This is an FBI investigation document from the Epstein Files collection (FBI VOL00009). Text has been machine-extracted from the original PDF file. Search more documents →
FBI VOL00009
EFTA00099941
239 pages
Page 21 / 239
United States v. Rahimi, No. 16 Cr. 760 (RMB), 2017 WL 2984169 (S.D.N.Y. June 22, 2017) 225 United States v. Rahman, 189 F.3d 88 (2d Cir. 1999) 154 United States v. Rajamtnam, No. 09 Cr. 1184 (RJH), 2010 WL 4867402 (S.D.N.Y. Nov. 24, 2010) 172 United States v. Ramnath, 131 F.3d 132 (2d Cir. 1997) 300 United States v. Raymonda, 780 F.3d 105 (2d Cir. 2015) 124 United States v. Reeves, et al., 16 Cr. 372 (VEC) 286 United States v. Remington, 208 F.2d 567 (2d Cir. 1953) 146 United States v. Resendiz-Ponce, 549 U.S. 102 (2007) 227, 235 United States v. Ricco, 549 F.2d 264 (2d Cir. 1977) 61 United States v. Richardson, 512 F.2d 105 (3d Cir. 1975) 49 United States v. Richardson, 537 F.3d 951 (8th Cir. 2008) 293 United States v. Rioux, 930 F. Supp. 1558 (D. Conn. 1995) 297, 298 United States v. Rioux, 97 F.3d 648 (2d Cir. 1996) passim United States v. Rittweger, 259 F. Supp. 2d 275 (S.D.N.Y. 2003) 268 United States v. Rivera, 546 F.3d 245 (2d Cir. 2008) 204, 220, 224 United States v. Rivera, No. 09 Cr. 619 (SJF), 2011 WL 1429125, at (E.D.N.Y. Apr. 13, 2011) 262 United States v. Rivera, No. 16 Cr. 175 (LGS), 2017 WL 1843302 (S.D.N.Y. May 8, 2017) 274 United States v. Roberts, 660 F.3d 149 (2d Cir. 2011) 138 United States v. Roberts, 852 F.2d 671 (2d Cir. 1988) 132 United States v. Rolan-Zapata, 916 F.2d 795 (2d Cir. 1990) 256 United States v. Rosa, 11 F.3d 315 (2d Cir. 1993) 253 United States v. Rosa, 626 F.3d 56 (2d Cir. 2010) 123 xx EFTA00099961
Page 22 / 239
United States v. Rubin, 609 F.2d 51 (2d Cir. 1979) 61 United States v. Rubinson, 543 F.2d 951 (2d Cir. 1976) 8I United States v. Ruiz, 702 F. Supp. 1066 (S.D.N.Y. 1989) 214 United States v. Ruiz, 894 F.2d 501 (2d Cir. 1990) 207,213,214,217 United States v. Russo, 483 F. Supp. 2d 301 (S.D.N.Y. 2007) 274, 282 United States v. Russo, 801 F.2d 624 (2d Cir. 1986) 5, 1 I United States v. Rutkoske, 506 F.3d 170 (2d Cir. 2007) 248 United States v. Salameh, 152 F.3d 88 (2d Cir. 1998) 5, 6, 245 United States v. Salerno, 481 U.S. 739 (1987) 151 United States v. Salmonese, 352 F.3d 608 (2d Cir. 2003) 247, 249 United States v. Sampson, 385 F.3d 183 (2d Cr. 2004) 208 United States v. Sampson, 898 F.3d 270 (2d Cr. 2018) 200, 201 United States v. Sampson, 898 F.3d 287 (2d Cir. 2018) 177, 178, 188 United States v. Samson or, No. 07 Cr. 1198 (CM), 2009 WL 176721 (S.D.N.Y. Jan. 23, 2009) 269 United States v. Santiago, 987 F. Supp. 2d 465 (S.D.N.Y. 2013) 75 United States v. Sarwari, 669 F.3d 401 (4th Cir. 2012) 179, 180 United States v. Saftar, 272 F. Supp. 2d 348 (S.D.N.Y. 2003) 27 United States v. Savage, 970 F.3d 217 (3d Cr. 2020) 302 United States v. Scala, 388 F. Supp. 2d 396 (S.D.N.Y. 2005) 67,68,71 United States v. Scarpa, 897 F.2d 63 (2d Cir. 1990) 69 United States v. Scarpa, 913 F.2d 993 (2d Cir. 1990) passim United States v. Schaefer, No. 17 Cr. 400 (HZ), 2019 WL 267711 (D. Or. Jan. 17, 2019) 121 xxi EFTA00099962
Page 23 / 239
