts differ. Macchia, 35 F.3d at 669. Count Three is a conspiracy to violate § 2423(a) and
Count Five a conspiracy to violate § 1591. These differing statutory objectives entail legal
differences. Count Three, for example, charges unlawful sexual activity (defined as sexual
touching of a minor) while Count Five charges commercial sexual activity with a minor. And
each provision defines "minor" differently: under seventeen years old for Count Three but under
eighteen years old for Count Five. Further, Count Three requires an agreement with intent to
transport across state lines, while Count Five's agreement requires only intent of sexual activity
that affects interstate commerce. These differences push the first Korfant factor in the
Government's favor. See Estrada, 320 F.3d at 182 (distinguishing between a conspiracy to
distribute cocaine and one to distribute crack); United States v. Villa, No. 3:12-CR-40 (JBA),
2014 WL 252013, at *4 (D. Conn. Jan. 22, 2014), aff'd, 744 F. App'x 716 (2d Cir. 2018)
(summary order) (distinguishing between a § 371 conspiracy to "commit theft from an interstate
shipment and to transport stolen property across state lines" and one to "sell stolen property").
The Government, however, ens in suggesting that this factor alone is "fatal" to the
Defendant's multiplicity claim. Gov. Br. at 29. To the contrary, no single Koifant factor is
dominant or dispositive. Macchia, 35 F.3d at 668. And courts in this district have found two
conspiracy counts to be the same offense even when they have different statutory objectives
because both counts can arise from the same agreement. E.g., Hernandez, 2009 WL 3169226, at
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*11 (concluding that conspiracies to defraud the United States and to commit mail and wire
fraud were the same conspiracy as earlier conspiracy to use or transfer false IDs). After all, "[a]
single agreement to commit several crimes constitutes one conspiracy." United States v. Broce,
488 U.S. 563, 570-71 (1989). The Government implicitly conceded this point of law when it
agreed that Counts One and Three were multiplicitous. Count One charges a conspiracy to
entice minors to travel across state lines in violation of 18 U.S.C. § 2422 while Count Three
charges a conspiracy to transport minors across state lines in violation of 18 U.S.C. § 2423(a).
Despite distinct statutory predicates for these two § 371 conspiracies, the Government did not
contest that they were the same offense. Though Count Five is unquestionably less similar to
Count Three than is Count One, the difference in statutory predicates does not end the matter. It
is well established that a single conspiracy can contain multiple objectives, particularly if the
objectives share important similarities, as they do here. United States v. Salameh, 152 F.3d 88,
148 (2d Cir. 1998) (citing United States v. 4/Irani, 968 F.2d 1512, 1518 (2d Cir. 1992)).
Overlap ofparticipants. The participants in the two conspiracies in Counts Three and
Five substantially overlap with one another. Of course, the defendant will always overlap
between two allegedly multiplicitous conspiracies, so their participation in both conspiracies has
negligible significance. Villa, 2014 WL 252013, at *5. More importantly here, Epstein was the
Defendant's primary coconspirator in both conspiracies, and the Government argued that in both
conspiracies the Defendant played the same role of acquiring underage girls for Epstein to
sexually abuse. They were, the Government explained, "partners in crime" over the decade
alleged in the Indictment. E.g., Trial Tr. at 34, 2842, 2885; see also id. at 41 ("For a decade, the
defendant played an essential role in this scheme."). This overlap in key participants, and in core
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roles played by those participants, significantly favors the Defendant as to the second Korfant
factor. See Macchia, 35 F.3d at 669; Hernandez, 2009 WL 3169226, at *II.
The Government responds that the Count Five conspiracy included who
was not involved in Count Three. Yet received far less attention than other conspirators
in the Government's case, being mentioned only briefly in the Government's opening statement
and closing arguments. E.g., Trial Tr. at 2876 (noting, "and sometimes would call,
too"). Conspiracies often change membership without forming a new, distinct conspiracy,
particularly if key members of the conspiracy remain over the course of a decade. See United
States v. Eppolito, 543 F.3d 25, 48 (2d Cir. 2008). participation beginning in 2001
therefore does not shift the import of the second Korfant factor.
Overlap of time. The time periods of the two counts overlap completely. Namely, Count
Five's period of 2001 to 2004 is "wholly within the time frame" of Count Three from 1994 to
2004, which substantially favors the Defendant on this Korfant factor. United States v.
Calderone, 982 F.2d 42, 47 (2d Cir. 1992). The Government's attempt to minimize this factor
by noting that most overt acts for Count Three occurred in the 1990s is simply not reflected in
this circuit's case law. See, e.g., Macchia, 35 F.3d at 669 (focusing on the overlap in time frame
alleged in the indictment). The overlap in time here raises the inference that one conspiracy
wholly encompasses the other, and that inference tips in the Defendant's favor. See Araujo,
2018 WL 3222527, at *6.
Similarity of operations. Counts Three and Five involve significant similarities in
operations. The methods by which the Defendant groomed and facilitated the sexual abuse of
minor victims was a central focus of both parties' cases at trial. The Government called as an
expert witness Dr. Lisa Rocchio, who identified the typical steps in sexual abusers' grooming of
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minors for sexual abuse. Trial Tr. at 714-19. Applying that expert testimony to the witnesses'
testimony, the Government argued that the Defendant's conduct as to each victim followed a
uniform "playbook." E.g., id. at 2184 ("She ran the same playbook again and again and again.
She manipulated her victims and she groomed them for sexual abuse."), 2853 ("The patterns you
saw throughout this trial, the playbook that Maxwell ran for years, is just one of the many ways
that you know that Maxwell is guilty."). And the Government emphasized the many similarities
in the Defendant's conduct as recounted by all four witnesses. Id. at 2848 ("The similarities
between what happened to e incredibly powerful
evidence of the defendant's guilt. So I want to talk to you about the playbook that Maxwell ran
again and again and again."), 2901 ("Four women have testified at this trial about Maxwell.
They all describe the same woman, the same playbook."). Carolyn was the only witness who
testified regarding Count Five. The Government argued that her testimony "was corroborated by
what Annie an old [the jury] about Maxwell and how she operated for years."
Id. at 2880; see also id. at 2895-96 ("Maxwell groomed both as part of a
broader agreement with Epstein to provide him with underage girls for abuse."). The
Government, in short, argued that the Defendant engaged in substantially the same operations for
a decade as to all victims under both Counts Three and Five.
The Government responds that while the Defendant and Epstein continuously conspired
to sexually abuse minor victims, their conduct beginning in 2001 evolved from developing one-
on-one relationships with their victims to include a "pyramid scheme of abuse," by which they
acquired underage girls by paying them for so-called "massage" appointments. Gov. Br. at 32
(quoting Trial Tr. at 40). To be sure, the Government in both its opening statement and its
closing arguments explained that the Defendant and Epstein's abuse "evolved over the course of
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a decade," having both the "earlier phase" and the later "pyramid scheme." Trial Tr. at 40; see
also, e.g., id. at 2886 (describing 2001 as "the beginning of the pyramid scheme of abuse"). But
a single conspiracy can enter "two or more phases or spheres of operation" without creating a
discontinuity in the underlying unlawful agreement, particularly if the same people are serving
the same roles in each phase. United States v. Pena, 846 F. App'x 49, 51 (2d Cir. 2021)
(summary order) (quoting United States v. Berger, 224 F.3d 107, 114-15 (2d Cir. 2000)); see
also United States v. Maldonado-Rivera, 922 F.2d 934, 963 (2d Cir. 1990). Notably, the
Government, after distinguishing between earlier and later phases in the pattern of abuse,
immediately emphasized that "[fJor a decade, the defendant played an essential role in this
scheme," blurring any difference between the two phases. Trial Tr. at 41.
Moreover, though these phases did involve some differing means to acquire minor
victims, the differences presented at trial were not as great as the Government suggests in its
brief. As to both counts, both before and after 2001, the Government emphasized that massage
was a primary means by which the Defendant and Epstein normalized bodily contact and also the
means by which the Defendant and Epstein commonly instigated instances of sexual abuse.
