UNITED STATES DISTRICT COURT

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x UNITED STATES OF AMERICA, v. GHISLAINE MAXWELL, Defendant. x S2 20 Cr. 330 (AJN) GHISLAINE MAXWELL'S REPLY IN SUPPORT OF HER MOTIONS IN LIMINE Jeffrey S. Pagliuca Laura A. Menninger HADDON MORGAN & FOREMAN P.C. Denver Phone: Christian R. Everdell COHEN & GRESSER LLP New York NY Phone: Bobbi C. Stemheim Law Offices of Bobbi C. Stemheim Attorneys for Chislaine Maxwell EFTA00090721 TABLE OF CONTENTS I. A. B. C. D. THIS COURT SHOULD PRECLUDE INTRODUCTION OF ALLEGED CO- CONSPIRATOR STATEMENTS AS A SANCTION FOR GOVERNMENTS FAILURE TO COMPLY WITH THIS COURT'S SEPTEMBER 3, 2021 ORDER 1 The Court's Order was Neither Ambiguous Nor Misread by the Defense 1 The Court Has the Authority to Require Disclosure 2 There Should Be a Sanction 4 There are Substantial Issues with the Government's Anticipated Position 5 II. GOVERNMENT CONCEDEDLY FAILED TO GIVE NOTICE OF THE BASIS OR REASONING TO ADMIT ANY 404(B) EVIDENCE 6 A. The Emails Bear No Relationship to the Charged Conspiracy, Reflect Pure Propensity Evidence, and Otherwise are Unduly Prejudicial to Uninvolved Third-Party Adults .7 B. 11 1. 12 2. The government has apparently abandoned efforts to introduce her testimony as Rule 404(b) evidence 13 3. constitutes an impermissible constructive amendment and variance to the Indictment. 13 C. briefing and ruling on the admissibility for two weeks. 15 Ms. Maxwell reiterates her re, uest to defer III. THIS COURT SHOULD EXCLUDE i TESTIMONY UNDER FEDERAL RULE OF EVIDENCE 702 AND DAUBERT V. MERRELL DOW PHARMACEUTICALS, INC., 509 U.S. 579 (1993) AND GRANT A DAUBERT HEARING 15 A. This Court should reject the government's arguments to the extent that they are based on newly disclosed material, which this Court ordered the government to produce six months ago 15 B. proposed testimony is inadmissible 17 C. At a minimum, this Court should hold a Dauber: hearing. 23 IV. THE COURT SHOULD EXCLUDE EVIDENCE RELATED 24 V. THE GOVERNMENT CONCEDES THAT IT WILL NOT OFFER EVIDENCE OF MS. MAXWELL'S ALLEGED "FLIGHT" 32 EFTA00090722 VI. THE GOVERNMENT CONCEDES THAT IT WILL NOT OFFER EVIDENCE OF MS. MAXWELL'S ALLEGED FALSE STATEMENTS AND AGREES TO MS. MAXWELL'S PROPOSED REDACTIONS32 VII. THE COURT SHOULD HOLD A PRE-TRIAL EVIDENTIARY HEARING ON MS. MAXWELL'S MOTION TO SUPPRESS IDENTIFICATION. 32 VIII. GOVERNMENT AGREES NOT TO ELICIT LAW ENFORCEMENT OPINION TESTIMONY 35 IX. THE COURT SHOULD PRECLUDE TESTIMONY ABOUT ANY ALLEGED "RAPE" BY JEFFREY EPSTEIN 36 XII. REFERENCE TO ACCUSERS AS "VICTIMS" IS IMPROPER VOUCHING 38 XIII. THE COURT SHOULD PRECLUDE INTRODUCTION OF GOVERNMENT EXHIBITS 52, 251, 288, 294, 313, 606 AND THE SEARCH OF EL BRILLO WAY 41 A. The Court Should Exclude the Challenged Government Exhibits 41 B. Government Exhibit 52 42 C. The Palm Beach Search of El Brillo Way 42 D. 43 E. The Twin Torpedoes 43 F. Government Exhibit 313 44 G. Government Exhibit 606 44 ii EFTA00090723 TABLE OF AUTHORITIES Cases Bosco v. United States, No. 14 CIV. 3525 (JFK), 2016 WL 5376205 (S.D.N.Y. Sept. 26, 2016)19 Cf. State v. Wigg, 889 A.2d 233 (Vt. 2005) 40 Daubert v. Merrell Dow Phanns., Inc., 509 U.S. 579 (1993) passim Dougherty v. County of Sttffolk,No. CV 13-6493 (AKT), 2018 WL 1902336 (E.D.N.Y. Apr. 20, 2018) 41 Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017) 30 Highland Capital Mgmt., L.P. v. Schneider, 379 F. Supp. 2d 461 (S.D.N.Y. 2005) 41 Lou v. United States, 218 F.2d 675 (5th Cir. 1955) 5 Old Chief v. United States, 519 U.S. 172 (1997) 38 People v. Davis, 423 N.Y.S.2d 229 (N.Y. App. Div. 1979) 39 Raheem v. Kelly, 257 F.3d 122 (2d Cir. 2001) 34 Ricketts v. City of Hartford, 74 F.3d 1397 (2d Cir.1996) 41 Solomon v. Smith, 645 F.2d 1179 (2d Cir. 1981) 34 State v. Cortes, 851 A.2d 1230 (Conn. App. Ct. 2004) 39 State v. Sperou, 365 Or. 121, 131, 442 P.3d 581 (2019) 40 Talkington v. State, 682 S.W.2d 674 (Tex. App. 1984) 39 United States v. Angelilli, 660 F.2d 23 (2d Cir. 1981) 8 United States v. Arroyo, 600 F. App'x 11 (2d Cir. 2015) 7 United States v. Bagaric, 706 F.2d 42 (2d Cir. 1983) 26 United States v. Bocio, 103 F. Supp. 2d 531 (N.D.N.Y. 2000) 2 United States v. Bozeman, No. 3:11-CR-129, 2012 WL 1071207 (E.D. Tenn. Mar. 29, 2012) 3 United States v. Brewington, No. 15-CR-00073-PAB, 2018 WL 1411274 (D. Colo. Mar. 21, 2018) 3 United States v. Bums, No. 07 CR 556, 2009 WL 3617448 (N.D. III. Oct. 27, 2009) 20, 21 United States v. Cummings, 60 F. Supp. 3d 434 (S.D.N.Y. 2014) 26 United States v. Curley, 639 F.3d 50 (2d Cir. 2011) 26 United States v. Curley, No. SI 08 Cr. 404 (SCR), 2009 WL 10688209 (S.D.N.Y. Jul. 15, 2009) 26 United States v. D 'Amelio, 683 F.3d 412 (2d Cir. 2012) 14 United States v. Dupre, 462 F.3d 131 (2d Cir. 2006) 14 United States v. Ehrens, No. CR-15-200-C, 2015 WL 7758544 (W.D. Okla. Dec. 1, 2015) 39 iii EFTA00090724 United States v. English, No. 18 Cr. 492 (PGG) (S.D.N.Y. 2020) 37 United States v. Golyansky, 291 F.3d 1245 (10th Cir. 2002) 4 United States v. Gonyer, No. 1:12-CR-00021-JAW, 2012 WL 3043020 (D. Me. July 24, 2012)20 United States