EFTA00099941

"The government bears the burden of proving inevitable discovery by a preponderance of 
the evidence." Stokes, 733 F.3d at 444 (citing Nix, 467 U.S. at 444). This requires establishing, 
"with a high level of confidence, that each of the contingencies necessary to the legal discovery 
of the contested evidence would be resolved in the government's favor."' Id. (quoting Heath, 455 
F.3d at 60). As the Supreme Court has explained, if the Government can establish that the evidence 
inevitably would have been discovered by lawful means, "then the deterrence rationale [for the 
exclusionary rule] has so little basis that the evidence should be received." Nix, 467 U.S. at 444. 
ii. 
Discussion 
Even if the Court were to find that there had been some constitutional violation in the 
Government obtaining a modification of the protective order—which it should not—the question 
in an inevitable discovery analysis is whether the Government would inevitably have found the 
disputed evidence. The answer is yes, at least as to some of the evidence, including the April 2016 
deposition that forms the basis of Count Five and part of the July 2016 deposition that forms the 
basis of Count Six.'" 
41 In January 2021, the defendant asked Judge Preska to reconsider her order unsealing certain 
portions of her testimony on the basis that, among other things, public release of the section wouki 
make it more difficult for Maxwell to suppress the testimony as evidence against her at hercriminal 
trial. On February 8, 2021, Judge Preska "decline[d] Ms. Maxwell's invitation to reconsider its 
order" and noted that the defendant had both filed a suppression motion and available tools under 
the Federal Rules of Evidence and Procedure. (See 15 Civ. 7433 (LAP), Dkt. No. 1211 at 3, 5). 
The portion of the July 2016 deposition transcript that forms the basis of Count Six that has been 
unsealed relates to the defendant denyingthat she has given a massage to anyone, including Epstein 
or MinorVictim-2. (See 15 Civ. 7433 (LAP), Dkt. No. 1212-1 at 113). The fact that the defendant 
argued against unsealing the transcript by pointing to her suppression argument is irrelevant. Judge 
Preska determined that the public's First Amendment right of access outweighed the defendant's 
interests. If the Government had not modified the protective order and charged the defendant with 
perjury based on the deposition transcript, that argument would have been unavailable and the 
balance would have tippedstill more in favor of public access, leading to the transcript's inevitable 
discovery. 
94 
EFTA00100061

The defendant asks the Court for a drastic remedy, namely suppression of all evidence the 
Government obtained pursuant to the subpoena, as well as the dismissal of Counts Five and Six. 
In so doing, the defendant seeks a windfall to which she is not entitled based on unprecedented 
claims that ignore the facts and the law. Suppression of all materials the Government obtained 
pursuant to the subpoena is unwarranted here,particularly wherecertain of the materials have been 
subsequently unsealed by Judge Preska in the underlying civil litigation, including Maxwell's 
April 2016 deposition transcript. (See 15 Civ. 7433 (LAP), Dkt. No. 1077). The Second Circuit 
affirmed Judge Preska's ruling in October 2020, finding that the Court "correctly held that the 
deposition materials are judicial documents to which the presumption of public access attaches, 
and did not abuse its discretion in rejecting Maxwell's meritless arguments that her interests 
superseded the presumption of access." M. 
Maxwell, No.20-2413 (2d Cir.), (Dkt. No. 140-
1 at 3).42 On October 22, 2020, the defendant's April 2016 deposition was publicly filed. (See 15 
Civ. 7433 (LAP), Dkt. No. 1137-13). In February 2021, a redacted version of the defendant's July 
2016 deposition was publicly filed. (See 15 Civ. 7433 (LAP), Dkt. No. 1212-1). In other words, 
had the Government not obtained an order modifying the protective order, the Government 
inevitably would have discovered and obtained, at a minimum, the defendant's April 2016 
deposition transcript and a portion of the July 2016 transcript that form the basis of the charges in 
Counts Five and Six. 
42 Relatedly, the defendant moved to modify the criminal protective order in order to use 
confidential criminal discovery materials in filings she intended to submit in civil litigation. The 
defendant raised this precise point—that if the Court ultimately decided that it was inappropriate 
for the Government to proceed by subpoena, the Government would claim inevitable discovery. 
(Dkt. No. 54 at 3). The defendant offered no coherent explanation of how the criminal discovery 
materials could have any conceivable impact on the issues pending in civil litigation. She cited no 
case law suggesting that, for example, the possibility of an inevitable discovery argument by the 
Government should foreclose unsealing in a civil case. This Court rejected the defendant's motion 
to modify the criminal protective order. (Dkt. No. 51). The Second Circuit also dismissed the 
defendant's appeal for want of jurisdiction. (Dkt. No. 71). 
95 
EFTA00100062