Compare id. at 40 ("You will learn that in the 1990s, they used the cover of mentoring young
girls ... to introduce massage . . . and that you will learn that they used these so called massages
as a way to sexually abuse the victims."), with id. at 41 ("Under this pyramid scheme of abuse,
the defendant could just call girls to schedule massage appointments and hand them cash
afterwards . .. ."); e.g., id. at 35 ("You will learn that the cover of massage was the primary way
the defendant and Epstein lured girls into sexual abuse."), 2852 ("Again and again throughout
this trial, you heard about how these girls were asked to perform sexualized massages on Jeffrey
Epstein.").
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Further, in both counts, the witnesses testified that they received financial gifts and
payments as a means by which the Defendant and Epstein acquired their victims' trust and
extended the period of sexual abuse. E.g., id. at 302 (Jane testified that she was given money
"[a]lmost every visit" and that Epstein paid for things like voice lessons and clothes). The
Government emphasized such financial gifts as one step in the Defendant's playbook of
grooming. E.g., id. at 2851 ("Then came the next step in the playbook: Making these girls feel
special, giving them gifts, making friends, giving them money, promising to help with their
futures, promises like sending Annie on a trip to Thailand or helping to pay for Jane's voice
lessons and tuition."), 2890 ("[Jane] told you that Epstein gave her money and gifts and paid for
school. That money wasn't free .... That is inducement, that is enticement, that is coercion.").
The financial quid pro quo may have become more explicit beginning in 2001, but that shift in
approach is not nearly so dramatic as to suggest that the Defendant and Epstein at that time
entered "a wholly new agreement" with a new "conspiratorial objective." Haji v. Miller, 584 F.
Supp. 2d 498, 519 (E.D.N.Y. 2008). The similarity-of-operations factor therefore favors the
Defendant.
Overlap ofgeographic scope. There is some, albeit incomplete, geographic overlap
between the two counts. Count Three focused on travel to New York because the ultimate
objective of the conspiracy was to transport minors to New York to engage in criminal sexual
activity in violation of New York law. Count Five, by contrast, focused on Epstein's residence
in Florida, wher were paid to give Epstein sexualized massages.
Nevertheless, some geographic overlap between the two counts remained. All four witnesses
testified about sexual conduct by the Defendant or Epstein in locations other than New York,
whether Florida, New Mexico, or London. The Court admitted such testimony concerning
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sexual conduct outside of New York as relevant to Count Three because it tended to establish the
existence of a conspiracy and of the Defendant and Epstein's intent to abuse the victims in New
York. In sum, the same locations—particularly Florida—were part of the Government's case for
both counts. And over time, a conspiracy's "shifting emphasis in the location of operations
do[es] not necessarily require a finding of more than one conspiracy." Eppolito, 543 F.3d at 48
(quoting Jones, 482 F.3d at 72). This factor therefore favors the Defendant or, at least, is neutral.
Common overt acts. The Government correctly notes that the overt acts provided to the
jury for Counts Three and Five are distinct. See Jury Charge, Dkt. No. 565 at 49-50. This factor
therefore tips toward the Government—but only slightly. A number of the overt acts listed for
Count Three could have been prosecuted under Count Five but for the fact that 18 U.S.C. § 1591,
the Trafficking Victims Protection Act, was not enacted until 2000. See Gov. Br. at 28. That
some identical overt acts were not listed for both conspiracies is therefore more a function of
legal timing than an indication of two distinct conspiracies. Cf. Hernandez, 2009 WL 3169226,
at *12.
Interdependence. Counts Three and Five are not interdependent because the success or
failure of one conspiracy is independent of the success or failure of the other. See Macchia, 35
F.3d at 671. In other words, the success of the Defendant and Epstein's scheme to abuse Carolyn
from 2001 to 2004 was not made more or less likely by the prior success or failure to abuse Jane,
Annie, or any other underage girl. This factor, however, makes little difference in the final
analysis if "what was ultimately proven was one common conspiracy." Maslin, 356 F.3d at 197.
The Government's theory at trial. The Second Circuit has instructed district courts to
consider not only the enumerated Kotfant factors but to consider the entire record. See id. at
196; United States v. Olmeda, 461 F.3d 271, 282 (2d Cir. 2006). In Masan, the Second Circuit
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first explained that applying the Korfant factors led to the conclusion that successive
prosecutions for conspiracies to distribute marijuana were barred by double jeopardy, but then
continued, stating that "several additional factors ... not directly addressed in Kolfant ... further
point toward a finding of double jeopardy," namely, "the fact that the Government, in its opening
and closing arguments, presented both cases to the jury as broad conspiracies of an essentially
identical nature." 356 F.3d at 197. The same is true here. As explained above, the
Government's opening statement and closing arguments presented a theory of a singular
conspiracy, highlighting: The degree of similarity between each victim witness's experience
over a decade; the common "playbook" that the Defendant ran "over and over and over again,"
Trial Tr. at 2848; and the tight partnership between the Defendant and Epstein. And each of
those features was accompanied by references to a singular "scheme" to abuse all victim
witnesses. Id. at 36, 2843, 2853. At bottom, the case presented to the jury by the Government
was of a single decade-long conspiracy by the Defendant and Epstein to sexually abuse underage
girls. Having pursued such a broad and encompassing conspiracy, the Government cannot now
claim, and cannot carry its burden of proving by a preponderance of the evidence, that Count
Five was legally and factually distinct. See Maslin, 356 F.3d at 197.
Because Count Three and Count Five are multiplicitous, the proper remedy is to enter
judgment on only one of the counts. See Josephberg, 459 F.3d at 355 ("If the jury convicts on
more than one multiplicitous count, the defendant's right not to suffer multiple punishments for
the same offense will be protected by having the court enter judgment on only one of the
multiplicitous counts." (citing Ball v. United States, 470 U.S. 856, 865 (1985))). Because Count
Five is factually subsumed by Count Three, the Court will impose judgment only on Count
Three. The Court emphasizes, however, that finding Count Five to be multiplicitous "does not
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overturn any of the factual findings made by the jury" —it means only that, "as a matter of law,
the jury found the same thing twice." Ansaldi, 372 F.3d at 125. Or, in this case, three times.
II. The Court denies the Defendant's Rule 29 motion.
The Defendant argues there was insufficient evidence to support any of her five counts of
conviction, and, therefore, the Court should enter a judgment of acquittal as to all counts under
Rule 29 of the Federal Rules of Criminal Procedure. Rule 29 provides, in relevant part, that
"[a]fter the government closes its evidence or after the close of all the evidence, the court on the
defendant's motion must enter a judgment of acquittal of any offense for which the evidence is
insufficient to sustain a conviction." Fed. R. Crim. P. 29(a); United States v. Pugh, 945 F.3d 9,
19 (2d Cir. 2019). "[T]he critical inquiry on review of the sufficiency of the evidence to support
a criminal conviction must be . . . to determine whether the record evidence could reasonably
support a finding of guilt beyond a reasonable doubt." Jackson v. Viiginia, 443 U.S. 307, 318
(1979). "The court must make that determination with the evidence against a particular
defendant, viewed in the light most favorable to the government, and with all reasonable
inferences resolved in favor of the government." Pugh, 945 F.3d at 19 (cleaned up) (quoting
Eppolito, 543 F.3d at 45). Under this inquiry, "the relevant question is whether, after viewing
the evidence in the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319
(citing Johnson v. Louisiana, 406 U.S. 356, 362 (1972)); United States v. Zhong, 26 F.4th 536,
560 (2d Cir. 2022).
At the close of the Government's case, the Defendant made her Rule 29 application "with
respect to every count in the S2 indictment," but "confine[d] [her] comments to address
specifically Counts One and Two." Trial Tr. at 2266. The Court denied the motion. Id. at 2274.
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Following the close of the defense case, the Defendant renewed her previous Rule 29
application. Id. at 2736.
In her brief, the Defendant reiterates her request that the Court "enter a judgment of
acquittal as to all counts." Maxwell Br. at 30. The Court has deemed Counts One and Five
multiplicitous, see supra Part I, and therefore the Court will not enter judgment on those counts.