v. Graham, No. 14 Cr. 500 (NSR), 2015 WL 6161292 (S.D.N.Y. Oct. 20, 2015) 38 United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v 2019) United States v. United States v. United States v. United States v. 41 United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v. Gross, 15-cr-769 (MN), 2017 WL 4685111 (S.D.N.Y. Oct. 18, 2017) 14 Jacobs, 650 F. Supp. 2d 160 (D. Conn. 2009) 2 LaFlan:, 369 F.3d 153 (2d Cir. 2004) 7 Lee, 834 F.3d 145 (2d Cir. 2016) 4 Lewis, 818 F. App'x 74 (2d Cir. 2020) 15 Lincoln, No. 19-CR-6047 (CJS), 2019 WL 719822 (W.D.N.Y. Dec. 23, 2019)28 Moccia, 681 F.2d 61 (1st Cir. 1982) 38 Mollica, 849 F.2d 723 (2d Cir. 1988) 14 Nektalov, 325 F. Supp. 2d 367 (S.D.N.Y. 2004) 29, 37 Pineros, 532 F.2d 868 (2d Cir. 1976) 4 Raniere, No. 18-CR-2041-NGG-VMS, 2019 WL 2212639 (E.D.N.Y. May 22, 20, 23 Raymond, 700 F. Supp. 2d 142 (D. Me. 2010) 20, 21, 22 Rigas, 490 F.3d 208 (2d. Cir. 2007) 14 Salmonese, 352 F.3d 608 (2d Cir. 2003) 14 Schneider, No. CRIM.A. 10-29, 2010 WL 3734055 (E.D. Pa. Sept. 22, 2010) 20, Sena, No. 19-CR-01432, 2021 WL 4129247 (D.N.M. Sept. 9, 2021) 39, 40 Sliker, 751 F.2d 477 (2d Cir.1984) 41 Smalls, No. CR 06-2403 RB, 2008 WL 11361098 (D.N.M. Jan. 24, 2008) 3 Stein, 521 F. Supp. 2d 266 (S.D.N.Y. 2007) 38 Townsend, No. Si 06 CR. 34 (JFK), 2007 WL 1288597 (S.D.N.Y. May I, 2007) 29, 36 Tracy, 12 F.3d 1186 (2d Cir.1993) 5 Velez, No. 3:10CR147 JBA, 2010 WL 4929266 (D. Conn. Nov. 30, 2010) 3 Vickers, 708 F. App'x 732 (2d Cir. 2017) 28, 31 Von Foelkel, 136 F.3d 339 (2d Cir. 1998) 26 Walia, No. 14-CR-213 (MKB), 2014 WL 3734522 (S.D.N.Y. Jul. 25, 2014) 25 Williams, 506 F.3d 151 (2d Cir. 2007) 22 iv EFTA00090725 Statutes 18 U.S.C. § 1591 37 18 U.S.C. § 2422 28 18 U.S.C. § 2423(a) 28 N.Y. Penal Law § 130.55 28 Other Authorities 6 Handbook of Fed. Evid. § 801:25 (9th ed.) 5 Rules Fed. R. Crim. 16 17 Fed. R. Evid. 104 41 Fed. R. Evid. 401 22, 43 Fed. R. Evid. 402 10, 16, 43, 44 Fed. R. Evid. 403 passim Fed. R. Evid. 404(b) passim Fed. R. Evid. 412 14, 18, 22 Fed. R. Evid. 702 17, 21, 22 Fed. R. Evid. 801 2, 3, 5 EFTA00090726 Ghislaine Maxwell hereby submits her Reply In Support of Her Motions in Limine. I. THIS COURT SHOULD PRECLUDE INTRODUCTION OF ALLEGED CO- CONSPIRATOR STATEMENTS AS A SANCTION FOR GOVERNMENT'S FAILURE TO COMPLY WITH THIS COURT'S SEPTEMBER 3, 2021 ORDER The government offers several excuses for its failure to comply with this Court's September 3, 2021 Order. These excuses are insufficient and should be rejected. A. The Court's Order was Neither Ambiguous Nor Misread by the Defense First, the government suggests that Ms. Maxwell has misread the Order. We disagree. The Court unambiguously rejected the government's position and ruled that the government's expressed concern about disclosure "does not outweigh the risk of surprise to the Defendant in this case or the need for the parties to litigate co-conspirator issues in advance of trial to ensure the absence of delay." Dkt. 335 at 3. To both "avoid the risk of surprise" and "litigate co- conspirator issues in advance of trial to ensure the absence of delay, " the Court identified two things that were necessary from the government: First, no later than October 11, 2021, the government was required to "disclose to the defense the identities of any unnamed co- conspirators who allegedly participated in the conspiracies charged in the S2 indictment to whom the government will refer at trial." Id. Second, the Court, unambiguously and emphatically, directed: "The Government is FURTHER ORDERED to disclose all co-conspirator hearsay statements it intends to offer at trial no later than October 11, as consistent with this Court's scheduling order. Dkt. No. 297 at I." (emphasis in original.) The Court used the word "disclose" both as to the identity of the co-conspirators "to whom the government will refer to at trial" and "all co-conspirator hearsay statements it intends to offer at trial...." The government, in an attempt to blunt the Order, decided to interpret the same word, "disclose" in materially distinct fashions. As to the identity of the co-conspirators, the government disclosed (i.e., identified) three names. When it was parsing the second part of 1 EFTA00090727 the Order, however, the government defined the word "disclose" differently. Disclose, as to the actual statements, according to the government, means "produced" at some time in the past or to be produced in the future, perhaps as an oral statement during trial. Of course, the Court will tell the parties whether it meant two completely different things when it used the same word, as argued by the government, or whether it intended for the government to disclose the statements it intends to offer as co-conspirator statements. To avoid delay over this issue during trial, Ms. Maxwell suggests that she cannot litigate this issue in advance of trial without knowing what statements are being offered under Federal Rule of Evidence 801(d)(2)(e). What is clear from the government's response is not that it misunderstood the Order, but rather, it continues to disagree with the