United States v. Schalk-id-, 871 F.2d 300 (2d Cir. 1989) 182 United States v. Schmidt, 105 F.3d 82 (2d Cir. 1997) 153, 154 United States v. Schneider, 801 F.3d 186 (3d Cir. 2015) 51,52,54,57 United States v. Seabrook, No. 10 Cr. 87 (DAB), 2010 WL 5174353 (S.D.N.Y. Dee. 14, 2010) 282 United States v. Sensi, No. 08 Cr. 253, 2010 WL 2351484 (D. Conn. June 7, 2010) 34, 52 United States v. Sergentakis, No. 05 Cr. 230 (JFK), 2005 WL 1994014 (S.D.N.Y. Aug. 17, 2005) 275 United States v. Serrano, No. 13 Cr. 58 (KBF), 2014 WL 2696569 (S.D.N.Y. June 10, 2014) 126 United States v. Shaw, 260 F. Supp. 2d 567 (E.D.N.Y. 2003) 165, 171 United States v. Sliker, 751 F.2d 477 (2d Cir. 1984) 255 United States v. Smith, 985 F. Supp. 2d 547 (S.D.N.Y. 2014) 241, 243, 247 United States v. Smith, No. 05 Cr. 922 (DLC), 2007 WL 980431 (S.D.N.Y. Apr. 3, 2007), aff'd, F. App'x 636 (2d Cir. 2009) United States v. Snyder, 668 F.2d 686 (2d Cir. 1982) United States v. Soares, 66 F. Supp. 2d 391 (E.D.N.Y. 1999) United States v. Spears, 206 63, 78 295 159 F.3d 1081 (7th Cir. 1999) 62, 66, 67 United States v. Sprouts, 282 F.3d 1037 (8th Cir. 2002) 63 United States v. Stavroulakis, 952 F.2d 686 (2d Cir. 1992) 225, 233 United States v. Stein, 456 F.2d 844 (2d Cir. 1972) 68 United States v. Stein, 541 F.3d 130 (2d Cir. 2008) 142, 143 United States v. Stokes, 733 F.3d 438 (2d Cir. 2013) 124, 132 United States v. Stringer, 730 F.3d 120 (2d Cir. 2013) 228, 229, 231 United States v. Strohm, 671 F.3d 1173 (10th Cir. 2011) 180, 190 United States v. Swanson, 210 F.3d 788 (7th Cir. 2000) 170 EFTA00099963
Page 24 / 239
United States v. Sweig, 441 F.2d 114 (2d Cir. 1971) 207,211,217 United States v. Tanu, 589 F.2d 82 (2d Cir. 1978) 79 United States v. Thai, 29 F.3d 785 (2d Cir. 1994) 252 United States v. Thompson, 13 Cr. 378 (AJN), 2013 WL 6246489 (S.D.N.Y. Dec. 3,2013) 281,284 United States v. Thompson, 896 F.3d 155 (2d Cir. 2018) 236 United States v. Thompson, No. 13 Cr. 378 (AJN), 2013 WL 6246489 (S.D.N.Y. Dec. 3, 2013) 274 United States v. Tones, 901 F.2d 205 (2d Cir. 1990) 266,268,271 United States v. Towne, 870 F.2d 880 (2d Cir. 1989) 251 United States v. Tracy, 12 F.3d 1186 (2d Cir. 1993) 283 United States v. Tramunti, 513 F.2d 1087 (2d Cir. 1975) 225,233 United States v. Mantilla), 606 F. Supp. 2d 370 (S.D.N.Y. 2009) 284 United States v. Trippe, 171 F. Stipp. 2d 230 (S.D.N.Y. 2001) 267 United States v. Triumph Capital Group, Inc., 237 F. App'x 625 (2d Cir. 2007) 184, 187 United States v. Turoff, 853 F.2d 1037 (2d Cir. 1988) 204 United States v. Ulbricht, No. 14 Cr. 68 (KBF), 2014 WL 5090039 (S.D.N.Y. Oct. 10,2014) 118,275 United States v. Urena, 989 F. Supp. 2d 253 (S.D.N.Y. 2013) 28, 171 United States v. Valentine, 820 F.2d 565 (2d Cir. 1987) 156,157,158 United States v. Valona, 834 F.2d 1334 (7th Cir. 1987) 66 United States v. Vickers, 708 F. App'x 732 (2d Cir. 2017) 256 United States v. Vickers, No. 13 Cr. 128 (RJA) (HKS), 2014 WL 1838255 (W.D.N.Y. May 8,2014) passim United States v. Vilar, No. 05 Cr. 621 (KMK), 2007 WL 1075041 (S.D.N.Y. Apr. 4,2007) 169 United States v. Villegas, 899 F.2d 1324 (2d Cir. 1990) 115 EFTA00099964
Page 25 / 239
United States v. Walker, 191 F.3d 326 (2d Cir. 1999) 70 United States v. Walsh, 194 F.3d. 37 (2d Cir. 1999) 228, 266, 271 United States v. Walters, 910 F.3d 11 (2d Cir. 2018) 152 United States v. Washington, 431 U.S. 181 (1977) 136, 137, 138 United States v. Watson, 599 F.2d 1149 (2d Cir. 1979) 78 United States v. Wedd, No. 15 Cr. 616 (KBF), 2016 WL 1055737 (S.D.N.Y. Mar. 10,2016) 271 United States v. Weiner, 479 F.2d 923 (2d Cir. 1973) 187 United States v. Werner, 620 F.2d 922 (2d Cir. 1980) 205,206,208,223 United States v. Wey, No. 15 Cr. 611 (AJN), 2017 WL 237651 n.8 (S.D.N.Y. Jan. 18, 2017) 85, 227, 229 United States v. Williams, 205 F.3d 23 (2d Cir. 2000) 70 United States v. Williams, No. 10 Cr. 622 (ADS), 2018 WL 4623017 (E.D.N.Y. Sept. 26, 2018) 123 United States v. Winter, 348 F.2d 204 (2d Cir. 1965) 146 United States v. Wong, 431 U.S. 174 (1977) 146 United States v. Wright, 343 F.3d 849 (6th Cir. 2003) 62 United States v. Ying No. 15 Cr. 601 (DLI), 2018 WL 5113139 (E.D.N.Y. Oct. 19, 