And at trial, the jury found the Defendant not guilty on Count Two. Thus, the Court will
consider the sufficiency of the evidence for the remaining counts: Three, Four, and Six. After
considering the arguments and evidence, the Court denies the Defendant's Rule 29 motion.
The Court first notes that the Defendant has not provided substantive argument on the
sufficiency of the evidence—in either the oral application or the post-conviction briefing—for
Counts Three, Four, or Six. Instead, for these remaining counts, the Defendant simply asserts
that the Court should "enter a judgment of acquittal as to all counts under Rule 29 . . because
the government failed to prove each element of the charges beyond a reasonable doubt."
Maxwell Reply at 18, Dkt. No. 647; Maxwell Br. at 30. The Court disagrees.
The Court first considers the substantive counts. Count Four charged the Defendant with
the substantive count of transportation of an individual under the age of seventeen with intent to
engage in sexual activity in violation of New York law. This count related only to Jane during
the period 1994 to 1997. The Government was required to establish the following elements
beyond a reasonable doubt: (1) that the Defendant knowingly transported an individual in
interstate commerce, as alleged in the Indictment; (2) that the Defendant transported the
individual with the intent that the individual would engage in sexual activity for which any
person can be charged with a criminal offense under New York law, as alleged in the Indictment;
and (3) that the Defendant knew that the individual was less than seventeen years old at the time
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of the acts alleged in Count Four; or that the Defendant aided and abetted the same. Jury Charge
at 26,37.
The Court concludes that there was sufficient evidence for the jury to find the Defendant
guilty of Count Four beyond a reasonable doubt. Jane testified that Epstein first engaged in
sexual activity with her in Palm Beach when she was fourteen years old. Trial Tr. at 305. She
then began traveling from Palm Beach to New York with the Defendant and Epstein at that same
age. Id. at 315-16. Jane explained that she traveled on commercial flights and Epstein's private
jet. Id. at 316. She testified that the Defendant also traveled on some of these flights, and that
the Defendant assisted her in making her travel arrangements to New York. Id. at 316-17. On
one occasion when she was fifteen, Jane recounted, she had trouble getting on a commercial
flight because she did not have proper identification. However, the Defendant "made it happen"
for her by making a call and helping her get on the flight. Id. at 323-24. Jane also testified that
the Defendant was present on some occasions when Epstein sexually abused Jane in New York
when she was under the age of seventeen. Id. at 320. The Court concludes that this evidence,
taken together, was sufficient for the jury to find beyond a reasonable doubt that the Defendant
knowingly transported Jane to New York with the intent to engage in sexual activity illegal
under New York law, or at minimum, aided and abetted Epstein in doing so.
Next, the Court concludes that there was sufficient evidence for the jury to find the
Defendant guilty of Count Six. Count Six charged the Defendant with the substantive count of
sex trafficking of an individual under the age of eighteen. The Government was required to
prove beyond a reasonable doubt that: (1) the Defendant knowingly recruited, enticed, harbored,
transported, provided, or obtained a person; (2) the Defendant knew that the person was under
the age of eighteen; (3) the Defendant knew the person would be caused to engage in a
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commercial sex act; and (4) the Defendant's acts were in or affecting interstate commerce; or
that the Defendant aided and abetted the same. Jury Charge at 32, 37. Count Six applied solely
to Carolyn during the period 2001 to 2004. Id. at 32.
Carolyn testified that when she was under the age of eighteen, the Defendant would call
her to set up appointments for Carolyn to perform sexualized massages on Epstein. Trial Tr.
1527, 1530. Carolyn explained the sexual activities that occurred during the massages. Id. at
1544-47. Carolyn testified that the Defendant saw her naked in the massage room and continued
to call Carolyn to schedule appointments with Epstein. Id. at 1538. She recalled a specific
incident when she was fourteen in which she was naked in the massage room and the Defendant
touched her breasts and commented that Carolyn "had a great body for Mr. Epstein and his
friends." Id. at 1536-38. Carolyn testified that the Defendant knew that she was under the age
of eighteen and continued to call her to schedule appointments with Epstein after learning that
fact. Id. at 1535. Carolyn further testified that she received money in exchange for performing
sexualized massages on Epstein. E.g., id. 1523. She recalled that while money was often left on
the sink outside of the massage room, the Defendant paid her directly after massages on one or
two occasions. Id. at 1540-41. Carolyn's testimony was corroborated by
boyfriend at the time, and physical evidence including phone message pads. This evidence was
plainly sufficient for the jury to find beyond a reasonable doubt that the Defendant committed
sex trafficking of an individual under eighteen, or aided and abetted Epstein in doing so.3
3 If the Court were to conclude that Count Five is not multiplicitous, it would deny the Defendant's Rule 29 motion
as to Count Five. Count Five charged the Defendant with participating in a conspiracy to commit sex trafficking of
individuals under the age of eighteen from about 2001 to 2004. The evidence that supports the Defendant's
conviction of Count Six, the substantive count, also t Five conspiracy conviction. Additionally,
Juan Alessi testified that the Defendant approached n a parking lot and that he then saw her at
Epstein's Palm Beach residence later that day. Tria ocumentary evidence, including flight records,
established that Virginia was under the age of eighteen when she met the Defendant and Epstein. See, e.g., id. at
1855 (December 2000 flight record including Epstein, the Defendant, and Virginia); see also GX-I4 (birth
certificate). Carolyn testified that Virginia recruited her and that Virginia performed sexualized massages on
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Finally, Count Three charged the Defendant with conspiracy to transport individuals
under the age of seventeen to travel in interstate commerce with intent to engage in illegal sexual
activity in violation of New York law. The Government was required to prove beyond a
reasonable doubt: (1) that two or more persons entered into the unlawful agreement charged; (2)
the Defendant knowingly and willfully became a member of that conspiracy; (3) one of the
members of the conspiracy knowingly committed at least one overt act; and (4) the overt act that
the jury found to have been committed was committed in furtherance of that conspiracy. Jury
Charge at 41.
The Court concludes that the trial evidence supported a finding of guilt beyond a
reasonable doubt for each element of Count Three. The Government presented evidence that
could lead a reasonable juror to conclude that the Defendant worked with Epstein between 1994
and 2004 to groom minor victims in an effort to transport them to New York to engage in sexual
activity illegal under New York law. As noted above,■testified in detail about her travel to
New York with the Defendant and Epstein where she was sexually abused. Trial Tr. at 319-20.
Jane also testified about the steps taken by the Defendant and Epstein to make her feel
comfortable before they began engaging in sexual activity with her and inviting her to travel. Id.
299-303; see also id. at 348 .testifying that their behavior toward her made her "feel
special").
Other witnesses testified to similar conduct. Annie testified that after she met Epstein in
New York, she was invited to travel with the Defendant and Epstein to New Mexico when she
was sixteen. Id. at 2068-69,2075-77. She testified that on this trip, the Defendant and Epstein
took her shopping and to the movies. Id. at 2080-81. She also testified that the Defendant
Epstein in exchange for money. Trial Tr. 1518-24. The Court concludes that the evidence related to Carolyn and
Virginia was sufficient for the jury to convict the Defendant on Count Five.
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encouraged her to massage Epstein's feet, and that the Defendant then gave her a massage during
which the Defendant touched Annie's breasts. Id. at 2083-86. As noted above, Carolyn testified
that the Defendant paid her for performing sexualized massages on Epstein. She also testified
that Epstein and the Defendant asked her about her life and family and discussed sexual topics
with her. Id. at 1533-36. Epstein then invited her to travel generally, and the Defendant invited
her to travel to Epstein's private island in the Caribbean. Id. at 1535,1540. A reasonable juror
could have concluded that the Defendant's and Epstein's actions, including their efforts to
normalize sexual conduct and invitations for underage girls to travel to New Mexico and the
Caribbean, were in furtherance of the conspiracy's goal of transporting minors to New York for
the purpose of engaging in sexual activity illegal under New York law. Finally, although the
jury was instructed that it could not convict the Defendant solely on the basis of
testimony, her testimony corroborated the testimony of other witnesses as to the Defendant's
knowledge and role in the conspiracy. Id. at 1177-90. The Court concludes that this evidence
was sufficient for a reasonable jury to convict the Defendant for conspiring to transport
individuals in interstate commerce with intent to engage in sexual activity illegal under New
York law.