Order. B. The Court Has the Authority to Require Disclosure Second, doubling down on its disagreement with the Court, the government claims "it is aware of no such case" in which a court ordered the identification of anticipated co-conspirator statements prior to trial. While the government may not be "aware" of such cases, they certainly, and abundantly, exist. In United States v. Bocio, 103 F. Supp. 2d 531, 534 (N.D.N.Y. 2000), the court ordered pretrial disclosure of statements of co-conspirators (Government "must disclose to the defendant and make available for inspection, copying, or photographing: any relevant written or recorded statements ..., or copies thereof, within the possession, custody, or control of the government."). In United States v. Jacobs, 650 F. Supp. 2d 160, 171 (D. Conn. 2009), the court ordered co-conspirator statements be produced in advance of trial ("In the case of a co-conspirator who the government plans to call as a witness at trial, that time is now, and the government is directed to produce any relevant statement to defense counsel forthwith.") 2 EFTA00090728 In United States v. Velez, No. 3: 10CRI47 JBA, 2010 WL 4929266, at *7 (D. Conn. Nov. 30, 2010), the defendant moved for disclosure of any co-conspirator statements in advance of trial. In response, the government agreed to disclose "well in advance of trial, exactly which of the intercepted telephone calls will be offered as full exhibits at trial and transcripts of those calls will be provided in advance of trial." Based on that representation the court denied the motion to produce as moot, "without prejudice to renew if the Government fails to comply with its ongoing disclosure obligations." Id. In United States v. Smalls, No. CR 06-2403 RB, 2008 WL 11361098, at *8-9 (D.N.M. Jan. 24, 2008), the court's order was very detailed: The United States is hereby instructed to: file a supplemental brief identifying the summary witness; specifically identifying each and every coconspirator statement it intends to offer at trial as evidence against Defendants pursuant to Fed. R. Evid. 801(d)(2)(E); and stating how each proffered statement satisfies the requirements of Rule 801(d)(2)(E). Specifically, with respect to each alleged coconspirator statement, the United States must indicate: a) the identity of the coconspirator who made the alleged statement; b) the identity of the person or persons to whom the coconspirator statement was made; c) the identity of the witness who will testify at trial about the coconspirator statement; d) the content of the coconspirator statement; e) when the statement was made; 0 how the statement is in the course of the alleged conspiracy; and g) how the statement is in furtherance of the alleged conspiracy. Additionally, the United States must identify the independent evidence it intends to offer in support of admission of the alleged coconspirator statements. See also United States v. Brewington, No. 15-CR-00073-PAB, 2018 WL 1411274, at *3 (D. Cob. Mar. 21, 2018) (court required the government to identify and produce all its purported 801(d)(2)(e) statements, in the hundreds; held an evidentiary pre-trial hearing about the admissibility of those statements; and made detailed, statement by statement rulings about admissibility, excluding some and conditionally admitting others); United States v. Bozeman, No. 3: II-CR-129, 2012 WL 1071207, at *14 (E.D. Tenn. Mar. 29, 2012), affd, No. 3:11-CR- 3 EFTA00090729 129-1, 2012 WL 1565099 (E.D. Tenn. May I, 2012) (government must disclose any statements of co-conspirators that it intends to use at trial three weeks prior to the trial). There is ample legal authority for the Court to enter the Order to avoid delays and arguments during trial about what statements are or are not within the 10-year conspiracy alleged here and to prevent surprise and prejudice to the Defendant. C. There Should Be a Sanction Hedging its bets, the government acknowledges that it "may have misread the court's order" but offers no solution other than the defense is "free to litigate the admissibility of any such statement during trial." This was the government's losing argument before the Order. District courts have broad discretion to sanction a party who violates discovery orders. United States v. Golyansky, 291 F.3d 1245, 1249 (10th Cir. 2002). In considering a particular remedy for a violation, the factors considered are "the reasons why disclosure was not made, the extent of the prejudice, if any, to the opposing party, the feasibility of rectifying that prejudice by a continuance, and any other relevant circumstances." United States v. Lee, 834 F.3d 145, 159 (2d Cir. 2016) (quoting United States v. Pineros, 532 F.2d 868, 871 (2d Cir. 1976)). The appropriate remedy is exclusion. Ms. Maxwell has been in jail for approximately 18 months. She is trying not to request a continuance of the trial and her lawyers are making every effort to review massive amounts of discovery, interview potential witness, prepare for trial, and juggle a myriad of other responsibilities. The government offers no legitimate excuse for non- compliance. It clearly knows what statements it will try to introduce, it just does not want to tell anyone to avoid challenges to the statements. This is willful, not negligent or inadvertent conduct which should not be sanctioned by the Court. 