2018) 206 United States v. Yonkers Contracting Co., Inc., 682 F. Supp. 757 (S.D.N.Y. 1988) 291 United States v. Young, 08 Cr. 285 (KMK), 2008 WL 4178190 (S.D.N.Y. Sept. 4, 2008) 235 United States v. Young, No. 08 Cr. 285 (KMK), 2008 WL 4178190 (S.D.N.Y. Sept. 4,2008) 234 United States v. Zackson, 12 F.3d 1178 (2d Cir. 1993) 253 United States v. Zodhiates, 901 F.3d 137 (2d Cir. 2018) 122, 126, 131 Valentine v. Konteh, 395 F.3d 626 (6th Cir. 2005) 235 Vernon v. Cassadaga Valley Cent. School Dist., 49 F.3d 886 (2d Cir. 1995) 42, 43 xxiv EFTA00099965
Page 26 / 239
Washington v. Glucksberg, 521 U.S. 702 (1997) Weingarten v. United States, 865 F.3d 48 (2d Cir. 2017). Zafiro v. United States, 506 U.S. 534 (1993) 151 passim 209,210,220 Zicarelli v. Dietz, 633 F.2d 312 (3d Cir. 1980) 293 Zietzke v. United States, 426 F. Supp. 3d 758 (W.D. Wash. 2019) 121 Statutes 18 U.S.C. §1623(a) 118 18 U.S.C. § 1591 152 18 U.S.C. § 1623 3,115 18 U.S.C. § 2 2, 3 18 U.S.C. § 2243 155 18 U.S.C. § 2422 passim 18 U.S.C. § 2422(a) 17 18 U.S.C. § 2422(b) 17 18 U.S.C. § 2423 3,151 18 U.S.C. § 2423(a) passim 18 U.S.C. § 2423(b) 17,37 18 U.S.C. § 2423(e) 17 18 U.S.C. § 2703(c)(2) 87 18 U.S.C. § 2703(d) 88 18 U.S.C. § 3282 24,35 18 U.S.C. § 3283 passim 18 U.S.C. § 3299 25 18 U.S.C. § 3500 181, 184 18 U.S.C. § 3500(a) 181 18 U.S.C. § 3500(b) 182 18 U.S.C. § 3509(a) 37 18 U.S.C. § 3509(a)(8) 36 18 U.S.C. § 3509(d) 152 18 U.S.C. § 3509(k) 24,36 18 U.S.C.§ 371 2, 151, 155, 168 18 U.S.C. § 3771 116 28 U.S.C. § 112 192 28 U.S.C. § 112(b). 192,200 28 U.S.C. § 1861 et seq 193, 194 28 U.S.C. § 1863(a) 194 28 U.S.C. § I863(b)(6) 195 28 U.S.C. § 1865(b) 194 xxv EFTA00099966
Page 27 / 239
28 U.S.C. § 1869(e) 198,200 28 U.S.C. § 81 192 New York Penal Law § 130.55 155 Pub. L. No. 101.647 24 Pub. L. No. 103-322 24 Pub. L. No. 108-21 25 Pub. L. No. 109-162 25 Pub. L. No. 109-248 25 Rules Fed. R. App. P. 4(a)(6) 99 Fed. R. Civ. P 56 153 Fed. R. Crim. P. 14(a) 157 Fed. R. Crim. P. 16 200 Fed. R. Crim. P. 21 221 Fed. R. Crim. P. 5(t) 206 Fed. R. Crim. P. 6(e). 88 Fed. R. Crim. P. 7 168 Fed. R. Crim. P. 7(c)(1) 168 Fed. R. Crim. P. 7(d) 177 Fed. R. Crim. P. 7(f) 192 Fed. R. Crim. P. 8(a). 156 Fed. R. Crim. P. 8(a). 156 Fed. R. Evid. 402 183 Fed. R. Evid. 403 183, 185 Fed. R. Evid. 404(b)(2) 184 Fed. R. Evid. 801 210 N.Y. R.P.C. 3.7(b) 166 Rule 14 157 Rule 404(b) 186 Other Authorities 149 Cong. Rec. S 5137 30 149 Cong. Rec. S 5147 30 H.R. Conf. Rep. No. 108.66 29 Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593 (1958) 130 Sexual Abuse Prosecutions, 77 J. Crim. L. & Criminology 1 (1986) 24 xxvi EFTA00099967
Page 28 / 239
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x UNITED STATES OF AMERICA S1 20 Cr. 330 (AJN) GHISLAINE MAXWELL, Defendant. x PRELIMINARY STATEMENT The Government respectfully submits this memorandum in opposition to the defendant's twelve pre-trial motions, dated January 25, 2021 (the "Defense Motions"). In her pretrial motions, the defendant seeks to throw everything but the proverbial kitchen sink at the Indictment, raising myriad arguments that find little support in fact or law. For the reasons that follow, the motions should be denied in their entirety. First, the non-prosecution agreement between Jeffrey Epstein and the U.S. Attorney's Office for the Southern District of Florida is entirely irrelevant to this case, and the defendant's motion fails as a matter of law. Second, the indictment is timely under 18 U.S.C. § 3283, which provides an extended statute of limitations for crimes involving the sexual abuse of minors. The defendant's statute of limitations arguments run contrary to the text of the statute, the intent of Congress, and the weight of authority. Third, the defendant's claim that the Government delayed in bringingthe indictment fails as a matterof law and fact. Fourth, both of the defendant's motions to suppress evidence obtained through a judicially approved subpoena are meritless, and her allegations of Government misconduct are baseless. Fifth, Counts Five and Six—which charge the defendant with committing perjury—are properly pleaded, and the defendant's motion to 1 EFTA00099968
