EFTA00103758

a non-prosecution agreement with another district would be a miscarriage of justice. See United 
States v. Caner, 454 F.2d 426, 427-28 (4th Cir. 1972) (federally prosecuting defendant a second 
time for the same charges previously resolved by a plea agreement with a different federal 
district puts at stake "the honor of the government[,] public confidence in the fair administration 
of justice, and the efficient administration of justice in a federal scheme of government"); 
Gebbie, 294 F.3d at 550 ("United States Attorneys should not be viewed as sovereigns of 
autonomous fiefdoms. They represent the United States, and their promises on behalf of the 
Government must bind each other absent express contractual limitations or disavowals to the 
contrary."). For these reasons, the NPA bars the USAO-SDNY from prosecuting Ms. Maxwell 
for the offenses charged in Counts Five and Six of the S2 Indictment. They must therefore be 
dismissed. 
C. 
Counts One and Three Must Also Be Dismissed. 
Because Counts Five and Six must be dismissed, the expanded Mann Act conspiracies 
charged in Counts One and Three must also be dismissed. In the S1 Indictment, the conspiracies 
charged in Counts One and Three were confined to a four-year period from 1994-1997, which 
the Court found was not covered by the NPA. (Dkt. 207 at 6-7). In the S2 Indictment, by 
contrast, the conspiracies charged in Counts One and Three cover a much broader timeframe 
from 1994-2004 because they incorporate the same conduct from 2001-2004 involving Accuser-
4 charged in Counts Five and Six. As previously discussed, the NPA bars the government from 
prosecuting Ms. Maxwell for these offenses. Hence, as currently charged, the government could 
offer inadmissible evidence excluded by the NPA as proof of Counts One and Three. It would 
be impermissible for the jury to consider such evidence in connection with Counts One and 
Three and any guilty verdict based on proof related to Accuser-4, or any other conduct covered 
by the NPA, might require reversal. See United States v. Rooney, 37 F.3d 847, 855-56 (2d Cir. 
17 
EFTA00103778

1994) (reversal of conviction may be required due to "prejudicial spillover" in cases in which the 
jury relies on inadmissible evidence related to an invalidated count to convict on the remaining 
counts). Accordingly, the Court must dismiss Counts One and Three as well. 
H. 
Prosecuting Ms. Maxwell on Counts Five and Six Would Violate Her Rights Under 
the Double Jeopardy Clause. 
Prosecuting Ms. Maxwell on Counts Five and Six would also violate her rights under the 
Double Jeopardy Clause. The Double Jeopardy Clause provides that no person shall "be subject 
for the same offence to be twice put in jeopardy of life or limb." U.S. Const., Amend. V. The 
Clause protects criminal defendants against "a second prosecution for the same offense after 
acquittal," "a second prosecution for the same offense after conviction," and "multiple 
punishments for the same offense." United States v. Lopez, 356 F.3d 463, 467 (2d Cir. 2004) 
(quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969) overruled on other grounds by 
Alabama v. Smith, 490 U.S. 794 (1989)). The Supreme Court first established the principle that 
the Double Jeopardy Clause protects against multiple punishments for the same offense almost 
150 years ago in Ex Parte Lange, 85 U.S. (18 Wall.) 163 (1873), and it is equally important as 
the protection against a successive prosecution for the same offense. 
If there is anything settled in the jurisprudence of England and 
America, it is that no man can be twice lawfully punished for the 
same offence. And ... there has never been any doubt of (this 
rule's) entire and complete protection of the party when a second 
punishment is proposed in the same court, on the same facts, for 
the same statutory offense. 
(T)he Constitution was designed as much to prevent the 
criminal from being twice punished for the same offense as from 
being twice tried for it. 
Pearce, 395 U.S. at 717-18 (quoting Lange, 85 U.S. (18 Wall.) at 168) (emphasis added). 
Here, it is beyond dispute that Epstein was already punished for the offenses covered by 
the NPA. The NPA states that, in return for an agreement not to prosecute him for the offenses 
18 
EFTA00103779