4 EFTA00090730 D. There are Substantial Issues with the Government's Anticipated Position For a statement to fall within the definition of Fed. R. Evid. 801(d)(2)(E), "a court must find (1) that there was a conspiracy, (2) that its members included the declarant and the party against whom the statement is offered, and (3) that the statement was made both (a) during the course of and (b) in furtherance of the conspiracy." United States v. Tracy, 12 F.3d 1186, 1196 (2d Cir. 1993). A cursory review of the discovery produced related to one purported co- conspirator demonstrates the folly of proceeding as the government persists. The government failed to follow the Court's Order and fails to explain why it did not disclose the statements as ordered. Accordingly, the Court should prohibit introduction of any alleged co-conspirator statements at trial. 5 EFTA00090731 II. GOVERNMENT CONCEDEDLY FAILED TO GIVE NOTICE OF THE BASIS OR REASONING TO ADMIT ANY 404(B) EVIDENCE The government concedes that (i) it was aware of the December 2020 Amendments to Rule 404(b) (Resp. at 34), (ii) those Amendments required it to give notice of the "permitted purpose for which the prosecutor intends to offer the [404(b)] evidence and the reasoning that supports the purpose" (id.) ("Notice"), and (iii) the October 11'h "Maxwell Rule 404 Letter" ("Letter") did not identify the "permitted purpose" under Rule 404(b) for which the government seeks (alternative) admission of the two categories of evidence, nor the "reasoning that supports that evidence."' The government wholly fails to explain why it could not comply with these "relatively modest" new Notice requirements on the timeline ordered by this Court. Nowhere in response does the government seek leave for an extension to provide the appropriate Notice out of time nor justify its "good cause" for failure to timely comply with both the Court's Order and the Rule. Instead, they assert that "any alleged gap in the Government's notice is remediated by this brief." Resp. at 39-40. To quote the government's response to Ms. Maxwell's motion in limine, "to the extent the [government] takes issue with the rule" requiring specific pre-trial Notice under Rule 404(b), "that complaint is properly directed to the drafters of the Federal Rules of Evidence." Resp. at 61 n.15. Having failed to comply with the Notice requirements of the Rule by the (extended) Court ordered deadline of October 11, the government belatedly argues that the tendered evidence is either direct evidence or admissible under Rule 404(b). They are wrong on both fronts. I Under the misleading and disingenuous sub-heading (2) ("The Government has Met and Exceeded its Notice Obligations"), the government points only to its (i) October 11 disclosure of certain of the evidence (which gives neither a a proper "purpose" or "reasoning"), and (ii) its Response (the required "notice is remediated by this brief'). 6 EFTA00090732 "In assessing whether a district court properly admitted other act evidence, we consider whether (I) it was offered for a proper purpose; (2) it was relevant to a material issue in dispute; (3) its probative value is substantially outweighed by its prejudicial effect; and (4) the trial court gave an appropriate limiting instruction to the jury if so requested by the defendant." United States v. Arroyo, 600 F. App'x II, 13 (2d Cir. 2015) (summary order) (quoting United States v. Lanam, 369 F.3d 153, 156 (2d Cir. 2004). are offered for improper purposes, i.e., propensity, are not relevant to any material issue in dispute and their probative value is substantially outweighed by their prejudicial effect. A. near No Relationship to the Charged Conspirac Reflect Pure Propensity Evidence, and Otherwise are Unduly Prejudici The government's argument for admissibility of is breathtaking in its claims and unsupported by admissible evidence. Without expert testimony or even bothering to interview the government contends represent "direct evidence" of a conspiracy (to recruit, groom, and sexually abuse minor females or to entice, transport or traffic them for Jeffrey Epstein's sexual pleasure) that Resp. at 36. 2 The proffered evidence is found at GX 401-404, 409-410 and 413 7 EFTA00090733 The government contends that reveal "defendant's intent and motive," but their argument is defies logic. This is exactly the type of evidence forbidden by Rule 404(b). See United States v. AngellIli, 660 F.2d 23, 40-41 (2d Cir. 1981) ("While we conclude that the custom and practice evidence was admissible for the purposes we have discussed, we agree with the defendants that Rule 404(b) barred its use to prove that the individual defendants acted in conformity with the custom and practice. ..."). Even if the Court overlooks the government's failure to provide notice, absence of relevance to the charged conspiracy, and the government's failure to set forth a non- propensity ground for admissibility, should also be excluded under Rules 401 and 403, as they do not tend to make any fact of consequence more or less probable, and their probative value is substantially outweighed by the danger of unfair prejudice and confusing the issues. 