3. 
The Defendant's Motion to Suppress Evidence Obtained Pursuant to 
the Subpoena Under the Fifth Amendment Is Without Merit 
The defendant's motion to suppress all evidenceobtained pursuant to the subpoena on Fifth 
Amendment grounds fails for multiple, independent reasons. As an initial matter, 
is not the Government and was not acting as an agent of the Government when it deposed the 
defendant or otherwise litigated the civil case against her. That the defendant may regret her choice 
to respond to 
s questions during two depositions instead of invoking her privilege 
against self-incrimination does not transform that choice into a Fifth Amendment violation. 
a. 
Applicable Law 
I. 
The Fifth Amendment — Generally 
The Fifth Amendment provides in pertinent part: "No person ... shall be compelled in any 
criminal case to be a witness against himself." U.S. Const. amend. V. To establish a Fifth 
Amendment violation, an individual must "demonstrate the existence of three elements: 
1) compulsion, 2) a testimonial communication, and 3) the incriminating nature of that 
communication." In re Grand Jury Subpoena, 826 F.2d 1166,1168 (1987); see also, e.g., In Re 
Three Grand Jury Subpoenas Jan. 5, 1988, 847 F.2d 1024,1028 (2d Cir. 1988). 
It is "axiomatic that the Amendment does not automatically preclude self-incrimination, 
whether spontaneous or in response to questions put by government officials." United States v. 
Washington, 431 U.S. 181, 186 (1977). "Indeed, far from being prohibited by the Constitution, 
admissions of guilt by wrongdoers, if not coerced, are inherently desirable." Id. at 187. "[T]he 
Fifth Amendment proscribes only self-incrimination obtained by a 'genuine compulsion of 
testimony." Id. (quotingMichigan v. Tucker, 417 U.S. 433, 440 (1974)); see also Washington, 
431 U.S. at 187 ("Absent some officially coerced self-accusation, the Fifth Amendment privilege 
is not violated by even the most damning admissions.'). Nor does the Constitution "prohibit every 
96 
EFTA00100063

element which influences a criminal suspect to make incriminating admissions." Id. The question 
is not whether a witness was encouraged to speak, but whether his "free will," when he spoke, 
"was overborne." Id. at 188; see also, e.g., United States v. Corbett, 750 F.3d 245, 253 (2d Cir. 
2014). 
It follows that the Government need not inform a witness of the nature of its investigation, 
see United States v. Okwumabua, 828 F.2d 950, 953 (2d Cir. 1987), much less his individual status 
in the investigation, see Washington, 431 U.S. at 189 & 190 n.6. The Constitution does not 
"require that the police supply a suspect with a flow of information to help him calibrate his self-
interest in deciding whether to speak or stand by his rights." Colorado v. Spring, 479 U.S. 564, 
576-77 (1987) (internal quotation marks omitted); see also, e.g., id. at 577 (there is no requirement 
that law enforcement give information that might affect "the wisdom" of speaking). Nor does the 
Constitution require that someone be questioned only in the manner most likely to ensure that he 
gives the decision whether to speak careful thought. Sec e.g., United States v. Roberts, 660 F.3d 
149, 157 (2d Cir. 2011) ("the Fifth Amendment does not protect against hard choices" (internal 
quotation marks omitted)); United States v. Mullens, 536 F.2d 997,1000 (2d Cir. 1976) (there is a 
difference between "those choices which are physically or psychologically coerced and those 
which are merely difficult"). 
In short, the Fifth Amendment is only violated by "government misconduct" that is 
"coercive." Colorado v. Connelly, 479 U.S. 157,163 (1986); see also Oregon v. Elstad, 470 U.S. 
298, 312 (1985) (Fifth Amendment prohibits "coercion" effected "by physical violence or other 
deliberate means calculated to break the suspect's will"). 
ii. 
The Fifth Amendment — Act of Production Privilege 
The act of production privilege is a form of the Fifth Amendment privilege pertaining to 
the production of materials. "[A]n individual may claim an act of production privilege to decline 
97 
EFTA00100064