specified in the NPA, Epstein had to fulfill a series of terms and conditions. These included: (1) 
pleading guilty in Florida state court to one count of solicitation of prostitution and one count of 
solicitation of minors to engage in prostitution, (2) registering as a federal sex offender, (3) 
paying for an attorney to represent his victims to sue him for personal injuries, and (4) waiving 
his right to contest any damages awarded in those lawsuits up to an agreed-upon amount. (Ex. B 
at 2-5 of 7). One of the government's "key objectives" in the NPA was "to preserve a federal 
remedy" for Epstein's alleged victims. (Ex. D ¶ 5). Epstein fully performed these conditions 
and paid over $12.5 million in settlements to multiple alleged victims. (Ex. H). Indeed, Epstein 
paid $446,000 to the person we believe to be Accuser-4 and her attorneys. (Id.; Ex. I). 
The USAO-SDNY cannot now seek additional punishment for the same offenses that 
were resolved by the NPA. Courts employ different tests to determine whether two offenses are 
the same for Double Jeopardy purposes. To determine whether a successive conspiracy 
prosecution is distinct from a previous conspiracy prosecution charged under the same statute, 
courts evaluate the so-called Korfant factors; namely: 
(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. 
Lopez, 356 F.3d at 468 (quoting United States v. Korfant, 771 F.2d 660, 662 (2d Cir.1985) (per 
curiam)). "[I]f a defendant makes a non-frivolous showing that two indictments in fact charge 
only one conspiracy, the burden shifts to the prosecution to show, by a preponderance of the 
19 
EFTA00103780

evidence, that there are in fact two distinct conspiracies and that the defendant is not being 
placed in jeopardy twice for the same crime." Id. at 467 (citations omitted). 
As previously discussed, it is clear from the grand jury testimony that Counts Five and 
Six of the S2 Indictment charge the same offenses based on the same allegations of Accuser-4 
that were presented to the SDFL grand jury and formed the basis for a conspiracy count and a 
substantive sex trafficking count in the proposed SDFL indictment. (See Section I supra). The 
government cannot make a contrary showing. Accordingly, prosecuting Epstein for Counts Five 
and Six would violate the Double Jeopardy Clause. And because Epstein negotiated immunity 
for Ms. Maxwell and any other "potential co-conspirators" as part of the terms of the NPA, Ms. 
Maxwell cannot be prosecuted for those crimes either. See United States v. Cambindo Valencia, 
609 F.2d 603, 637 (2d Cir. 1979) ("If [the defendant's] earlier plea is found to bar prosecution of 
him because of double jeopardy, since concededly the plea included an agreement to drop the 
charges against [his wife], the instant prosecution of [his wife] will also be barred."). Counts 
Five and Six of the S2 Indictment must therefore be dismissed. 
III. 
Counts Five and Six Are Time-Barred. 
Counts Five and Six should also be dismissed because they are time-barred by the 
applicable five-year statute of limitations under 18 U.S.C. § 3282. In its previous motions 
related to the SI Indictment, the government asserted that the Mann Act counts (Counts One 
through Four) are timely because they are governed by 18 U.S.C. § 3283, which was amended in 
2003 to extend the limitations period for "offense[s] involving the sexual or physical abuse ... of 
a child under the age of 18 years" to "during the life of the child." (Dkt. 204 at 24-26, 36-41). 
Ms. Maxwell argued that 18 U.S.C. § 3283 did not apply to the Mann Act offenses because they 
do not "necessarily entail" the sexual abuse of a minor and therefore are not "offense[s] 
involving" such conduct. (Dkt. 144 at 12-17; Dkt. 206 at 10-15). The Court ruled in favor of the 
20 
EFTA00103781