8 EFTA00090734 9 EFTA00090735 Ms. Maxwell strongly disputes that suggestion. Notably, as the Court can tell, the government did not offer any evidence (or any offer of proof in their Response) that this document was in fact I0 EFTA00090736 drafted by Ms. Maxwell. Compare GX 417-B, 418-B, 420-B, 420-B (all purporting to represent metadata of other emails with the author identified). Such arguments are based on outdated stereotypes and reveal a reliance on character evidence that the Rules of Evidence specifically disallow. This Court should reject the belated, insufficient, improper argument that are direct evidence of the charged conspiracy, should find they are propensity evidence barred by Rule 404(b) and should also exclude them under Rule 403 as more prejudicial than probative. B. 11 EFTA00090737 1. Mot. at 7. Defense counsel had insufficient time to review, investigate or rebut the admissibility of the materials as direct evidence less than one week later on October le. For that reason, the Motion did not move to exclude the evidence as direct evidence but rather sought additional time in which to do so. Given the drafting of hundreds of pages of pleadings in the last week, counsel is still unprepared to make the required showing on the direct evidence point and seeks additional time in which to do so. 5 Bear in mind that the government also moved to exclude evidence that these same "abused" individuals reported to the police that they had no interactions or dealings with Ms. Maxwell. Gov't Motion in Limine at 42 ("The defendant is not charged with committing crimes against [the] victims [who reported that they had no interactions or dealings with Ms. Maxwell].") The fact that the government clearly intends to rely on how open the alleged abuse was, the relevance of evidence that even the people who claim they were abused by Epstein during the same time frame but without any knowledge or participation by Ms. Maxwell becomes highly relevant to rebut such testimony. 12 EFTA00090738 2. The government has apparently abandoned efforts to introduce her testimony as Rule 404(b) evidence. In their response, the government still fails to comply with the new Rule 404(b) notice requirements. First, they do not actually identify the evidence with any specificity, especially with respect to the "exhibits" that they hope to introduce through her. Second, while they use the words "plan and preparation" or "knowledge," they fail to explain how those uses of the testimony are independent of the character / propensity inference banned by Rule 404(b). How are the process and frequency of massages or the sexual nature of massages after the period of the conspiracy proof of a plan or preparation, apart from the propensity inference? A plan or preparation usually comes before an event. Planning or preparing for something after it has occurred can only be based on an assumption that because you are the kind of person who solicits underage massages later, you must have been the kind of person to do so earlier. Similarly, knowledge after the end of the conspiracy is not the same as knowledge at the time of or before the purported charged acts occurred, except by way of propensity. Finally, unspecified exhibits, many of which appear to have been written after the conspiracy (e.g., GX 505 — dated Feb. 14, 2005) cannot likewise be proof of the charged crimes which were allegedly completed before uses of showed up. Because the government makes no effort to argue the non-propensity purpose for these via Rule 404(b), and failed to give notice of the purposes or reason in advance in any event, this Court should exclude the evidence on this ground. 3. constitutes an impermissible constructive amendment and variance to the Indictment. Finally, what is clear from the government's proffer in their Response, the anticipated testimony o will serve as an improper constructive 13 EFTA00090739 amendment to, and an impermissible variance of, the Indictment. As this Court previously has ruled: "To prevail on a constructive amendment claim, a defendant must demonstrate that 'the terms of [an] indictment are in effect altered by the presentation of evidence and jury instructions which so modify essential elements of the offense charged that there is a substantial likelihood that the defendant may have been convicted of an offense other than that charged in the indictment." United States v. D'Amelio. 683 F.3d 412. 416 (2d Cir. 2012) (quoting United States v. Mollica. 849 F.2d 723. 