to produce documents, the contents of which are not privileged, where the act of production is, 
itself, (1 ) compelled, (2) testimonial, and (3) incriminating." In re Three Grand Jut), Subpoenas 
Duces Tecum Dated fan. 29, 1999, 191 F.3d 173, 178 (2d Cir. 1999). 
Consistent with these requirements, the privilege only "prohibits the compelled disclosure 
of documents when the act of production has independent communicative aspects-such as an 
admission that the documents exist, that the subject possesses or controls the documents, that the 
documents are authentic, or that the subject believes the documents are responsive to the 
subpoena." In re Various Grand hay Subpoenas, 924 F. Supp. 2d 549, 552 (S.D.N.Y. 2013), 
aff'd, 579 F. App'x 37 (2d Cir. 2014); see also Fisher v. United States, 425 U.S. 391, 408 (1976). 
It follows that the privilege does not apply when "[t]he existence and location of the [sought] 
papers are a foregone conclusion and the [compelled individual] adds little or nothing to the sum 
total of the Government's information by conceding that he in fact has the papers." Id. at 411; see 
also In re Grand Juty Subpoena Duces Tecum Dated Oct. 29, 1992,1 F.3d 87, 93 (2d Cir. 1993); 
Madanes v. Madanes, 186 F.R.D. 279, 284 (S.D.N.Y. 1999) ("[E]ven if documents contain 
incriminating information, requiring a person to produce them does not implicate the Fifth 
Amendment unless the act of production is itself testimonial in nature and incriminating to the 
person making the disclosure."). 
lii. 
The Fifth Amendment —When Private Action Is Deemed 
Government Action 
As discussed above, "[t]he sole concern of the Fifth Amendment . . . is governmental 
coercion." Connelly, 479 U.S. at 170. "[T]he Fifth Amendment privilege is not concerned 'with 
moral and psychological pressures to confess emanating from sources other than official 
coercion.'" Id. (quoting Elstad, 470 U.S. at 305). For this reason, even "[t]he most outrageous 
98 
EFTA00100065

behavior by a private party seeking to secure evidence against a defendant does not make that 
evidence inadmissible." Connelly, 479 U.S. at 166. 
This does not mean that only action undertaken directly by the Government may violate 
the Fifth Amendment (or another right). In certain circumstances, a private entity may be deemed 
to be acting as a government agent. See United States v. Stein, 541 F.3d 130, 146 (2d Cir. 2008) 
("Actions of a private entity are attributable to the State if there is a sufficiently close nexus 
between the State and the challenged action of the entity so that the action of the latter may be 
fairly treated as that of the State itself." (internal quotation marks and ellipsis omitted)). 
However, this standard "is not satisfied when the state merely approves of or acquiesces in 
the initiatives of the private entity, or when an entity is merely subject to governmental regulation." 
Id. (internal quotations marks and citations omitted; alterations incorporated)). Nor is it sufficient 
that a non-government entity chooses to cooperate with a government investigation or has its own 
parallel investigation. See id. at 150. Non-government action is attributable to the government 
"only when it can be said that the State is responsible for the specific conduct of which the 
[defendant] complains." Blum v. Yaretsky, 457 U.S. 991, 1004 (1982) (emphasis in original). 
"Such responsibility is normally found when the State `has exercised coercive power or has 
provided such significant encouragement, either overt or covert, that the choice must in law be 
deemed to be that of the State.'" Stein, 541 F.3d at 147 (quoting Blum, 457 U.S. at 1004); see also 
Flagg v. Yonkers Say. & Loan Ass 'n, 396 F.3d 178, 187 (2d Cir. 2005). 
b. 
Discussion 
As an initial matter, the defendant's Fifth Amendment claim fails because she has not 
demonstrated state action. 
is not an agent of the Government and has not been at 
any time during the course of the Government's investigation, including when it initiated the civil 
99 
EFTA00100066

lawsuit against the defendant or took her deposition years before the Government initiated its own 
investigation. The defendant offers no evidence to the contrary, and there is no reason to believe, 
on this record, that the Government in any way controlled 
when it litigated a civil 
case against the defendant. As such, the Fifth Amendment does not apply. 
The defendant's claim further fails because without coercion or compulsion, there is no 
Fifth Amendment violation. See Minnesota v. Murphy, 465 U.S. 420, 431 (1984) (rejecting claim 
that a "failure to inform [the defendant] of the Fifth Amendment privilege barred use of his 
confession at trial"); United States v. Mitchell, 966 F.2d 92, 100 (2d Cir. 1992) ("Inculpatory 
statements are not involuntary when they result from a desire to cooperate, or from a defendant's 
ignorance of, or inattention to, his right to remain silent."); United States v. Mast, 735 F.2d 745, 
750 (2d Cir. 1984) (same). The defendant implicitly argues that she only testified under oath in 
the civil matter because she thought she would not be held to that oath. In other words, had she 
known that she would be subject to the penalties of perjury, she would have invoked her Fifth 
Amendment right. 
But the defendant's misguided expectation that she would face no 
consequences cannot be said to coerce speech. The defendant, represented by able counsel, 
voluntarily chose to waive her Fifth Amendment rights and testify under oath. And she chose to 
do so in connection with civil depositions that occurred over two years before the Government 
opened its investigation. The circumstances surrounding that decision comenowhere near the type 
of coercion that rises to the level of a Fifth Amendment violation. See, e.g., United States v. Ash, 
464 F. Supp. 3d 621, 627-30 (S.D.N.Y. 2020) (finding suppression of defendant's phone 
unwarranted where defendant complied with former employer's request to return the phone 
because defendant was not coerced into doing so, and rejecting defendant's argument that the 
100 
EFTA00100067