Page 29 / 239
dismiss those charges improperly asks the Court to adjudicate her guilt. It is for the jury to decide
whether the defendant committed perjury, and the motion should be denied. Sixth, the crimes in
the indictment should be tried together, as all six counts of the indictment are logically connected
and provable through overlapping evidence. The Court should not sever this case, and thereby
require victims of child sexual abuse to testify at multiple trials. Seventh, the Indictment
indisputably alleges each element of every offense charged and provides the defendant with ample
notice of the charges against her. Eighth, the Indictment is properly pled and there is no basis to
strike any portion of it as surplusage. Ninth, the defense motion to dismiss one of the conspiracy
charges as multiplicitous is premature. Tenth, the defendant is not entitled to a bill of particulars
or any of the other early disclosures she seeks. Finally, the use of a grand jury sitting in White
Plains to return the Indictment in this case was entirely proper.
BACKGROUND
On June 29, 2020, a grand July sitting in this District returned an indictment charging the
defendant in six counts. On July 2, 2020, the Federal Bureau of Investigation ("FBI") arrested the
defendant. On July 8, 2020, a grand jury sitting in this District returned a superseding indictment
(the "Indictment") containing the same charges, with ministerial corrections. (Dkt. No. 17). Count
One of the Indictment charges the defendant with conspiring with Jeffrey Epstein and others to
entice minors to travel to engage in illegal sex acts, in violation of 18 U.S.C. § 371. Count Two
charges the defendant with enticing a minor to travel to engage in illegal sex acts, and aiding and
abetting the same, in violation 18 U.S.C. §§ 2422 and 2. Count Three charges the defendant with
conspiring with Epstein and others to transport minors to participate in illegal sex acts, in violation
of 18 U.S.C. § 371. Count Four charges the defendant with transporting minors to participate in
2
EFTA00099969
Page 30 / 239
illegal sex acts, and aiding and abetting the same, in violation of 18 U.S.C. §§ 2423 and 2. Counts
Five and Six charge the defendant with perjury, in violation of 18 U.S.C. § 1623. 1
ARGUMENT
I.
Jeffrey Epstein's Non-Prosecution Agreement Is Irrelevant to This Case
The defendant seeks to dismiss the Indictment based on a 2007 non-prosecution agreement
("NPA") between Jeffrey Epstein and the U.S. Attorney's Office for the Southern District of
Florida (the "USAO-SDFL"). (Def. Mot. 1). She does so despite the fact that: (1) she did not
negotiate the NPA, was not a party to the NPA, and her name is not contained anywhere in the
document; and (2) her crimes are not identified or named in any way in the NPA. Essentially, the
defendant claims she is immune from prosecution for any federal crime, during any time period,
anywhere, in the United States, based on the language of a document that does not name her and
which she did not sign. Moreover, she seeks to enforce the NPA against a U.S. Attorney's Office
that did not negotiate the NPA and is not bound by it.