government. (Dkt. 207 at 9-13). Ms. Maxwell nevertheless preserves her argument and reasserts 
it with respect to Counts Five and Six of the S2 Indictment. 
As it existed in 2004, the federal sex trafficking statute, 18 U.S.C. § 1591, charged in 
Counts Five and Six of the S2 Indictment provided that "[w]hoever knowingly ... recruits, 
entices, harbors, transports, provides, or obtains by any means a person ... knowing that ... the 
person has not attained the age of 18 years and will be caused to engage in a commercial sex act" 
is guilty of a crime." 18 U.S.C. § 1591(a) (2004). Because the statute uses the phrase "will be 
caused" before the phrase "to engage in a commercial sex act," it is not necessary for the 
commercial sex act to take place for the crime to be complete. See United States v. Garcia-
Gonzalez, 714 F.3d 306, 312 (5th Cir. 2013) ("The future verb tense of the phrase `will be 
caused'—which precedes `to engage in a commercial sex ace"—indicates that a sex act does not 
have to occur to satisfy the elements of the child-sex-trafficking offense."). For the reasons 
already set forth in Ms. Maxwell's previous motion, the statute of limitations in 18 U.S.C. § 
3283 does not govern 18 U.S.C. § 1591 because the offense does not "necessarily entail" the 
sexual abuse of a minor and therefore is not an "offense involving" such conduct. Counts Five 
and Six must therefore be dismissed. 
IV. 
The Court Should Dismiss Count Five and Either Count One or Count Three as 
Multiplicitous. 
Count Five must also be dismissed along with either Count One or Count Three as 
multiplicitous. In her previous motions, Ms. Maxwell argued that the Court should dismiss 
either Count One or Count Three of the S1 Indictment as multiplicitous because they charged the 
same conspiracy under 18 U.S.C. § 371. (Dkt. 122, 210). Count Five of the S2 Indictment 
charges Ms. Maxwell with yet another § 371 conspiracy from 2001-2004 based on the 
allegations of Accuser-4. (S2 Indictment ¶¶ 22-25). These same allegations are fully 
21 
EFTA00103782

incorporated into the broader Mann Act conspiracies charged in Counts One and Three. (Id. ¶¶ 
1-9, 11-13, 16-19). For the same reasons discussed in her prior motion, the Court should dismiss 
Count Five and either Count One or Count Three as multiplicitous. 
V. 
The Court Should Dismiss the S2 Indictment for Pre-Indictment Delay. 
The Court should also dismiss the S2 indictment due to the government's excessive and 
prejudicial delay in bringing this prosecution against Ms. Maxwell in violation of her due 
process rights. In her previous motions, Ms. Maxwell argued that the Court should dismiss the 
S 1 Indictment due to the excessive pre-indictment delay in charging her with those offenses. 
(Dkt. 138, 209). The S2 Indictment only compounds these issues by charging additional 
offenses based on alleged conduct that the government has known about since in or about 2007, 
which it added for tactical reasons to shore up its case against Ms. Maxwell. For the same 
reasons discussed in her prior motion, the Court should dismiss the S2 Indictment. The Court 
denied Ms. Maxwell's initial motion on these grounds, but preserved Ms. Maxwell's ability to 
renew her motion after trial. (Dkt. 207 at 18). Accordingly, we request that the Court defer 
consideration of this motion until trial. 
VI. 
The Court Should Order a Bill of Particulars as to Counts Five and Six. 
The Court should also order the government to file a Bill of Particulars pursuant to Rule 
7(0 of the Federal Rules of Criminal Procedure because Counts Five and Six of the S2 
Indictment do not sufficiently inform her of the nature of the charges against her. Rule 7(f) 
permits a defendant to seek a bill of particulars "in order to identify with sufficient particularity 
the nature of the charge pending against him, thereby enabling defendant to prepare for trial, to 
prevent surprise, and to interpose a plea of double jeopardy should he be prosecuted a second 
time for the same offense." United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987). 
Counts Five and Six allege conduct that purportedly occurred over the course of a broad four-
22 
EFTA00103783