employer was required to warn her that it might produce the phone to the government, even 
assuming arguendo that that employer's actions were attributable to the government). 
The defendant's claim that her act of production privilege was somehow violated similarly 
fails. Counsel cites Boyd v. United States, 116 U.S. 616 (1886) for the proposition that "a 
compulsory production of the private books and papers .. . [also] is compelling. . . him to be a 
witness against himself, within the meaning of the fifth amendment." (Det. Mot. 11 at 15) (quoting 
Boyd, 116 U.S. at 634-35). In In re Grand Jury Subpoena Duces Tecum Dated Oct 29, 1992, the 
Second Circuit ruled that the Fifth Amendment does not protect the contents of private papers that 
are not business documents, and also noted that "[s]everal aspects of the Boyd decision did not 
endure." 1 F.3d at 90 (citingFisher v. United States,425 U.S. 391 (1976)). 
Further, the Fifth Amendment does not protect against being compelled to speak and then 
speaking falsely. "[E]ven if an individual's perjured testimony is improperly procured because of 
government misconduct, that testimony may still be used to prosecute that defendant for perjury." 
United States v. Olivieri, 740 F. Supp. 2d 423, 425 (S.D.N.Y. 2010) (citing United States v. 
Remington, 208 F.2d 567 (2d Cir. 1953); United States v. Winter, 348 F.2d 204 (2d Cir. 1965)); 
see also United States v. Wong, 431 U.S. 174, 180 (1977) ("[P]erjury is not a permissible way of 
objecting to the Government's questions... . Indeed, even if the Government could, on pain of 
criminal sanctions, compel an answer to its incriminating questions, a citizen is not at liberty to 
answer falsely."); Bryson v. United States, 396 U.S. 64, 72, 90 (1969) (rejecting challenge to false 
statement prosecution; "[l]t cannot be thought that as a general principle of our law a citizen has a 
privilege to answer fraudulently a question that the Government should not have asked. . . . A 
citizen may decline to answer the question, or answer it honestly, but he cannot with impunity 
knowingly and willfully answer with a falsehood."). 
101 
EFTA00100068

Contrary to the defendant's argument (Def. Mot. 11 at 16), this case is distinguishable from 
United States v. Oshatz, 700 F. Supp. 696 (S.D.N.Y. 1988). There, the defendant had already been 
indicted at the time of his deposition in a civil case, "was reluctant to be deposed because of the 
pending indictment, and he agreed only after the parties in the civil case stipulated that the 
deposition would be sealed." Id. at 699-700. The court found that the subpoenas for the deposition 
transcript were "unenforceable" because the "government has not argued that the protective order 
was improvidently granted or that there are some extraordinary circumstances or compell ing need, 
in view of the holding in Martindell."43 Id. at 701. The court found that the protective order sewed 
the "'vital function" described in Martindell, as the defendant had already been indicted at the 
time of his deposition in a civil case for almost seven months; the defendant "consistently resisted 
the use of his testimony in the criminal action against him"; and the Government did not seek the 
deposition "to aid it in a criminal investigation or grand jury proceeding." Id. at 700; see also 
Botha v. Don King Productions, Inc., No. 97 Civ. 7587 (JGK), 1998 WL 88745 (S.D.N.Y. Feb. 
27, 1998) (noting importance of policy concerns of Martindell where Government obtained an 
indictment against witness "long before his deposition in the civil action" and where federal 
criminal case remains pending after civil action is resolved). Here, by contrast, 
McMaho 
circumstances, 
As she noted in her i'no" In  
I.
trolling for eviden 
investigation or gran 
concluded, (Matz does not warrant a different result here. 
43 In Martindell, the Second Circuit explicitly deemed it "unnecessary for us to decide the Fifth 
Amendment issues raised by the parties." Martindell, 594 F.2d at 297. 
102 
EFTA00100069

The defendant argues that Martinderauthorized her to give deposition testimony under 
the shield of the Protective Order without worryingwhether the government could `insinuate itself' 
into the case and use her own words against her." (Def. Mot. 11 at 15-16). That is not the law, 
and the defendant cannot use the protective order to cloak her testimony. The Second Circuit has 
recognized that because "[i]t is well-settled here and elsewhere . . . that a Rule 26(c) protective 
order may be overturned or modified based on a finding of improvidence, extraordinary 
circumstances or compelling need[,]" "as a practical matter it is clear that the protections affonled 
by a Rule 26(c) order are not as extensive as those afforded by the fifth amendment, or by a 
statutory grant of use immunity, and that a protective order therefore cannot be used to abridge a 
witness' fifth amendment rights." Andover Data Set-vs., 876 F.2d at 1083 (emphasis in original); 
see id. at 1084 ("Uncertainty about the ultimate outcome of a protective order will mean that no 
deponent may always effectively rely on a protective order to secure his right against self-
incrimination.") (quoting In re Grand Jury Subpoena, 836 F.2d 1468, 1478 (4th Cir. 1988))); 
Davis, 702 F.2d at 421-22 ("Absent applicable grounds for exception, such as a previously asserted 
Fifth Amendment privilege, no shield protects the civil evidence [ ] from compellable production 
before the grand jury which subpoenaed it"). 
4. 
The Government Did Not Violate Maxwell's Due Process Rights 
The defendant also claims that the Government's conduct "cannot be squared with 
elemental due process." (Def. Mot. 3 at 14 (citing U.S. Const. amend. V)). This claim is meritless. 
Because there was no Government misconduct—let alone the type of outrageous Government 
103 
EFTA00100070