The defendant's arguments are meritless, and the Court should reject them. As a threshold
matter, under the well-settled law of this Circuit, the NPA is not enforceable in this District,
because the USAO-SDFL's agreement with Jeffrey Epstein is not binding on the U.S. Attorney's
Office for the Southern District of New York (the "USAO-SDNY"). Moreover, even if the NPA
applied to this District—which it does not—the NPA does not immunize the defendant from
prosecution for the crimes charged in the Indictment. Finally, because the defendant has failed to
As the Government has repeatedly indicated, the investigation into Jeffrey Epstein's co-
conspirators remains ongoing. (See, e.g., Gov't Letter dated Aug. 21, 2020, Dkt. No. 46; Gov't
Letter dated Oct. 6, 2020, Dkt. No. 60; Gov't Letter dated Oct 20, 2020, Dkt. No. 65). To the
extent that investigation results in additional charges against the defendant, the Government
intends to seek any superseding indictment at least three months in advance of trial. The
Government does not anticipate that any new charges would require the production of any
additional discovery.
3
EFTA00099970
Page 31 / 239
offer any evidence to support her claim that the NPA applies to this District, to the defendant, or
to the crimes in the Indictment, the Court should deny the defendant's request for discovery and
an evidentiary hearing.
A.
The NPA Does Not Bind the Southern District of New York
As an initial matter, the NPA is not enforceable in this District. To the contrary, it is black-
letter law in this Circuit that a plea agreement in one district does not apply elsewhere, in the
absence of express indications not present here. Indeed, the Second Circuit has considered and
rejected the exact arguments the defendant advances in her motion. The defendant's motion is
without any basis in the law and should be denied.
It is well settled in the Second Circuit that "a plea agreement in one U.S. Attorney's office
does not, unless otherwise stated, bind another." United States v. Prisco, 391 F. App 'x 920, 921
(2d Cir. 2010) (citing United States v. Annabi, 771 F.2d 670, 672 (2d Cir. 1985) (per curiam) ("A
plea agreement binds only the office of the United States Attorney for the district in which the plea
is entered unless it affirmatively appears that the agreement contemplates a broader restriction."));
United States v. Salameh, 152 F.3d 88, 120 (2d Cir. 1998). This Circuit "presumes a narrow
reading of the boundaries of a plea agreement unless a defendant can affirmatively establish that a
more expansive interpretation was contemplated." United States v. Laskow, 688 F. Supp. 851, 854
(E.D.N.Y. 1988) (citing Annabi, 771 F.2d at 672), aff'd, 867 F.2d 1425 (2d Cir. 1988)(tbl.). To
meet this burden, a defendant must establish that either the text of the agreement or the
"negotiations between defendant and prosecutor" indicate a promise to bind other districts. United
States v. Russo, 801 F.2d 624, 626 (2d Cir. 1986). For the reasons set forth below, the defendant
has failed to establish that the USAO-SDFL promised Epstein that the NPA would bind other
districts.
4
EFTA00099971
Page 32 / 239
1.
The Text of the Agreement Does Not Contain a Promise to Bind Other
Districts
Turning first to the text of the NPA, the terms of the agreement do not contain an
"affirmative appearance" that the parties who signed the NPA intended to bind any other U.S.
Attorney's Office. To begin with, there can be no dispute that only representatives of the USAO-
SDFL signed the agreement. There is no signature block for, nor specific mention of, any other
district or component of the Department of Justice.
In her motion, the defendant argues that the words "United States" in the NPA evince an
intent to bind the entire United States Government. (Def. Mot. 1 at 18). But the Second Circuit
has rejected this very argument: "[t]he mere use of the term `government' in the plea agreement
does not create an affirmative appearance that the agreement contemplated barring districts other
than the particular district entering into the agreement." Salarneh, 152 F.3d at 120 (citations and
internal quotation marks omitted). This rule also extends to plea agreements that use the term
"United States." See United States v. Brown, No. 99-1230, 2002 WL 34244994, at *2 (2d Cir.
Apr. 26, 2002) (summary order) (plea agreement does not bind other districts "even if the plea
agreement purports to bind `the Government"' or the "United States"); United States v. Bruno, 159
F. Supp. 3d 311, 321 (E.D.N.Y. 2016) ("The Court disagrees with Defendant's argument that the
phrase `United States' shows an intent to bind all United States Attorney's Offices. Rather, the
plea agreement covers only Defendant's liability in the SDFL.").
As the Second Circuit first explained in Annabi, plea agreements apply only in the district
in which they are executed, absent evidence that the parties agreed to broader restrictions:
As an original proposition, a plea agreement whereby a federal
prosecutor agrees that `the Government' will dismiss counts of an
indictment . . . might be thought to bar the United States from
reprosecuting the dismissed charges in any judicial district unless
the agreement expressly limits the scope of the agreement to the
5
EFTA00099972
Page 33 / 239
district in which the dismissed charges are initially brought
However, the law has evolved to the contrary. A plea agreement
binds only the office of the United States Attorney for the district in
which the plea is entered unless it affirmatively appears that the
agreement contemplates a broader restriction.