729 (2d Cir. 1988)). Because the doctrine of constructive amendment protects a defendant's Grand Jury Clause rights, a constructive amendment constitutes a "per se violation" of the defendant's constitutional rights—i.e. there is no requirement that a defendant make a specific showing of prejudice. Id. at 417. In contrast to a constructive amendment, "[a] variance occurs when the charging terms of the indictment are left unaltered, but the evidence at trial proves facts materially different from those alleged in the indictment." Id. (quoting United States v. Salmonese, 352 F.3d 608. 621 (2d Cir. 2003)). United States v. Gross, 15-cr-769 (MN), 2017 WL 4685111, at *20 (S.D.N.Y. Oct. 18, 2017). As this Court then recognized, the Second Circuit has consistently relied on the same start and end dates of a conspiracy to find that differing trial proof did not affect a constructive amendment or variance. See id. ("The indictment and the evidence at trial contained the same starting and ending dates of the conspiracy...") (quoting United States v. Rigas, 490 F.3d 208, 229 (2d. Cir. 2007)); see also United States v. Dupre, 462 F.3d 131, 141 (2d Cir. 2006) ("The starting and ending dates of the conspiracy noted in the indictment correspond to the conspiracy proven at trial..."). Conversely, the substantial quantity of testimony — for the post-conspiracy time period of , who never met any of the four accusers as far as can be gleaned, and the documents she intends to authenticate, run a substantial risk that the government's proof at trial will not be the same core evidence charged in the Indictment because it will be based on evidence that post- dates the events charged in the Indictment. 14 EFTA00090740 C. Ms. Maxwell reiterates her re uest to defer briefin and rulin on the admissibility for two weeks. For the reasons already detailed, the complexity of the issues and the fact that ■ recently disclosed testimony appears to be of utmost centrality to the government's case, Ms. Maxwell repeats and reiterates her request that she be afforded additional time to submit a comprehensive motion in limine concerning the introduction of this testimony and exhibits as supposed direct evidence of the charged conspiracy. In that there remains a full month before opening statements, Ms. Maxwell's fundamental rights to present a defense, to have the effective assistance of counsel, and to a right to confront witnesses and subpoena witnesses to testify in her defense all will be preserved by a small delay on this issue. III. THIS COURT SHOULD EXCLUDE TESTIMONY UNDER FEDERAL RULE OF EVIDENCE 702 AND DAUBERT V. MERRELL DOW PHARMACEUTICALS, INC., 509 U.S. 579 (1993) AND GRANT A DAUBERT HEARING A. This Court should reject the government's arguments to the extent that they are based on newly disclosed material, which this Court ordered the government to produce six months ago. Recognizing that proposed testimony is on shaky ground (to say the least), the government belatedly tries to shore up its case and hoist up its expert witness. Two days ago, and six months after the court-imposed deadline for expert disclosures, the government first disclosed to defense counsel about 300 pages of material on which apparently relied in reaching her conclusions. This Court should reject the government's untimely effort to save testimony from exclusion. See United States v. Lewis, 818 F. App'x 74, 79 (2d Cir. 2020) (unpublished) (affirming exclusion of defendant's proffered expert evidence "that did not adhere to the discovery schedule"). 15 EFTA00090741 In any case, the newly discovered material doesn't help the government's cause. Exhibit A (literally) to the government's response is a journal article describing "grooming" as a "construct." Resp, Ex. A, Natalie Bennett & William O'Donohue, The Construct of Grooming in Child Sexual Abuse, 23 J. Child Sexual Abuse 957, 974 (2014). (In fact, Ms. Maxwell cited this article in her motion.) Far from supporting conclusions, the article proves their unreliability: There have been claims that some child molesters engage in a "seduction stage" prior to committing abuse. These behaviors, commonly known as "grooming," are understood as methods child molesters use to gain access to and prepare future victims to be compliant with abuse. However, there is a lack of consensus regarding exactly what this process entails and how it is clearly distinguished from normal adult-child interactions. . . . Furthermore, there are no methods of known psychometrics to validly assess grooming. Gov't Resp., Ex. A, p 2 (emphasis added). The article concludes: Currently there is no consensus regarding how to define grooming. In addition, there is no valid method to assess whether grooming has occurred or is occurring. The field possesses an insufficient amount of knowledge about key issues such as the interrater reliability of these judgments or the error rates of these judgments including the frequency of false negatives or false positives. Thus currently it appears that grooming is not a construct that ought to be used in forensic settings as it does not meet some of the criteria in the Daubert standard. . . . Right now it does not appear to be the case that there are "reliable principles and methods" to define and detect grooming. Id. at 19 (emphasis added). Because the government cannot justify admission of testimony based on its prejudicially late disclosures, and because those disclosures don't support views, and underscore that "grooming" is not a scientific principle based on psychometric testing, this Court should preclude from testifying. And as explained below, the government's other defenses of fall far short of what is required by Rules 401, 402, 403, 404, 702, and 704. 