Accordingly, the Court denies the Defendant's Rule 29 motion for a judgment of
acquittal.
III. The Court denies the Defendant's motion claiming a construct iv e amendment or
prejudicial variance.
The Defendant also seeks to vacate her convictions as to Counts One, Three, and Four
(the Mann Act counts) pursuant to Federal Rule of Criminal Procedure 33. She contends that the
jury convicted her of intending that Jane engage in sexual activity in New Mexico, rather than
New York, thus resulting in a constructive amendment of the Indictment, or in the alternative, a
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prejudicial variance. For the following reasons, the Court disagrees and denies the Defendant's
motion on this basis.
A. Applicable Law
Under the Fifth Amendment's Grand Jury Clause, "a defendant has the right to be tried
only on charges contained in an indictment returned by a grand jury." United States v. Wozniak,
126 F.3d 105, 109 (2d Cir. 1997). "[W]hen the charge upon which the defendant is tried differs
significantly from the charge upon which the grand jury voted," a constructive amendment
occurs and reversal is required. United States v. Khalupsky, 5 F.4th 279, 293 (2d Cir. 2021).
"To prevail on a constructive amendment claim, a
USDC SDNY
DOCUMENT
UNITED STATES DISTRICT COURT ELECTRONICALLY FILED
SOUTHERN DISTRICT OF NEW YORK DOC //:
DATE FILED: 4/29/22
United States of America,
20-CR-330 (MN)
—v—
OPINION & ORDER
Ghislaine Maxwell,
Defendant.
ALISON J. NATHAN, Circuit Judge, sitting by designation:
In 2020, the Defendant Ghislaine Maxwell was indicted for her participation in a scheme
to entice, transport, and traffic underage girls for sexual abuse by and with Jeffrey Epstein, her
longtime companion. The Government at trial presented extensive witness testimony from
multiple victim witnesses and others, as well as corroborating documentary and physical
evidence. The testimony and other trial evidence established the Defendant's role in grooming
and recruiting underage girls and using the cover of massage to perpetrate sexual abuse.
Following the thirteen-day trial, the Court submitted to the jury the six counts in the
Indictment. The jury deliberated for over five days and returned a verdict of guilty on five of the
six counts. Two of these counts of conviction charged the Defendant with substantive violations
of federal statutes that target sexual abuse of minors—the Mann Act as to Count Four and the
Trafficking Victims Protection Act as to Count Six. The other three counts of conviction,
Counts One, Three, and Five, charged the Defendant with conspiring with Jeffrey Epstein to
violate those same statutes from 1994 to 2004.
Before the Court are the Defendant's post-trial motions making four alternative
arguments for vacating some or all of her five counts of conviction. First, the Defendant argues
that judgment may be imposed on only one of the three conspiracy counts (i.e., Counts One,
EFTA00156400
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Three, and Five) because they are "multiplicitous"—meaning that they all charge the same
offense—and therefore entry ofjudgment on all three counts would violate the Fifth
Amendment's Double Jeopardy Clause. Second, she requests under Rule 29 of the Federal Rules
of Criminal Procedure that the Court acquit her of all counts because there is insufficient
evidence for any rational juror to find her guilty beyond a reasonable doubt. Third, the
Defendant moves to vacate Counts One, Three, and Four under Rule 33 because, she claims, the
convictions were based on a constructive amendment of, or variance from, the Indictment. And
fourth, she requests that the Court vacate all five convictions because the Government
intentionally and prejudicially delayed its prosecution.
With one exception, the motions are denied. The Rule 29 motion challenging all counts
of conviction is denied because the jury's guilty verdicts were readily supported by the extensive
witness testimony and documentary evidence admitted at trial. Further, those counts of
conviction matched the core of criminality charged in the Indictment, presented by the
Government at trial, and on which the jury was accurately instructed. The Defendant's contrary
claim of a constructive amendment of or variance from the Indictment rests on an implausible
and speculative interpretation of a single ambiguous jury note. In addition, the Court concludes
that the Government did not intentionally delay its prosecution and, in any event, the
Defendant's ability to prepare a defense was not prejudiced by any delay.
The Court does conclude, however, that the three conspiracy counts charge the same
offense, and, accordingly, are multiplicitous. The Government concedes that Count One is
multiplicitous with Count Three but argues that Count Three and Count Five nevertheless
involve distinct conspiracies. The Court concludes that Count Five, like Counts One and Three,
charges the Defendant's participation in the same decade-long unlawful agreement with the
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Defendant's continuous coconspirator, Jeffrey Epstein. The overarching conspiracy—which, as
the Government argued and proved at trial, employed a single "playback" to groom and sexually
abuse underage girls—constitutes a single conspiracy offense with multiple victims. Because the
Double Jeopardy Clause prohibits the Court from imposing multiple punishments for the same
offense, the Court will enter judgment on Count Three alone among the conspiracy counts. This
legal conclusion in no way calls into question the factual findings made by the July. Rather, it
underscores that the jury unanimously found—three times over—that the Defendant is guilty of
conspiring with Epstein to entice, transport, and traffic underage girls for sexual abuse.
I. The Court grants the Defendant's multiplicity claim.
The Defendant was indicted on six counts: (I) conspiracy to entice individuals under the
age of seventeen to travel in interstate commerce with intent to engage in sexual activity illegal
under New York law, in violation of 18 U.S.C. § 371; (2) enticement of individuals under the
age of seventeen to travel in interstate commerce with intent to engage in sexual activity illegal
under New York law, and aiding and abetting the same, in violation of 18 U.S.C. §§ 2422, 2; (3)
conspiracy to transport individuals under the age of seventeen to travel in interstate commerce
with intent to engage in sexual activity illegal under New York law, in violation of 18 U.S.C.
§ 371; (4) transportation of an individual under the age of seventeen with intent to engage in
sexual activity illegal under New York law, and aiding and abetting the same, in violation of 18
U.S.C. §§ 2423(a), 2; (5) conspiracy to commit sex trafficking of individuals under the age of
eighteen, in violation of 18 U.S.C. § 371; and (6) sex trafficking of an individual under the age of
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eighteen, and aiding and abetting the same, in violation of 18 U.S.C. §§ 1591, 2. S2 Indictment,
Dkt. No. 187.'
In two prior pretrial motions, the Defendant requested that the Court dismiss two of the
three conspiracy counts—that is, Counts One, Three, and Five—as multiplicitous, given that all
three were premised on the Defendant's participation in a single criminal conspiracy with
Epstein. To punish her for all three counts, she argued, would violate the Double Jeopardy
Clause. In opinions dated April 16, 2021, and August 13, 2021, the Court denied those motions
as premature because the Double Jeopardy Clause would prohibit only multiple punishments for
the same offense, but not indictments for the same offense. United States v. Maxwell, 534 F.
Supp. 3d 299, 322 (S.D.N.Y. 2021) (citing United States v. Josephberg, 459 F.3d 350, 355 (2d
Cir. 2006)); United States v. Maxwell, No. 20-CR-330 (AJN), 2021 WL 3591801, at *5
(S.D.N.Y. Aug. 13, 2021).
Because the jury convicted the Defendant on all three conspiracy counts, the Defendant
now requests that the Court impose judgment on only one of these counts. Maxwell Br. at 19,
Dkt. No. 600. The Government concedes that Counts One and Three are multiplicitous and
agrees that the Court should not impose judgment on Count One, but it argues that Counts Three
and Five are distinct offenses premised on distinct criminal conspiracies, and so the Court should
impose judgment on both. Gov. Br. at 24, Dkt. No. 621.