Annabi, 771 F.2d at 672 (citations omitted). Thus, under Annabi and its progeny, a plea agreement
only binds the U.S. Attorney's Office that executes the agreement, even if, as here, the agreement
references "the Government" or "the United States" and even if the agreement lacks a provision
that "expressly limits the scope of the agreement to the district" in which the agreement was
entered.2
Confronted with this clear and controlling authority, the defendant's motion attempts to
limit the rule of Annabi by noting that some decisions applyingAnnabi concerned plea agreements
that also included express provisions limiting the enforceability of the agreements to the districts
in which they were entered. (Def. Mot. 1 at 22). Essentially, the defendant argues that without an
express provision limiting the scope of the agreement, every plea agreement should be interpreted
to bind the entire federal government. But the law in this Circuit holds the opposite: the
presumption is that a plea agreement in one district does not bind another, absent an affirmative
appearance that the agreement extends more broadly. See Laskow, 688 F. Supp. at 854
("Defendant's argument, in effect, is that unless there is an explicit statement to the contrary, it is
presumed that a non-prosecution agreement binds offices of the United States Attorney that are
2 The defendant's motion emphasizes that the Second Circuit has held, as a general matter, that
plea agreements are construed against the Government. (Def. Mot. 1. at 13). That does not carry
the day here, as Annabi provides a specific mode of analysis for determining whether a plea
agreement applies to otherdistricts, and the defendant's motion fails under Annabi. More broadly,
the authorities the defendant cites for this general principle arise from circumstances in which a
defendant has sought to enforce his own a plea agreement against the Government. (See, e.g., Def.
Mot. 1 at 13 (citing United States v. Feldman, 939 F.3d 182,189 (2d Cir. 2019) (analyzing claim
by defendant seeking to enforce promises he claimed prosecutors had made to him)). Notably, the
defendant has cited no authority for the proposition that plea agreements are to be construed in
favor of a third party who was not involved in plea negotiations.
6
EFTA00099973
Page 34 / 239
not parties to the agreement. This position is at odds with the law in this Circuit, which presumes
a narrow reading of the boundaries of a plea agreement unless a defendant can affirmatively
establish that a more expansive interpretation was contemplated.") (citing Annabi, 771 F.2d at
672). To hold otherwise would turn Annabi on its head.
The defendant next argues that the following provision of the NPA evinces an intent to
bind the entire federal government:
In consideration of Epstein's agreement to plead guilty and to
provide compensation in the manner described above, if Epstein
successfully fulfills all of the terms and conditions of this
agreement, the United States also agrees that it will not institute any
criminal charges against any potential co-conspirators of Epstein,
including but not limited to Sarah Kellen, Adriana Ross, Lesley
Groff, or Nadia Marcinkova.
NPA at 5; Def. Mot. I at 20-21. Aside from the reference to "United States" which, as noted
above, is insufficient, the defendant does not point to any language in this provision that
purportedly binds other districts. Instead, she argues that the absence of language specifically
limiting this provision to the USAO-SDFL demonstrates an intent to bind the entire federal
government. This argument fails, for at least three reasons. First, the defendant's argument inverts
the holding° f Annabi: in this Circuit, the presumption is that plea agreements bind only the district
in which they are entered, absent affirmative indications otherwise. Put differently, the absence
of express limiting language in this provision is not an affirmative indication of a broader
application. Accordingly, under Second Circuit law, the absence of limiting language in this
specific provision provides no support for the defendant's motion.
Second, the defendant's argument acknowledges that the plain terms of the NPA
immunized Epstein from prosecution in "this District," that is, the Southern District of Florida.
See NPA at 2 ("After timely fulfilling all the terms and conditions of the Agreement, no
7
EFTA00099974
Page 35 / 239
prosecution ... will be instituted in this District"). In other words, the NPA was expressly limited to the USAO-SDFL.3 Given this provision, it would be unnatural to read a broader application to other districts—based on no textual indicia—into the provision relating to co-conspirators. Moreover, the defendant's reading of the NPA would require the Court to adopt the view that, where a plea agreement contains limiting terms, they must be repeated in every paragraph in order to have their natural and common-sense effects. Third, and perhaps most importantly, the defendant's interpretation strains common sense. In order to accept the defendant's arguments, the Court would have to reach the counterintuitive conclusion that Epstein expressly bargained for broader immunity for his co-conspirators than he did for himself. That is, under the defendant's reading of the agreement, Epstein bargained to protect co-conspirators nationally for crimes they committed with Epstein, but Epstein only sought protection for himself in the Southern District of Florida. The text of the agreement does not support such a puzzling interpretation. Instead, the more natural reading of the NPA is that its repeated references to the U.S. Attorney's Office and "this District" reflect a universal limitation on the NPA: it applies only to the USAO-SDFL. Finally, at several points in her motion, the defendant emphasizes that the NPA contains the word "global," but she does not appear to argue that this creates an affirmative appearance that the NPA binds other districts. (Def. Mot. 1 at 9, 12). Nor could she. The phrase "Epstein seeks to resolve globally his state and federal liability," by its terms, refers to Epstein's liability alone. See NPA at 2. Moreover, this language appears directly after several paragraphs describing investigations conducted by the Florida State Attorney's Office and the USAO-SDFL. See id. at 1-2. Thus, in this context, the terms "global" and "state and federal liability" plainly refer to 3 In fact, the NPA states that it was executed "on the authority of R. Alexander Acosta, United States Attorney for the Southern District of Florida." NPA at 2. 8 EFTA00099975