16 EFTA00090742 B. proposed testimony is inadmissible. According to the government, Ms. Maxwell "does not contest that Dr. is a qualified expert." Resp. at 9. To the degree that Dr. has the credentials of a potential expert, the government is right. But saying that is a "qualified expert" is not enough. The government must identify what is an expert in. Fed. R. Evid. 702; Fed. R. Crim. 16. As Ms. Maxwell pointed out in her motion, the government hasn't done that. Mot. at 2. What's more, even if is a "qualified expert" in something, she is not a "qualified expert" in everything. (For example, the government agrees that she is not an expert in the human brain or memory generally. Resp. at 30 n.7.) And as even the government admits, has no experience or expertise in diagnosing, evaluating, or treating alleged perpetrators of sexual abuse. Resp. at 19, 23, 26. She cannot therefore speak to the psychology of alleged perpetrators and their so-called "grooming techniques." The government attempts a two-step to get around this problem. "By virtue of experience treating victims," says the government, "Dr. is necessarily informed about perpetrators' actions." Resp. at 19. But how does know her patients were victims of sexual abuse? Because her patients told her so, and assumes they are telling the truth. Again, opinions are based on her treatment of a self-selected, unrepresentative group of individuals she assumes are telling the truth and are therapeutic consumers in a financial relationship with her. The government has no response to this, other than to say that and other "[c]linical psychologists are not so credulous." Resp. at 16. If this were right, though, one would expect the government to explain how clinical psychologists ensure their patients are telling the truth — in other words, how clinical psychologists like test and verify their opinions. 17 EFTA00090743 But that's not what the government does. Instead, right after claiming that "[c]linical psychologists are not so credulous," the government essentially says to Ms. Maxwell, "How dare you?" In the government's words, "The Court should reject the defendant's speculative claim that Dr. has been misled by hundreds of patients who sought professional treatment for traumatic events that did not occur." Resp. at 16. In this way, and in one breath, the government attests that is "not so credulous." But in the next breath, the government asks this Court to assume that "has [not] been misled by hundreds of patients who sought professional treatment for traumatic events that did not occur." In other words, the government asks this Court to assume patients are telling the truth, just as does. Apparently is "so credulous." But there is no reason this Court should be. The government next notes that the term "grooming -by-proxy" "appears nowhere in the Government's expert notice." Resp. at 26. That's hardly surprising, though, because there is no reliable way to assess or analyze if one individual "grooming" a minor to facilitate abuse by someone else, even though that is exactly what the government says Ms. Maxwell did. As detailed today is Ms. Maxwell's Rule 412 motion, the Indictment alleges "grooming" or "normalization" of sexual behavior by Ms. Maxwell over a dozen times. The government does not, however, contend that Ms. Maxwell "groomed" anyone for her own benefit; instead, the government contends that she "groomed" them for Epstein's benefit. But as the government does not dispute, there is nothing—not a journal article, and not a study, nothing—to validate opinions on grooming -by-proxy (even if she doesn't use that phrase).6 6 The articles and cases the government cites involve alleged grooming behavior by the preparator of the abuse, not alleged grooming behavior by a third patty. 18 EFTA00090744 Recognizing that opinions are thus unreliable, the government says: "If the victim experienced attachment and grooming, it makes no analytical difference whether the perpetrator intends to engage in sexual contact with the victim or, instead, is preparing the victim for abuse by a third party." Resp. at 26. Hardly. It makes all the difference in the world because Ms. Maxwell is on trial, not Mr. Epstein. The logic (such as it is) of grooming evidence is that the perpetrator normalizes sexual behavior to facilitate his later abuse of the victim. But because Ms. Maxwell did not abuse anyone, there is no basis to conclude that anything she did was "grooming." The government thus intends to have characterize innocent conduct by Ms. Maxwell as something more nefarious, thereby further blurring the line that experts are