misconduct that would justify the extraordinary remedy the defendant seeks—the motion must be 
denied. 
a. 
Applicable Law 
The Due Process Clause of the Fifth Amendment provides that "[n]o person . . shall be 
deprived of life, liberty, or property without due process of law . . . ." The Due Process Clause 
"protects individuals against two types of government action." Martinez v. McAleenan, 385 F. 
Supp. 3d 349, 356 (S.D.N.Y. 2019). Procedural due process "ensures that government cannot 
unfairly and without meaningful process deprive a person of life, liberty, or property," while 
substantive due process "prevents the government from engaging in conduct that shocks the 
conscience, or interferes with rights implicit in the concept of ordered liberty." Id. (internal 
quotation marks and citations omitted; alteration omitted). 
Procedural due process analysis focuses on whether"government action depriving a person 
of life, liberty, or property. . . [is] implemented in a fair manner," United States v. Salerno, 481 
U.S. 739, 746 (1987). "Courts examine procedural due process questions in two steps: the first 
asks whether there exists a liberty or property interest which has been interfered with by the 
[Government]; the second examines whether the procedures attendant upon that deprivation were 
constitutionally sufficient." United States v. Arzberger, 592 F. Supp. 2d 590,599 (S.D.N.Y. 2008) 
(internal quotation marks and citations omitted). 
As to substantive due process, the Supreme Court is "always . . . reluctant to expand the 
concept of substantive due process because guideposts for responsible decisionmaking in this 
unchartered area are scarce and open-ended." Washington v. Glucksberg, 521 U.S. 702, 720 
(1997) (internal quotation marks and citation omitted). Because of this reluctance, the Supreme 
Court held in Graham v. Connor, 490 U.S. 386 (1989), "that where a particular Amendment 
provides an explicit textual source of constitutional protection against a particular sort of 
104 
EFTA00100071

government behavior, that Amendment, not the more generalized notion of substantive due 
process, must be the guide for analyzing these claims." County of Sacramento v. Lewis, 523 U.S. 
833, 842 (1998) (internal quotation marks omitted); Albright v. Oliver, 510 U.S. 266, 272 (1993) 
("[t]he protections of substantive due process have for the most part been accorded to matters 
relating to marriage, family, procreation, and the right to bodily integrity."). 
The defendant bears the "'very heavy' burden of establishing a due process violation." 
United States v. Walters, 910 F.3d 11, 27 (2d Cir. 2018). "To succeed on a claim that the 
government's conduct in pursuit of evidence violates a defendant's Fifth Amendment due process 
rights, the government's method of acquiring the evidence must be so egregious that it `shocks the 
conscience.'" United States v. Loera, 333 F. Supp. 3d 172, 184 (E.D.N.Y. 2018) (internal 
quotation marks and citations omitted). "The concept of fairness embodied in the Fifth 
Amendment due process guarantee is violated by government action that is fundamentally unfair 
or shocking to our traditional sense of justice, or conduct that is 'so outrageous' that common 
notions of fairness and decency would be offended were judicial processes invoked to obtain a 
conviction against the accused." United States v. Schmidt, 105 F.3d 82,91 (2d Cir. 1997) (internal 
quotation marks and citations omitted). "Such outrageous or conscience shocking behavior 
involves egregious invasions of individual rights, or coercion." United States v. Coke, No. 07 Cr. 
971 (RPP), 2011 WL 3738969, at *5 (S.D.N.Y. Aug. 22, 2011) (internal quotation marks and 
citations omitted). The Second Circuit has explained: 
The paradigm examples of conscience-shocking conduct am 
egregious invasions of individual rights. See, e.g., Rochin, 342 U.S. 
at 172, 72 S. Ct. 205 (breaking into suspect's bedroom, forcibly 
attempting to pull capsules from his throat, and pumping his 
stomach without his consent). Especially in view of the courts' 
well-established deference to the Government's choice of 
investigatory methods, see United States v. Myers, 692 F.2d 823, 
843 (2d Cir. 1982), the burden of establishing outrageous 
105 
EFTA00100072