Page 36 / 239
prosecutions by those two offices, and only those two offices.' The defendant therefore cannot argue that the word "global" in this provision means that the NPA binds the entire federal government. In sum, the defendant points to nothing in the text of the NPA that could possibly be construed to bind other districts. To the contrary, there are affirmative indications in the text that the NPA applies only to the USAO-SDFL. Accordingly, under An nabi, the NPA is only binding on the USAO-SDFL, and the defendant's motion fails as a matter of law. 2. The Defendant Has Offered No Evidence That the NPA Binds Other Districts Although a defendant may offer evidence that the negotiations between the prosecutor and defendant contained a promise to bind other districts, Russo, 801 F.2d at 626, the defendant has failed to do so here. The defendant's motion is replete with bare assertions and conclusoiy allegations, but it fails to point to any evidence that the NPA binds the USAO-SDNY. The lone document the defendant offers in support of her motion is a privilege log filed by the USAO-SDFL in connection with a lawsuit filed by Epstein's victims. (Def. Mot. I at 22). The log reflects that the FBI agents working with the USAO-SDFL interviewed witnesses in other states—including New York—during their investigation. That is entirely unremarkable, since federal investigations frequently involve gathering evidence in other states. This does not in any way establish the substantive involvement of any other districts in the prior investigation, let alone that the USAO-SDFL promised Epstein that the U.S. Attorney's offices in those states would be bound by the NPA. 4 Interpreting the term "federal liability" in this provision could not be read to encompass all U.S. Attorney's offices without also interpreting its neighboring term, "state . . . liability," to refer to every state prosecutor's office in all fifty states. The USAO-SDFL clearly did not—and could not—make such a broad promise. 9 EFTA00099976
Page 37 / 239
The privilege log also does not establish that the USAO-SDFL involved other U.S. Attorney's Offices in plea negotiations with Epstein. Grasping at straws, the defendant points to a notation in the privilege log, which contains an entry for handwritten notes, reflecting that the prosecutor in the USAO-SDFL spoke with an Assistant U.S. Attorney in New York. (Def. Mot. 1 at 22). The notes referenced in the privilege log are attached hereto as Exhibit 1. As the notes reflect, the prosecutor at the USAO-SDFL reached out to an Assistant U.S. Attorney at the USAO- SDNY to ask about a civil lawsuit relating to Epstein that was handled by the Civil Division of this Office in the 1990s. The Government is producing to defense counsel today emails that confirm that this was the nature of the contact.5 One of those emails is attached hereto as Exhibit 2 for the Court's reference. Put simply, those communications provide no indication that the USAO-SDNY was involved in plea negotiations with Epstein. Rather, the USAO-SDFL asked about an old civil case involving Epstein that an AUSA at the USAO-SDNY happened to handle years earlier. In sum, the privilege log in no way establishes that other districts were involved in negotiating the NPA, much less that Epstein was promised that the NPA would bind otherdistricts. The defendant proffers no other documentary evidence beyond the privilege log. Instead, without any citation, she broadly alleges that "senior levels of Main Justice were directly involved in the negotiation and approval of the NPA." (Def. Mot. 1. at 22). This vague and unswom allegation is not evidence. Moreover, any contacts between the USAO-SDFL and Main Justice 5 In response to the allegations raised by the defense's motion, the Government identified the underlying notes referenced in the privilege log. The Government is producing those underlying notes, as well as the relevant emails, to defense counsel today. The Government has also been informed by a human resources representative that payroll records reflect that the Assistant U.S. Attorney referenced in the privilege log left the USAO-SDNY on or about April 29, 2007, months before the NPA was executed. Although the Government has been informed that Human Resources records do not contain information regarding a division transfer, the Government understands from colleagues that the Assistant U.S. Attorney worked in the Civil Division in the 1990s and worked in the Criminal Division in the 2000s. 10 EFTA00099977
Page 38 / 239
would not, without more, establish that the USAO-SDFL intended to bind other districts, much
less that the USAO-SDFL communicated a promise to Epstein that the NPA would extend beyond
the USAO-SDFL. The defendant's failure to offer any evidence is fatal to her claim.
Although it is not the Government's burden to address and rebut every innuendo or
conclusory statement in the defendant's motion, it is significant here that the circumstances of the
NPA have been extensively litigated in a civil lawsuit, and have also been investigated by the
Department of Justice's Office of Professional Responsibility ("OPR"), resulting in a report of
OPR's findings (the "OPR Report).6 The records of both matters provide no support for the
defendant's claims.