time period from 2001-2004. The counts do not specify, however, the dates that any of this 
alleged conduct occurred. For example, the S2 Indictment does not specify when Ms. Maxwell 
"interacted" with Accuser-4 or allegedly "recruited" her "to engage in sex acts with Epstein" or 
"enticed" her "to recruit other girls to engage in paid sex acts with Epstein." (S2 Indictment ¶¶ 
9d, 25a, 25b). Nor does the S2 Indictment specify when Ms. Maxwell allegedly paid Accuser-4 
or sent her gifts or called her to schedule massage appointments. (Id. ¶¶ 9d, 25c, 25d). A Bill of 
Particulars for Counts Five and Six is therefore necessary and appropriate. See Bortnovsky, 820 
F.2d at 575 (Bill of Particulars warranted where "[t]he relevance of key events was shrouded in 
mystery at the commencement of and throughout the trial"). Id. at 575. 
Furthermore, as discussed above, Ms. Maxwell has already credibly asserted that her 
prosecution on Counts Five and Six is barred by the Double Jeopardy Clause. (See Section II 
supra). In order "to interpose [her] plea of double jeopardy," Ms. Maxwell must confirm what is 
apparent from the grand jury testimony of Special Agent Kuyrkendall — that the offenses charged 
in Counts Five and Six are the same offenses that were presented to the SDFL grand jury. 
Accordingly, for these reasons and the reasons already discussed in our previous motion 
for a Bill of Particulars, the Court should order the government to file a Bill of Particulars 
identifying the following information related to Counts Five and Six of the S2 Indictment: 
(1) 
The dates when Ms. Maxwell allegedly met and/or interacted with 
Accuser-4. (S2 Indictment ¶ 9d). 
(2) 
The dates when Ms. Maxwell allegedly "groomed" or "recruited" 
Accuser-4 "to engage in sex acts with Epstein." (Id. ¶¶ 9d, 25a). 
(3) 
The dates when Accuser-4 allegedly provided "nude massages" to Epstein, 
during which Epstein "engaged in multiple sex acts" with Accuser-4. (Id. 
¶ 9d). 
(4) 
The dates when Ms. Maxwell allegedly was "present" when [Accuser-4] 
"was nude in the massage room of the Palm Beach Residence." (Id. ¶ 9d). 
23 
EFTA00103784

(5) 
The dates when, and locations where, Ms. Maxwell allegedly paid 
Accuser-4 "hundreds of dollars in cash." (Id. 99 9d, 25a). 
(6) 
The dates when, and locations where, Ms. Maxwell allegedly "encouraged 
[Accuser-4] to recruit other young females to provide sexualized massages 
to Epstein." (Id. ¶¶ 9d, 25b). 
(7) 
The dates when, and locations where, Ms. Maxwell allegedly "invited 
[Accuser-4] to travel with Epstein" and "offered to assist [Accuser-4] with 
obtaining a passport for purposes of such travel." (ld.1 9d). 
(8) 
The dates when, and locations where, Ms. Maxwell allegedly "sent 
[Accuser-4] gifts." (Id.11 9d, 25c). 
(9) 
The dates when, and locations where, Ms. Maxwell allegedly called 
Accuser-4 "to schedule appointment for [Accuser-4] to massage Epstein." 
(Id. ¶¶ 9d, 25d). 
(10) 
The dates when the conspiracy charged in Count Five began and ended. 
(ki.1 23). 
(11) 
The identities of the "others" who allegedly participated in the conspiracy 
charged in Count Five with Epstein and Ms. Maxwell. (Id. ¶¶ 23-24). 
(12) 
The identities of any individuals who were enticed to travel, or were 
transported, in interstate or foreign commerce to engage in illegal sexual 
activity with Epstein during the time period of the charged Mann Act 
conspiracies (1994-2004), apart from Minor Victims-l-4. (Id.
 13, 19). 
VII. 
The Court Should Order the Government to Produce Accuser-4's Prior Statements 
as Bradt, Material. 
As explained above, it is apparent from the non-testifying witness material, which the 
government produced just a few weeks ago on April 13, 2021, that Accuser-4 has only recently 
included Ms. Maxwell in her allegations of sexual abuse. In her summary of Accuser-4's 
allegations that she gave to the SDFL grand jury on March 18, 2008, Special Agent Kuyrkendall 
made no mention of Ms. Maxwell, indicating that Accuser-4 never discussed Ms. Maxwell when 
the FBI interviewed her in connection with the Florida Investigation. Indeed, it is clear from the 
grand jury testimony that Accuser-4 implicated Sarah Kellen, not Ms. Maxwell. Only now, 13 
years after she first reported these events to the Palm Beach FBI and several months after Ms. 
24 
EFTA00103785