investigatory conduct is very heavy, see United States v. Schmidt, 
105 F.3d 82, 91 (2d Cir. 1997). 
United States v. Rahman, 189 F.3d 88, 131 (2d Cir. 1999); United States v. Al Kassar, 660 F.3d 
108, 121 (2d Cir. 2011) ("Generally, to be `outrageous,' the government's involvement in a crime 
must involve either coercion or a violation of the defendant's person. It does not suffice to show 
that the government created the opportunity for the offense, even if the government's ploy is 
elaborate and the engagement with the defendant is extensive." (internal citations omitted)). The 
Second Circuit has "yet to identify a particular set of circumstances in which government 
investigative conduct was so egregious that it shocked the conscience and violated fundamental 
guarantees of due process." United States v. Heyward, No. 10 Cr. 84 (LTS), 2010 WL 4484642, 
at *3 (S.D.N.Y. Nov. 9, 2010); see also United States v. Cromitie, 727 F.3d 194, 218 (2d Cir. 
2019). 
There also "must be a causal connection between the violation and the deprivation of the 
defendant's life or liberty threatened by the prosecution." United States v. Ghailani, 751 F. Supp. 
2d 502, 505 (S.D.N.Y. 2010). "That is to say, relief against the government in a criminal case is 
appropriate if, and only if, a conviction otherwise would be a product of the government 
misconduct that violated the Due Process Clause." Id. 
Even where Government misconduct meets the outrageousness test, dismissal of an 
indictment is warranted only where the Government's behavior "resulted in [] prejudice to the 
[defendant's] defense or legal representation." United States v. DiGregorio, 795 F. Supp. 630, 
635 (S.D.N.Y. 1992). Absent a showing of prejudice, the appropriate remedy for conduct violating 
the test for outrageousness is suppression of the evidence obtained as the result of the 
Government's outrageous misconduct. Id. 
106 
EFTA00100073

b. 
Discussion 
The defendant argues that the Due Process Clause requires the suppression of the evidence 
the Government obtained pursuant to subpoena, including the 
and the dismissal of Counts Five and Six. The defendant falls far short of carrying the very heavy 
burden of establishing a due process violation to warrant the extraordinary relief she seeks. The 
Government's conduct did not, by any reasonable definition,"shock the conscience." 
The defendant has not identified explicitly the component of her due process rights that the 
Government allegedly violated. As she does not seem to allege that the Government deprived her 
of life, liberty, or property in an unfair manner (nor could she), it seems that the defendant is 
claiming that the Government's supposed misrepresentation of facts to the Court violated her 
substantive due process rights. As set forth above, the Government did not mislead 
in connection with its ex pane application. The Government did not violate the law, 
much less participate in any violation that so "shocks the conscience" as to require suppression as 
a matter of substantive due process. 
The defendant has neither specified what "fundamental right" the Government allegedly 
violated nor provided legal authority supporting her claim. She cites United States v. Valentine, 
820 F.2d 565,570 (2d Cir. 1987), seemingly to argue that her right to a fair trial has been implicated 
because of the same alleged prosecutorial misconduct in connection with the modification of the 
protective order described above. However, the defendant cites no authority for the proposition 
that such misconduct (assuming, of course, it occurred, which it did not) would warrant the relief 
she now seeks, and the primary case she relies upon is readily distinguishable. In Valentine, the 
defendant was convicted of perjury based upon grand jury testimony in which he denied that he 
was given a loan to make a political contribution. 820 F.2d at 570. The Second Circuit reversed 
107 
EFTA00100074

and held that it was a due process violation for the prosecutor to suggest that certain witnesses, 
who had not testified at trial but who had testified before the grand jury, supported the 
Government's theory of the case, when in fact their testimony before the grand jury did not. Id. 
The Second Circuit stated that this action "violated the due process prohibition against a 
prosecutor's making `knowing use of false evidence,' including by misrepresenting the nature of 
nontestimonial evidence." Id. at 570-71 (quoting Miller v. Pate, 386 U.S. 1, 6-7 (1967)). The 
Second Circuit further noted that reversal of a criminal conviction is a "drastic remedy that courts 
are generally reluctant to implement," and that the court would only do so "when a prosecutor's 
tactics cause substantial prejudice to the defendant and thereby serve to deprive him of his right to 
a fair trial." Id. 
The instant case is easily distinguishable from Valentine, as it does not involve any of the 
same facts, including any alleged mischaracterization of grand jury testimony at trial or any 
prosecutor making "knowing use of false evidence." Id. at 570-71; see also Mills v. Scully, 826 
F.2d 1192, 1195 (2d Cir. 1987) (citing Valentine for the proposition that "[e]ven where defense 
counsel is aware of the falsity, there may be a deprivation of due process if the prosecutor 
reinforces the deception by capitalizing on it in closing argument, or by posing misleading 
questions to the witnesses" (citations omitted)). "Prosecutorial misconduct denies a defendant due 
process only when it is `of sufficient significance to result in the denial of the defendant's right to 
a fair trial.'" Blissett v. Lefevre, 924 F.2d 434, 440 (2d Cir. 1991) (quoting Greer v. Miller, 483 
U.S. 756, 765 (1987)). 
The defendant has otherwise failed to identify how she has been deprived of the right to a 
fair trial. A jury will hear testimony about the defendant's statements during her April and July 
2016 depositions, along with other evidence, and determine if her statements were perjurious. 
108 
EFTA00100075