On consent of both parties, the Court will not impose judgment on Count One because it
is multiplicitous. For the reasons that follow, the Court further grants the Defendant's motion to
also not enter judgment on Count Count Five because it is also multiplicitous with Count Three.
I The original and S2 Indictments also included two counts of perjury. See S2 IndictmentII 28-31. The Court
granted the Defendant's motion to sever those counts for a separate trial. United States v. Maxwell, 534 F. Supp. 3d
299, 321 (S.D.N.Y. 2021).
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A. Applicable law
The Double Jeopardy Clause of the Fifth Amendment guarantees 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.
That guarantee "serves principally as a restraint on courts and prosecutors," ensuring that a court
does not "exceed its legislative authorization by imposing multiple punishments for the same
offense." Brown v. Ohio, 432 U.S. 161, 165 (1977); see also Morris v. Reynolds, 264 F.3d 38,
48 (2d Cir. 2001). An indictment is multiplicitous, and therefore implicates double jeopardy,
"when it charges a single offense as an offense multiple times, in separate counts, when, in law
and fact, only one crime has been committed." Maxwell, 534 F. Supp. 3d at 322 (quoting United
States v. Chacko, 169 F.3d 140, 145 (2d Cir. 1999)). "A claim of multiplicity cannot succeed,
however, 'unless the charged offenses are the same in fact and in law.'" United States v. Jones,
482 F.3d 60, 72 (2d Cir. 2006) (quoting United States v. Estrada, 320 F.3d 173, 180 (2d Cir.
2003)).
If the two offenses at issue are both conspiracies charged under the same statute, then the
multiplicity inquiry turns on whether the two conspiracies are the same "in fact," meaning they
involve the same agreement. United States v. Araujo, No. 17-CR-438 (VEC), 2018 WL
3222527, at *3 (S.D.N.Y. July 2, 2018) (citing United States v. Ansaldi, 372 F.3d 118, 124-25
(2d Cir. 2004)); United States v. Gaskin, 364 F.3d 438, 454 (2d Cir. 2004) ("[T]o survive a
double jeopardy attack, the government would have to show that the two schemes involved
'distinct' agreements."). Yet "whether the evidence shows a single conspiracy or more than one
conspiracy is often not determinable as a matter of law or subject to bright-line formulations."
Jones, 482 F.3d at 72. Rather, the parties agree that the Court's inquiry is guided by the Second
Circuit's Kmfant factors. See, e.g., United States v. Diallo, 507 F. App'x 89, 91 (2d Cir. 2013)
5
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(summary order) (citing United States v. Korfant, 771 F.2d 660, 662 (2d Cir. 1985) (per
curiam)); United States v. Villa, 744 F. App'x 716, 720 (2d Cir. 2018) (summary order). Those
factors include:
(1) the criminal offenses charged in successive indictments; (2) the overlap of
participants; (3) the overlap of time; (4) similarity of operation; (5) the existence
of common overt acts; (6) the geographic scope of the alleged conspiracies or
location where overt acts occurred; (7) common objectives; and (8) the degree of
interdependence between alleged distinct conspiracies.
United States v. Macchia, 35 F.3d 662, 667 (2d Cir. 1994) (quoting Korfant, 771 F.2d at 662). In
applying the Korfant factors, "no dominant factor or single touchstone" determines whether two
allegedly distinct conspiracies "'appear in fact and in law the same." Id. at 668 (quoting United
States v. Reiter, 848 F.2d 336, 340 (2d Cir. 1988)). Moreover, "the Korfant list is not
exhaustive, and every case must be assessed on its own terms . . . based on the entire record."
United States v. Maslin, 356 F.3d 191, 196 (2d Cir. 2004).
In assessing the evidence, the Second Circuit applies a burden-shifting framework. The
defendant carries the initial burden of making a non-frivolous showing that the two counts in fact
charge only one conspiracy. If met, the burden then shifts to the Government to show, "by a
preponderance of the evidence, that there are in fact two distinct conspiracies and that the
defendant is not being placed in jeopardy twice for the same crime." United States v. Lopez, 356
F.3d 463, 467 (2d Cir. 2004) (per curiam) (citing United States v. DelVecchio, 800 F.2d 21, 22
(2d Cir. 1986)); see also United States v. Mallah, 503 F.2d 971, 986 (2d Cir. 1974) (applying this
burden-shifting approach post-conviction); United States v. Hernandez, No. 09-CR-625 (HB),
2009 WL 3169226, at *9 (S.D.N.Y. Oct. 1, 2009).
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B. Analysis
A further summary of the two counts at issue is required. As briefly outlined above,
Count Three of the Indictment charged the Defendant under 18 U.S.C. § 371, the general federal
conspiracy statute, with conspiring to violate 18 U.S.C. § 2423(a) (the Mann Act), by
transporting minors across state lines with the intent to engage in sexual activity criminalized by
state law. S2 Indictment ¶¶ 16-18. In this case, the relevant state offense was New York Penal
Law Section 130.55, which criminalizes sexual contact with an individual known to be under the
age of seventeen. Trial Tr. 3034-35. The Count Three conspiracy spanned from 1994 to 2004.
S2 Indictment 1 17. As the Government explained in its summation, the jury could convict the
Defendant under Count Three based on evidence related ta
three victims who testified at trial. Trial Tr. at 2895.2
Count Five of the Indictment also charged the Defendant under 18 U.S.C. § 371, but for
conspiring to violate 18 U.S.C. §§ 1591(a) & (b) (the Trafficking Victims Protection Act), by
trafficking individuals under the age of eighteen for commercial sex acts that affect interstate
commerce. S2 Indictment 9¶ 22-24. Count Five's conspiracy spanned from 2001 to 2004. Id.
123. The Government explained to the jury that it could convict the Defendant on Count Five
based on evidence related to Trial Tr. at 2896.
The Defendant primarily contends that Count Five is a subset of, is subsumed in, or is
otherwise too similar to Count Three under the Korfant factors. The Court agrees. Although
some Korfant factors favor the Government, the weight of the factors-supplemented by a
review of the Government's case presented at trial—demonstrates that the Government has not
2The Court permitted certain victim witnesses to testify using a pseudonym or first name. See Nov. I, 2021 Tr. at
6-7.
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met its burden of proving by a preponderance of the evidence that the counts are not
multiplicitous.
The offenses charged and common objectives. Both Counts Three and Five are charged
under the same statute, 18 U.S.C. § 371, for conspiracy to commit an offense against the United
States. But going beyond this "general level" of similarity, the statutory objectives of the two
counts differ. Macchia, 35 F.3d at 669. Count Three is a conspiracy to violate § 2423(a) and
Count Five a conspiracy to violate § 1591. These differing statutory objectives entail legal
differences. Count Three, for example, charges unlawful sexual activity (defined as sexual
touching of a minor) while Count Five charges commercial sexual activity with a minor. And
each provision defines "minor" differently: under seventeen years old for Count Three but under
eighteen years old for Count Five. Further, Count Three requires an agreement with intent to
transport across state lines, while Count Five's agreement requires only intent of sexual activity
that affects interstate commerce. These differences push the first Korfant factor in the
Government's favor. See Estrada, 320 F.3d at 182 (distinguishing between a conspiracy to
distribute cocaine and one to distribute crack); United States v. Villa, No. 3:12-CR-40 (JBA),
2014 WL 252013, at *4 (D. Conn. Jan. 22, 2014), aff'd, 744 F. App'x 716 (2d Cir. 2018)
(summary order) (distinguishing between a § 371 conspiracy to "commit theft from an interstate
shipment and to transport stolen property across state lines" and one to "sell stolen property").