Maxwell had been indicted and publicly vilified in the press as Epstein's primary accomplice, 
did Accuser-4 suddenly allege for the very first time that Ms. Maxwell was involved in Epstein's 
sexual abuse. Accuser-4 now claims that Ms. Maxwell, among other things, "groomed" her to 
engage in sexualized massages with Epstein, encouraged her to recruit others to do the same, and 
was present when Accuser-4 was nude in the massage room of the Palm Beach Residence. (S2 
Indictment ¶ 9d). Had Ms. Maxwell, in fact, done the things that Accuser-4 now accuses her of 
doing, Accuser-4 certainly would have mentioned it to the FBI and those allegations would have 
been part of the SDFL grand jury presentation. Ms. Maxwell surely would have been named as a 
co-conspirator in the proposed 60-count indictment like Kellen. That never happened. (See Ex. 
A, OPR Report at 167 (internal quotations omitted)) (USAO-SDFL never found "any specific 
evidence against" Ms. Maxwell related to the subject of the investigation). 
An informed witness who fails to mention the defendant when making a report to law 
enforcement is exculpatory under Brady. United States v. Torres, 719 F.2d 549, 555-56 (2d Cir. 
1983); Jones v. Jago, 575 F.2d 1164, 1168 (6th Cir. 1978); Clemmons v. Delo, 124 F.3d 944, 952 
(8th Cir. 1997); White v. Helling, 194 F.3d 937, 944 (8th Cir. 1999). Accordingly, Accuser-4's 
prior statements to the FBI, and any other prior statements in which she did not mention Ms. 
Maxwell, are exculpatory Brady material that the government must immediately produce to the 
defense. As the Court ruled: 
The Government must disclose to the defense all information `favorable to an 
accused' that is 'material either to guilt or to punishment' and that is known to the 
Government. . . The Government shall disclose such information to the defense 
promptly after its existence becomes known to the Government so that the defense 
may make effective use of the information in the preparation of its case. 
(Dkt. 68 at 1) (emphasis added). 
25 
EFTA00103786

VIII. Ms. Maxwell Incorporates All of the Arguments Raised in Her Initial Pretrial 
Motions and Reasserts Them as to the S2 Indictment. 
To the extent she has not already done so, Ms. Maxwell incorporates by reference all of 
the arguments she raised in her pretrial motions related to the SI Indictment and reasserts them 
here with respect to the S2 Indictment.9 For the reasons set forth in those motions, the Court 
should grant the requested relief as to the S2 Indictment. 
CONCLUSION 
For the foregoing reasons, Ms. Maxwell respectfully requests that the Court (1) dismiss 
Counts One, Three, Five, and Six of the S2 Indictment for breach of the NPA, (2) dismiss Counts 
Five and Six of the S2 Indictment for violation of Ms. Maxwell's rights under the Double 
Jeopardy Clause, and (3) grant her other requested relief. 
Dated: May 7, 2021 
New York, New York 
Respectfully submitted, 
Is/ Christian R. Everdell 
Christian R. Everdell 
COHEN & GRESSER LLP 
800 Third Avenue 
New York, NY 10022 
Phone: 
Jeffrey S. Pagliuca 
Laura A. Menninger 
HADDON, MORGAN & FOREMAN P.C. 
150 East 10th Avenue 
Denver, Colorado 80203 
Phone: 
9 We exclude the arguments raised in the Motion to Dismiss the Superseding Indictment as It Was Obtained in 
Violation of the Sixth Amendment (Dkt. 126, 211), as Ms. Maxwell has conceded that the S2 Indictment renders 
these claims moot. (Dkt 225). 
26 
EFTA00103787

Bobbi C. Stemheim 
Law Offices of Bobbi C. Stemheim 
33 West 19th Street - 4th Floor 
New York, NY 10011 
Phone: 
Attorneys for Ghislaine Maxwell 
27 
EFTA00103788

CERTIFICATE OF SERVICE 
I hereby certify that on May 7, 2021, I served by email, pursuant Rule 2(B) of the Court's 
individual practices in criminal cases, the within memorandum and accompanying exhibits upon 
the following: 
a
im
s. 
is. 
Es im
n
om
/s/ Christian R. Everdell 
Christian R. Everdell 
EFTA00103789