"While the Constitution guarantees a fair trial through the Due Process Clauses .. . it defines the 
basic elements of a fair trial largely through the several provisions of the Sixth Amendment."' 
Cap/in & Drysdale, Chartered v. UnitedStates, 491 U.S. 617, 633 (1989) (citations omitted). 'The 
right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity 
to defend against the State's accusations. The rights to confront and cross-examine witnesses and 
to call witnesses in one's own behalf have long been recognized as essential to due process." 
Chambers v. Mississippi, 410 U.S. 284, 294 (1973). And as noted, the defendant cites no legal 
authority supporting the proposition that the Government's actions during its investigation have 
somehow deprived her of a fair trial or otherwise violated her due process rights. In short, none 
of Maxwell's allegations of misconduct rises to the level of a due process violation. 
Dismissal of Counts Five and Six of the Indictment would be all the more unwarranted 
here, where there was no outrageous Government misconduct and where the defendant cannot 
show that the Government's behavior prejudiced her defense or legal representation. Similarly, 
because there was no misconduct by the Government, there is no basis to suppress the evidence 
obtained pursuant to the subpoena. The defendant's motion—unsupported by the law and the 
facts-must be denied. 
5. 
The Court Should Not Exercise Its Inherent Authority to Order 
Suppression 
The defendant urges the Court to exercise its inherent authority to order suppression. This 
Court should decline the defendant's invitation to exercise this sparingly used power. 
a. 
Applicable Law 
"[T]he Supreme Court has recognized three purposes for the supervisory powers, `to 
implement a remedy for violation of recognized rights, to preserve judicial integrity by ensuring 
that a conviction rests on appropriate considerations validly before a jury, and finally, as a remedy 
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designed to deter illegal conduct.' Coke, 2011 WL 3738969, at *6 (quoting United States v. 
Hastings, 461 U.S. 499, 505 (1983)). "However, while there are times when a district court may 
properly find it absolutely necessary[, in order] to preserve the integrity of the criminal justice 
system, to suppress evidence under its inherent or supervisory authority, 'the Supreme Court has 
explained that a court's inherent power to refuse to receive material evidence is a power that must 
be sparinglyexercised [only in cases of] manifestly improper conductby federal officials." United 
States v. Lambus, 897 F.3d 368, 401 (2d Cir. 2018) (alterations and emphasis in original) (internal 
quotations and citations omitted). The Second Circuit has "'recognized that courts cannot fashion 
their own sub-constitutional limitations on the conduct of law enforcement agents." Id. (quoting 
United States v. Ming He, 94 F.3d 782, 792 (2d Cir. 1996)); see also United States v. Myers, 692 
F.2d 823, 847 (2d Cir. 1982). "Accordingly, the court should not exercise its inherent or 
supervisory power 'as a substitute for Fourth Amendment jurisprudence, which adequately 
safeguards against unlawful searches and seizures.' Lambus, 897 F.3d at 401 (quoting Ming He, 
94 F.3d at 792); see also United States v. Payner, 447 U.S. 727, 737 (1980) ("the supervisory 
power does not extend so far" as to "confer on the judiciary discretionary power to disregard the 
considered limitations of the law it is charged with enforcing"). 
b. 
Discussion 
By asking the Court to exercise its inherent authority, the defendant apparently means to 
suggest that the Court should grant the relief she seeks, even if she has failedto establish a violation 
of the Constitution or other governing law. The defendant fails to provide justification for the 
extraordinary remedy of suppression or to cite persuasive case law in favor of such an 
extraordinary use of the Court's inherent authority. 
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The law is clear that a district court's supervisory authority does not extend to suppressing 
evidence absent some violation of the Constitution or other governing law. See Payner,447 U.S. 
at 737 (holding that "the supervisory power does not extend" to "disregard[ing] the considered 
limitations of the law it is charged with enforcing"); United States v. Anderson, 772 F.3d 969, 976 
(2d Cir. 2014) (same); United States v. Jennings, 960 F.2d 1488, 1491 (9th Cir. 1992) ("Absent a 
violation of a recognized right under the Constitution, a statute, or a procedural rule, a district coutt 
is not entitled to exclude evidence as a sanction against government practices disapproved of by 
the court."). The requirements established by the Supreme Court and the Second Circuit for 
suppressing evidence would have little effect if district courts were free to disregard them and 
suppress evidence by invoking their supervisory authority. Consistent with that principle, and 
given that this power is "sparingly exercised," Iambus, 897 F.3d at 401, (emphasis in original), 
this Court should not elect to do so here where the defendant has not established a violation of her 