The Government, however, ens in suggesting that this factor alone is "fatal" to the
Defendant's multiplicity claim. Gov. Br. at 29. To the contrary, no single Koifant factor is
dominant or dispositive. Macchia, 35 F.3d at 668. And courts in this district have found two
conspiracy counts to be the same offense even when they have different statutory objectives
because both counts can arise from the same agreement. E.g., Hernandez, 2009 WL 3169226, at
8
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*11 (concluding that conspiracies to defraud the United States and to commit mail and wire
fraud were the same conspiracy as earlier conspiracy to use or transfer false IDs). After all, "[a]
single agreement to commit several crimes constitutes one conspiracy." United States v. Broce,
488 U.S. 563, 570-71 (1989). The Government implicitly conceded this point of law when it
agreed that Counts One and Three were multiplicitous. Count One charges a conspiracy to
entice minors to travel across state lines in violation of 18 U.S.C. § 2422 while Count Three
charges a conspiracy to transport minors across state lines in violation of 18 U.S.C. § 2423(a).
Despite distinct statutory predicates for these two § 371 conspiracies, the Government did not
contest that they were the same offense. Though Count Five is unquestionably less similar to
Count Three than is Count One, the difference in statutory predicates does not end the matter. It
is well established that a single conspiracy can contain multiple objectives, particularly if the
objectives share important similarities, as they do here. United States v. Salameh, 152 F.3d 88,
148 (2d Cir. 1998) (citing United States v. 4/Irani, 968 F.2d 1512, 1518 (2d Cir. 1992)).
Overlap ofparticipants. The participants in the two conspiracies in Counts Three and
Five substantially overlap with one another. Of course, the defendant will always overlap
between two allegedly multiplicitous conspiracies, so their participation in both conspiracies has
negligible significance. Villa, 2014 WL 252013, at *5. More importantly here, Epstein was the
Defendant's primary coconspirator in both conspiracies, and the Government argued that in both
conspiracies the Defendant played the same role of acquiring underage girls for Epstein to
sexually abuse. They were, the Government explained, "partners in crime" over the decade
alleged in the Indictment. E.g., Trial Tr. at 34, 2842, 2885; see also id. at 41 ("For a decade, the
defendant played an essential role in this scheme."). This overlap in key participants, and in core
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roles played by those participants, significantly favors the Defendant as to the second Korfant
factor. See Macchia, 35 F.3d at 669; Hernandez, 2009 WL 3169226, at *II.
The Government responds that the Count Five conspiracy included who
was not involved in Count Three. Yet received far less attention than other conspirators
in the Government's case, being mentioned only briefly in the Government's opening statement
and closing arguments. E.g., Trial Tr. at 2876 (noting, "and sometimes would call,
too"). Conspiracies often change membership without forming a new, distinct conspiracy,
particularly if key members of the conspiracy remain over the course of a decade. See United
States v. Eppolito, 543 F.3d 25, 48 (2d Cir. 2008). participation beginning in 2001
therefore does not shift the import of the second Korfant factor.
Overlap of time. The time periods of the two counts overlap completely. Namely, Count
Five's period of 2001 to 2004 is "wholly within the time frame" of Count Three from 1994 to
2004, which substantially favors the Defendant on this Korfant factor. United States v.
Calderone, 982 F.2d 42, 47 (2d Cir. 1992). The Government's attempt to minimize this factor
by noting that most overt acts for Count Three occurred in the 1990s is simply not reflected in
this circuit's case law. See, e.g., Macchia, 35 F.3d at 669 (focusing on the overlap in time frame
alleged in the indictment). The overlap in time here raises the inference that one conspiracy
wholly encompasses the other, and that inference tips in the Defendant's favor. See Araujo,
2018 WL 3222527, at *6.
Similarity of operations. Counts Three and Five involve significant similarities in
operations. The methods by which the Defendant groomed and facilitated the sexual abuse of
minor victims was a central focus of both parties' cases at trial. The Government called as an
expert witness Dr. Lisa Rocchio, who identified the typical steps in sexual abusers' grooming of
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minors for sexual abuse. Trial Tr. at 714-19. Applying that expert testimony to the witnesses'
testimony, the Government argued that the Defendant's conduct as to each victim followed a
uniform "playbook." E.g., id. at 2184 ("She ran the same playbook again and again and again.
She manipulated her victims and she groomed them for sexual abuse."), 2853 ("The patterns you
saw throughout this trial, the playbook that Maxwell ran for years, is just one of the many ways
that you know that Maxwell is guilty."). And the Government emphasized the many similarities
in the Defendant's conduct as recounted by all four witnesses. Id. at 2848 ("The similarities
between what happened to e incredibly powerful
evidence of the defendant's guilt. So I want to talk to you about the playbook that Maxwell ran
again and again and again."), 2901 ("Four women have testified at this trial about Maxwell.
They all describe the same woman, the same playbook."). Carolyn was the only witness who
testified regarding Count Five. The Government argued that her testimony "was corroborated by
what Annie an old [the jury] about Maxwell and how she operated for years."
Id. at 2880; see also id. at 2895-96 ("Maxwell groomed both as part of a
broader agreement with Epstein to provide him with underage girls for abuse."). The
Government, in short, argued that the Defendant engaged in substantially the same operations for
a decade as to all victims under both Counts Three and Five.
The Government responds that while the Defendant and Epstein continuously conspired
to sexually abuse minor victims, their conduct beginning in 2001 evolved from developing one-
on-one relationships with their victims to include a "pyramid scheme of abuse," by which they
acquired underage girls by paying them for so-called "massage" appointments. Gov. Br. at 32
(quoting Trial Tr. at 40). To be sure, the Government in both its opening statement and its
closing arguments explained that the Defendant and Epstein's abuse "evolved over the course of
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a decade," having both the "earlier phase" and the later "pyramid scheme." Trial Tr. at 40; see
also, e.g., id. at 2886 (describing 2001 as "the beginning of the pyramid scheme of abuse"). But
a single conspiracy can enter "two or more phases or spheres of operation" without creating a
discontinuity in the underlying unlawful agreement, particularly if the same people are serving
the same roles in each phase. United States v. Pena, 846 F. App'x 49, 51 (2d Cir. 2021)
(summary order) (quoting United States v. Berger, 224 F.3d 107, 114-15 (2d Cir. 2000)); see
also United States v. Maldonado-Rivera, 922 F.2d 934, 963 (2d Cir. 1990). Notably, the
Government, after distinguishing between earlier and later phases in the pattern of abuse,
immediately emphasized that "[fJor a decade, the defendant played an essential role in this
scheme," blurring any difference between the two phases. Trial Tr. at 41.
Moreover, though these phases did involve some differing means to acquire minor
victims, the differences presented at trial were not as great as the Government suggests in its
brief. As to both counts, both before and after 2001, the Government emphasized that massage
was a primary means by which the Defendant and Epstein normalized bodily contact and also the
means by which the Defendant and Epstein commonly instigated instances of sexual abuse.
Compare id. at 40 ("You will learn that in the 1990s, they used the cover of mentoring young
girls ... to introduce massage . . . and that you will learn that they used these so called massages
as a way to sexually abuse the victims."), with id. at 41 ("Under this pyramid scheme of abuse,
the defendant could just call girls to schedule massage appointments and hand them cash
afterwards . .. ."); e.g., id. at 35 ("You will learn that the cover of massage was the primary way
the defendant and Epstein lured girls into sexual abuse."), 2852 ("Again and again throughout
this trial, you heard about how these girls were asked to perform sexualized massages on Jeffrey
Epstein.").
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Further, in both counts, the witnesses testified that they received financial gifts and
payments as a means by which the Defendant and Epstein acquired their victims' trust and
extended the period of sexual abuse. E.g., id. at 302 (Jane testified that she was given money
"[a]lmost every visit" and that Epstein paid for things like voice lessons and clothes). The
Government emphasized such financial gifts as one step in the Defendant's playbook of
grooming. E.g., id. at 2851 ("Then came the next step in the playbook: Making these girls feel
special, giving them gifts, making friends, giving them money, promising to help with their
futures, promises like sending Annie on a trip to Thailand or helping to pay for Jane's voice
lessons and tuition."), 2890 ("[Jane] told you that Epstein gave her money and gifts and paid for
school. That money wasn't free .... That is inducement, that is enticement, that is coercion.").
The financial quid pro quo may have become more explicit beginning in 2001, but that shift in
approach is not nearly so dramatic as to suggest that the Defendant and Epstein at that time
entered "a wholly new agreement" with a new "conspiratorial objective." Haji v. Miller, 584 F.