The OPR Report notes that the USAO-SDFL periodically consulted with the Chief of the
Department of Justice Child Exploitation and Obscenity Section ("CEOS"),
during the investigation and plea discussions, and that the CEOS Chief attended a meeting with
defense counsel, during which defense counsel made a pitch that Epstein should not be prosecuted.
November 2020 Report, United States Department of Justice, Office of Professional
Responsibility, at 61-62. However, although the line prosecutor,
, subsequently
sent the CEOS Chief a draft of the NPA, the OPR Report reflects that the CEOS Chief reported to
6 The defendant's motion cites to the executive summary of the OPR Report. However, the entire
report is publicly available, is attached as Exhibit 3 hereto, and has been widely reported on and
published by the media. See, e.g., "Read the report: Investigation into the U.S. Attorney's Office
for the Southern District of Florida's Resolution of Its 2006-2008 Federal Criminal Investigation
of Jeffrey Epstein and Its Interactions with Victims during the Investigation," Wash. Post (Nov.
12, 2020), https://www.washingtonpost.corn/context/read-the-report-investigation-into-the-u-s-
attorney-s-office-for-the-southem-district-of-florida-s-resolution-of-its-2006-2008-federal-
criminal-investigation-of-jeffrey-epstein-and-its-interactions-with-victims-during-the-
investigation/db9373e8-22 f8-4712-b4a7-be844d162de0/.
I1
EFTA00099978
Page 39 / 239
OPR that "he did not recall having read the NPA at this juncture and `had no involvement with it' OPR Report at 64 n. 105.7 Beyond this, the OPR Report and the record in the civil case note contacts with Main Justice about the NPA, but only after the NPA was negotiated, drafted, and signed. In the civil case, the district court detailed the history of the plea negotiations—and noted that, after the NPA was signed, Epstein's counsel appealed to officials in Washington, D.C., hoping to avoid enforcement of the NPA's requirement that Epstein plead guilty to state offenses, as the agreement required. Doe I v. United States, 359 F. Supp. 3d 1201, 1212-13 (S.D. Fla. 2019). As the district court noted, that appeal was rejected. Id. at 1213. In particular, and following the execution of the NPA, the report reflects that the USAO- SDFL contacted the CEOS Chief in connection with a letter from Epstein's counsel, Kenneth Stan-, protesting about complying with certain parts of the NPA. OPR Report at 95. According to the report: me time, at [USAO-SDFL supervisor sent the NPA and its addendum t Oosterbaan responded to Lourie that he was "not thrilled" about the NPA; described Epstein's conduct as unusually "egregious," particularly because of its serial nature; and observed that the NPA was "pretty advantageous for the defendant and not all that helpful to the victims." He opined, however, that the Assistant Attorney General would not and should not consider or address the NPA "other than to say that she agrees with it." During her OPR interview, [Assistant Attorney General] Fisher did not recall reading Starr's letter or discussing it with but believed the comment about her "agree[ing] with it" referred to a federal prosecution of Epstein, which she believed was appropriate. She told OPR, however, that she "played no role in" the NPA and did not review or approve the agreement either before or after it was signed. 7 The OPR Report further reflects that, at the time, a supervisor at the USAO-SDFL noted the CEOS had "no approval authority." OPR Report at 60. 12 EFTA00099979
Page 40 / 239
OPR Report at 95. The OPR Report further notes that, thereafter, Epstein sought to avoid complying with the NPA entirely, and his attorneys appealed to Main Justice in the hopes of voiding the agreement. OPR Report at 94-108. That appeal was not successful. Id. In any event, the involvement of Main Justice alone would not begin to establish the very different proposition that Main Justice viewed the NPA as binding any district other than USAO-SDFL, let alone specifically considered and approved such an outcome, or communicated such a promise to Epstein. Further still, the record in the civil case makes clear that the USAO-SDFL's position was that the NPA did not bind other districts. In a July 5, 2013 brief, the USAO-SDFL stated: [T]he Non-Prosecution agreement simply obligated the government not to prosecute Epstein in the Southern District of Florida for the offenses set forth in the Non-Prosecution Agreement. The Non- Prosecution Agreement does not bar the United States from bringing federal criminal charges against Epstein for the offenses set forth in the Non-Prosecution Agreement in any other district in the nation. Neither does the Non-Prosecution Agreement bar prosecution in any district for offenses not identified in the agreement. Government Brief, 08 Civ. 80736 (KAM), Dkt. No. 205-2, at 10-11 (S.D. Fla.) (emphasis in original); see also OPR Report at 81, n.125 (observing that a supervisor at the USAO-SDFL "pointed out that the NPA was not a `global resolution' and other co-conspirators could have been prosecuted `by any other [U.S. Attorney's] office in the country."). As the USAO-SDFL has explained, the NPA did not bind other districts, and could not That is because the USAO-SDFL lacked the authority to do so under applicable Department of Justice guidelines: Significantly, under the governing provision of the United States Attorney's Manual, the USAO-SDFL did not have the authority to unilaterally bar Epstein's prosecution in any other district in the country: 'No district or division shall make any agreement, 13 EFTA00099980