Fourth Amendment, Fifth Amendment, or due process rights. See, e.g., id. at 401-02 ("We can 
appreciate the district court's frustration at careless government representations that may impact 
the integrity of judicial decisions, especially proffers in support of ex parte applications that an 
adversary has no opportunity to dispute[,]" but finding that the district court erred in suppressing 
evidence by invoking its inherent authority); Coke, 2011 WL 3738969, at *6 (declining to exercise 
its supervisory powers to suppress wiretap evidence and finding defendant "has no Fourth 
Amendment right, and the novel substantive due process right he asks this Court to create cannot 
be described as a recognized right." (internal citations omitted)). 
6. 
The Defendant Is Not Entitled to a Hearing 
The defendant argues that if the Court is "disinclined" to grant the extraordinary relief of 
suppression she seeks, she is entitled to an evidentiary hearing to probe the Government's 
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"misstatements" to 
SDNY and 
and the extent of coordination between the USAO-
prior to the issuance of the subpoena. (Def. Mot. 3 at 16). With respect 
to that alleged "misconduct," the defendant appears to makes two general accusations: first, that 
in 2016 Boies Schiller encouraged the USAO-SDNY to investigate the defendant for perjury, and 
second, that the Government's statement to 
was false. Neither is correct, for the reasons described above. 
Because the defendant has proffered no reliable evidence to support any of the accusations 
contained in her motion papers, and because the Government has responded to those accusations 
with AUSA-1's contemporaneous notes of the February 29, 2016 meeting and notes from an 
interview of AUSA-1 conducted by the USAO-SDNY and the FBI (see Exs. 4 & 5), as well as 
relevant AUSA-1 emails (Exs. 6 & 7), such a hearing is not warranted. 
a. 
Applicable Law 
"[E]videntiary hearings should not be set as a matter of course, but only when the petition 
alleges facts which if proved would require the grant of relief." Grant v. United States, 282 F2d 
165, 170 (2d Cir. 1960). "In order to make the requisite showing in sufficient detail, the defendant 
must submit an affidavit by someone with personal knowledge that disputed facts exist." United 
States v. Noble, No. 07 Cr. 284 (RJS), 2008 WL 140966, at *1 (S.D.N.Y. Jan. 11, 2008). "In the 
absence of such an affidavit, or when the allegations contained in such an affidavit are general and 
conclusory, an evidentiary hearing is unnecessary." United States v. Dewar, 489 F. Supp. 2d 351, 
359 (S.D.N.Y. 2007). A district court may decide the motion without a hearing if the moving 
papers do not create a genuine issue as to any material fact. United States v. Carving, 968 F.2d 
232, 236 (2d Cir. 1992), abrogated on other grounds by Ratzlaf v. United States, 510 U.S. 135 
(1994. Moreover, it is well settled that a material issue of fact sufficient to justify an evidentiary 
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hearing requires "an affidavit of someone with personal knowledge of the underlying facts?' 
United States v. Shaw, 260 F. Supp. 2d 567,570 (E.D.N.Y. 2003); see also United States v. Gillette, 
383 F.2d 843, 848 (2d Cir. 1967); United States v. Ahmad, 992 F. Supp. 682, 685 (S.D.N.Y. 1998) 
("ordinarily [a factual issue must be] raised by an affidavit of a person with personal knowledge 
of the facts;" otherwise "there is no basis for holding an evidentiary hearing or suppressing the 
evidence"). 
The defendant's allegations are analogous to those raised when evaluating defendants' 
claims of Government Franks violations. To obtain a Franks hearing, a defendant must make a 
"substantial preliminary showing," United States v. Falso, 544 F.3d 110, 125 (2d Cir. 2008) 
(quoting Franks v. Delaware, 438 U.S. 154, 155-56 (1978)), that (i) there were "inaccuracies or 
omissions" in the affidavit, (ii) "the alleged falsehoods or omissions were necessary to the issuing 
judge's probable cause or necessity finding," and (iii) "the claimed inaccuracies or omissions 
[were] the result of the affiant's deliberate falsehood or reckless disregard for the truth." Lambus, 
897 F.3d at 397; see also United States v. Awadallah, 349 F.3d 42, 64 (2d Cir. 2003). Even if a 
defendant clears the firstFranks hurdle with a substantial preliminary showingof a false statement 
or omission, the defendant is not entitled to a Franks hearing unless a reviewing court makes the 
legal determination that the false statement or omission was "necessary to the [issuing] judge's 
probable cause finding." United States v. Canfield, 212 F.3d 713,718 (2d Cir. 2000). 
To determine whether alleged errors and omissions are material, a court should revise the 
affidavit (adding alleged omissions and correcting alleged errors), and determine whether the 
revised affidavit supports a finding of probable cause. See, e.g., Canfield, 212 F.3d at 719. If the 
revised affidavit supports a probable cause finding, then "the inaccuracies were not material to the 
probable cause determination and suppression is inappropriate." Id. at 718. After adding the 
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