Supp. 2d 498, 519 (E.D.N.Y. 2008). The similarity-of-operations factor therefore favors the
Defendant.
Overlap ofgeographic scope. There is some, albeit incomplete, geographic overlap
between the two counts. Count Three focused on travel to New York because the ultimate
objective of the conspiracy was to transport minors to New York to engage in criminal sexual
activity in violation of New York law. Count Five, by contrast, focused on Epstein's residence
in Florida, wher were paid to give Epstein sexualized massages.
Nevertheless, some geographic overlap between the two counts remained. All four witnesses
testified about sexual conduct by the Defendant or Epstein in locations other than New York,
whether Florida, New Mexico, or London. The Court admitted such testimony concerning
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sexual conduct outside of New York as relevant to Count Three because it tended to establish the
existence of a conspiracy and of the Defendant and Epstein's intent to abuse the victims in New
York. In sum, the same locations—particularly Florida—were part of the Government's case for
both counts. And over time, a conspiracy's "shifting emphasis in the location of operations
do[es] not necessarily require a finding of more than one conspiracy." Eppolito, 543 F.3d at 48
(quoting Jones, 482 F.3d at 72). This factor therefore favors the Defendant or, at least, is neutral.
Common overt acts. The Government correctly notes that the overt acts provided to the
jury for Counts Three and Five are distinct. See Jury Charge, Dkt. No. 565 at 49-50. This factor
therefore tips toward the Government—but only slightly. A number of the overt acts listed for
Count Three could have been prosecuted under Count Five but for the fact that 18 U.S.C. § 1591,
the Trafficking Victims Protection Act, was not enacted until 2000. See Gov. Br. at 28. That
some identical overt acts were not listed for both conspiracies is therefore more a function of
legal timing than an indication of two distinct conspiracies. Cf. Hernandez, 2009 WL 3169226,
at *12.
Interdependence. Counts Three and Five are not interdependent because the success or
failure of one conspiracy is independent of the success or failure of the other. See Macchia, 35
F.3d at 671. In other words, the success of the Defendant and Epstein's scheme to abuse Carolyn
from 2001 to 2004 was not made more or less likely by the prior success or failure to abuse Jane,
Annie, or any other underage girl. This factor, however, makes little difference in the final
analysis if "what was ultimately proven was one common conspiracy." Maslin, 356 F.3d at 197.
The Government's theory at trial. The Second Circuit has instructed district courts to
consider not only the enumerated Kotfant factors but to consider the entire record. See id. at
196; United States v. Olmeda, 461 F.3d 271, 282 (2d Cir. 2006). In Masan, the Second Circuit
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first explained that applying the Korfant factors led to the conclusion that successive
prosecutions for conspiracies to distribute marijuana were barred by double jeopardy, but then
continued, stating that "several additional factors ... not directly addressed in Kolfant ... further
point toward a finding of double jeopardy," namely, "the fact that the Government, in its opening
and closing arguments, presented both cases to the jury as broad conspiracies of an essentially
identical nature." 356 F.3d at 197. The same is true here. As explained above, the
Government's opening statement and closing arguments presented a theory of a singular
conspiracy, highlighting: The degree of similarity between each victim witness's experience
over a decade; the common "playbook" that the Defendant ran "over and over and over again,"
Trial Tr. at 2848; and the tight partnership between the Defendant and Epstein. And each of
those features was accompanied by references to a singular "scheme" to abuse all victim
witnesses. Id. at 36, 2843, 2853. At bottom, the case presented to the jury by the Government
was of a single decade-long conspiracy by the Defendant and Epstein to sexually abuse underage
girls. Having pursued such a broad and encompassing conspiracy, the Government cannot now
claim, and cannot carry its burden of proving by a preponderance of the evidence, that Count
Five was legally and factually distinct. See Maslin, 356 F.3d at 197.
Because Count Three and Count Five are multiplicitous, the proper remedy is to enter
judgment on only one of the counts. See Josephberg, 459 F.3d at 355 ("If the jury convicts on
more than one multiplicitous count, the defendant's right not to suffer multiple punishments for
the same offense will be protected by having the court enter judgment on only one of the
multiplicitous counts." (citing Ball v. United States, 470 U.S. 856, 865 (1985))). Because Count
Five is factually subsumed by Count Three, the Court will impose judgment only on Count
Three. The Court emphasizes, however, that finding Count Five to be multiplicitous "does not
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overturn any of the factual findings made by the jury" —it means only that, "as a matter of law,
the jury found the same thing twice." Ansaldi, 372 F.3d at 125. Or, in this case, three times.
II. The Court denies the Defendant's Rule 29 motion.
The Defendant argues there was insufficient evidence to support any of her five counts of
conviction, and, therefore, the Court should enter a judgment of acquittal as to all counts under
Rule 29 of the Federal Rules of Criminal Procedure. Rule 29 provides, in relevant part, that
"[a]fter the government closes its evidence or after the close of all the evidence, the court on the
defendant's motion must enter a judgment of acquittal of any offense for which the evidence is
insufficient to sustain a conviction." Fed. R. Crim. P. 29(a); United States v. Pugh, 945 F.3d 9,
19 (2d Cir. 2019). "[T]he critical inquiry on review of the sufficiency of the evidence to support
a criminal conviction must be . . . to determine whether the record evidence could reasonably
support a finding of guilt beyond a reasonable doubt." Jackson v. Viiginia, 443 U.S. 307, 318
(1979). "The court must make that determination with the evidence against a particular
defendant, viewed in the light most favorable to the government, and with all reasonable
inferences resolved in favor of the government." Pugh, 945 F.3d at 19 (cleaned up) (quoting
Eppolito, 543 F.3d at 45). Under this inquiry, "the relevant question is whether, after viewing
the evidence in the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319
(citing Johnson v. Louisiana, 406 U.S. 356, 362 (1972)); United States v. Zhong, 26 F.4th 536,
560 (2d Cir. 2022).
At the close of the Government's case, the Defendant made her Rule 29 application "with
respect to every count in the S2 indictment," but "confine[d] [her] comments to address
specifically Counts One and Two." Trial Tr. at 2266. The Court denied the motion. Id. at 2274.
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Following the close of the defense case, the Defendant renewed her previous Rule 29
application. Id. at 2736.
In her brief, the Defendant reiterates her request that the Court "enter a judgment of
acquittal as to all counts." Maxwell Br. at 30. The Court has deemed Counts One and Five
multiplicitous, see supra Part I, and therefore the Court will not enter judgment on those counts.
And at trial, the jury found the Defendant not guilty on Count Two. Thus, the Court will
consider the sufficiency of the evidence for the remaining counts: Three, Four, and Six. After
considering the arguments and evidence, the Court denies the Defendant's Rule 29 motion.
The Court first notes that the Defendant has not provided substantive argument on the
sufficiency of the evidence—in either the oral application or the post-conviction briefing—for
Counts Three, Four, or Six. Instead, for these remaining counts, the Defendant simply asserts
that the Court should "enter a judgment of acquittal as to all counts under Rule 29 . . because
the government failed to prove each element of the charges beyond a reasonable doubt."
Maxwell Reply at 18, Dkt. No. 647; Maxwell Br. at 30. The Court disagrees.
The Court first considers the substantive counts. Count Four charged the Defendant with
the substantive count of transportation of an individual under the age of seventeen with intent to
engage in sexual activity in violation of New York law. This count related only to Jane during
the period 1994 to 1997. The Government was required to establish the following elements
beyond a reasonable doubt: (1) that the Defendant knowingly transported an individual in
interstate commerce, as alleged in the Indictment; (2) that the Defendant transported the
individual with the intent that the individual would engage in sexual activity for which any
person can be charged with a criminal offense under New York law, as alleged in the Indictment;
and (3) that the Defendant knew that the individual was less than seventeen years old at the time
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of the acts alleged in Count Four; or that the Defendant aided and abetted the same. Jury Charge
at 26,37.
The Court concludes that there was sufficient evidence for the jury to find the Defendant
guilty of Count Four beyond a reasonable doubt. Jane testified that Epstein first engaged in
sexual activity with her in Palm Beach when she was fourteen years old. Trial Tr. at 305. She
then began traveling from Palm Beach to New York with the Defendant and Epstein at that same
age. Id. at 315-16. Jane explained that she traveled on commercial flights and Epstein's private
jet. Id. at 316. She testified that the Defendant also traveled on some of these flights, and that
the Defendant assisted her in making her travel arrangements to New York. Id. at 316-17. On
one occasion when she was fifteen, Jane recounted, she had trouble getting on a commercial
flight because she did not have proper identification. However, the Defendant "made it happen"
for her by making a call and helping her get on the flight. Id. at 323-24. Jane also testified that
the Defendant was present on some occasions when Epstein sexually abused Jane in New York
when she was under the age of seventeen. Id. at 320. The Court concludes that this evidence,
taken together, was sufficient for the jury to find beyond a reasonable doubt that the Defendant
knowingly transported Jane to New York with the intent to engage in sexual activity illegal
under New York law, or at minimum, aided and abetted Epstein in doing so.
Next, the Court concludes that there was sufficient evidence for the jury to find the
Defendant guilty of Count Six. Count Six charged the Defendant with the substantive count of
sex trafficking of an individual under the age of eighteen. The Government was required to
prove beyond a reasonable doubt that: (1) the Defendant knowingly recruited, enticed, harbored,
transported, provided, or obtained a person; (2) the Defendant knew that the person was under
the age of eighteen; (3) the Defendant knew the person would be caused to engage in a
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commercial sex act; and (4) the Defendant's acts were in or affecting interstate commerce; or
that the Defendant aided and abetted the same. Jury Charge at 32, 37. Count Six applied solely
to Carolyn during the period 2001 to 2004. Id. at 32.
Carolyn testified that when she was under the age of eighteen, the Defendant would call
her to set up appointments for Carolyn to perform sexualized massages on Epstein. Trial Tr.
1527, 1530. Carolyn explained the sexual activities that occurred during the massages. Id. at
1544-47. Carolyn testified that the Defendant saw her naked in the massage room and continued
to call Carolyn to schedule appointments with Epstein. Id. at 1538. She recalled a specific
incident when she was fourteen in which she was naked in the massage room and the Defendant
touched her breasts and commented that Carolyn "had a great body for Mr. Epstein and his
friends." Id. at 1536-38. Carolyn testified that the Defendant knew that she was under the age
of eighteen and continued to call her to schedule appointments with Epstein after learning that
fact. Id. at 1535. Carolyn further testified that she received money in exchange for performing
sexualized massages on Epstein. E.g., id. 1523. She recalled that while money was often left on
the sink outside of the massage room, the Defendant paid her directly after massages on one or
two occasions. Id. at 1540-41. Carolyn's testimony was corroborated by
boyfriend at the time, and physical evidence including phone message pads. This evidence was
plainly sufficient for the jury to find beyond a reasonable doubt that the Defendant committed
sex trafficking of an individual under eighteen, or aided and abetted Epstein in doing so.3
3 If the Court were to conclude that Count Five is not multiplicitous, it would deny the Defendant's Rule 29 motion
as to Count Five. Count Five charged the Defendant with participating in a conspiracy to commit sex trafficking of
individuals under the age of eighteen from about 2001 to 2004. The evidence that supports the Defendant's
conviction of Count Six, the substantive count, also t Five conspiracy conviction. Additionally,
Juan Alessi testified that the Defendant approached n a parking lot and that he then saw her at
Epstein's Palm Beach residence later that day. Tria ocumentary evidence, including flight records,
established that Virginia was under the age of eighteen when she met the Defendant and Epstein. See, e.g., id. at
1855 (December 2000 flight record including Epstein, the Defendant, and Virginia); see also GX-I4 (birth
certificate). Carolyn testified that Virginia recruited her and that Virginia performed sexualized massages on
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Finally, Count Three charged the Defendant with conspiracy to transport individuals
under the age of seventeen to travel in interstate commerce with intent to engage in illegal sexual
activity in violation of New York law. The Government was required to prove beyond a
reasonable doubt: (1) that two or more persons entered into the unlawful agreement charged; (2)
the Defendant knowingly and willfully became a member of that conspiracy; (3) one of the
members of the conspiracy knowingly committed at least one overt act; and (4) the overt act that
the jury found to have been committed was committed in furtherance of that conspiracy. Jury
Charge at 41.
The Court concludes that the trial evidence supported a finding of guilt beyond a
reasonable doubt for each element of Count Three. The Government presented evidence that
could lead a reasonable juror to conclude that the Defendant worked with Epstein between 1994
and 2004 to groom minor victims in an effort to transport them to New York to engage in sexual
activity illegal under New York law. As noted above,■testified in detail about her travel to
New York with the Defendant and Epstein where she was sexually abused. Trial Tr. at 319-20.
Jane also testified about the steps taken by the Defendant and Epstein to make her feel
comfortable before they began engaging in sexual activity with her and inviting her to travel. Id.
299-303; see also id. at 348 .testifying that their behavior toward her made her "feel
special").
Other witnesses testified to similar conduct. Annie testified that after she met Epstein in
New York, she was invited to travel with the Defendant and Epstein to New Mexico when she
was sixteen. Id. at 2068-69,2075-77. She testified that on this trip, the Defendant and Epstein
took her shopping and to the movies. Id. at 2080-81. She also testified that the Defendant
Epstein in exchange for money. Trial Tr. 1518-24. The Court concludes that the evidence related to Carolyn and
Virginia was sufficient for the jury to convict the Defendant on Count Five.
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encouraged her to massage Epstein's feet, and that the Defendant then gave her a massage during
which the Defendant touched Annie's breasts. Id. at 2083-86. As noted above, Carolyn testified
that the Defendant paid her for performing sexualized massages on Epstein. She also testified
that Epstein and the Defendant asked her about her life and family and discussed sexual topics
with her. Id. at 1533-36. Epstein then invited her to travel generally, and the Defendant invited
her to travel to Epstein's private island in the Caribbean. Id. at 1535,1540. A reasonable juror
could have concluded that the Defendant's and Epstein's actions, including their efforts to
normalize sexual conduct and invitations for underage girls to travel to New Mexico and the
Caribbean, were in furtherance of the conspiracy's goal of transporting minors to New York for
the purpose of engaging in sexual activity illegal under New York law. Finally, although the
jury was instructed that it could not convict the Defendant solely on the basis of
testimony, her testimony corroborated the testimony of other witnesses as to the Defendant's
knowledge and role in the conspiracy. Id. at 1177-90. The Court concludes that this evidence
was sufficient for a reasonable jury to convict the Defendant for conspiring to transport
individuals in interstate commerce with intent to engage in sexual activity illegal under New
York law.
Accordingly, the Court denies the Defendant's Rule 29 motion for a judgment of
acquittal.
III. The Court denies the Defendant's motion claiming a construct iv e amendment or
prejudicial variance.
The Defendant also seeks to vacate her convictions as to Counts One, Three, and Four
(the Mann Act counts) pursuant to Federal Rule of Criminal Procedure 33. She contends that the
jury convicted her of intending that Jane engage in sexual activity in New Mexico, rather than
New York, thus resulting in a constructive amendment of the Indictment, or in the alternative, a
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prejudicial variance. For the following reasons, the Court disagrees and denies the Defendant's
motion on this basis.
A. Applicable Law
Under the Fifth Amendment's Grand Jury Clause, "a defendant has the right to be tried
only on charges contained in an indictment returned by a grand jury." United States v. Wozniak,
126 F.3d 105, 109 (2d Cir. 1997). "[W]hen the charge upon which the defendant is tried differs
significantly from the charge upon which the grand jury voted," a constructive amendment
occurs and reversal is required. United States v. Khalupsky, 5 F.4th 279, 293 (2d Cir. 2021).
"To prevail on a constructive amendment claim, a