already unable to draw reliably. Resp. Ex. A, p 2 ("There is a lack of consensus regarding exactly what [the grooming] process entails and how it is clearly distinguished from normal adult—child interactions."). The government's additional arguments fail. • A psychologist who treats alleged victims of abuse but does not treat alleged perpetrators is nothing like a urologist who treats urology patients. Resp. at 11 (citing Bosco v. United States, No. 14 CIV. 3525 (JFK), 2016 WL 5376205 (S.D.N.Y. Sept. 26, 2016)). assumes her patients are telling the truth, and she never hears or credits the other side of the story. The urologist, by contrast, has scientific means to verify what her patients tell her, and there isn't another person whose side of the story she needs to hear. • The government repeatedly says that "courts have frequently admitted testimony about the psychological relationship between victims of sexual abuse and their perpetrators." Resp. at 13. See also id. at 7-8. But those cases do not address the 19 EFTA00090745 situation here, in which the alleged "groomer" was not the person who perpetrated the alleged abuse. • Even where the "groomer" and "perpetrator" are the same person, courts have recognized the unreliability of grooming testimony. United States v. Gonyer, No. 1:12-CR-00021-JAW, 2012 WL 3043020, at *2-3 (D. Me. July 24, 2012); United States v. Raymond, 700 F. Supp. 2d 142, 146-47 (D. Me. 2010); United States v. Schneider, No. CRIM.A. 10-29, 2010 WL 3734055, at *4 (E.D. Pa. Sept. 22, 2010); see also United States v. Raniere, No. 18-CR-204I-NGG-VMS, 2019 WL 2212639, at *7 (E.D.N.Y. May 22, 2019); United States v. Burns, No. 07 CR 556, 2009 WL 3617448, at *5 (N.D. Ill. Oct. 27, 2009) (criticizing the "grooming theory" in the context of a sentencing guidelines calculation). • The government tries to distinguish United States v. Raymond by saying that the expert's own book in that case "disavow[ed] [its] reliability . . . for legal use." Resp. at 14. But that is exactly the situation here, because the primary article on which the government relies—Exhibit A to its response-flatly says "that grooming is not a construct that ought to be used in forensic settings as it does not meet some of the criteria in the Daubert standard." Resp., Ex. A, p 19. • The government says opinions are not "anecdotal." But that's not right either, as her endorsement makes clear: opinions are based "on her education and training on psychological trauma, traumatic stress, interpersonal violence, and sexual abuse (and her] extensive clinical experience treating individuals who suffered sexual abuse and trauma in childhood and adolescence, 20 EFTA00090746 as well as (herJ experience conducting forensic psychological evaluations of people who have experienced sexual abuse and trauma." Mot. Ex. 1, p 2. • The government tries to disclaim the importance of error rates. Resp. at 15-17. But it's not just that cannot identify an error rate, it's that her implicit conclusion is that she doesn't have an error rate. That is, all her patients are telling the truth when they say they were groomed, so any evidence that matches what her patients have told her is therefore evidence of grooming. • But even if the error-rate discussion were misplaced, that doesn't mean opinions are reliable. As a "qualitative" matter, and as the government's own Exhibit A concedes, there are no "'reliable principles and methods' to define and detect grooming." Govt. Resp., Ex. A, p 19 (quoting Fed. R. Evid. 702). • The government apparently expects that, "somehow, a lay jury without guidance [will] apply I I analyses reliably to the facts of a case in determining guilt." See Raymond, 700 F. Supp. 2d at 150 (rejecting argument that a jury could do just that). This Court should not, as the government request, simply punt the matter to the jury. Resp. at 17-18. The Court is the gatekeeper. It must ensure the evidence is reliable and relevant. If it's not both, it has no place in a criminal jury trial, because it will "radically simplify" an otherwise complex case, Burns, 2009 WL 3617448, at *5, and it will, as the United States Supreme Court has cautioned, prejudicially mislead the jury, Daubert v. Merrell Dow Pharnts., Inc., 509 U.S. 579, 595 (1993) ("Expert evidence can be both powerful and quite misleading because of the difficulty in evaluating it."). 21 EFTA00090747 • The government denies Ms. Maxwell's argument that "a lay jury will be unable to apply Dr. analyses to the facts of this case" because "[t]hat is not how Rule 702 works." Resp. at 20. Responds the government: "That is precisely how Rule 702 works in cases where experts testify about general principles, which the Rule contemplates." Id. at 21. Surely that is not right when, as here, the "general principles" are unreliable. Fed. it Evid. 702, Advisory Committee Note (if expert testifies to general principles but not apply them, "the testimony [must] be reliable"). See also Mot. at 10; Raymond, 700 F. Supp. 2d at 150 n.12 (expert testimony about general principles is helpful only when it "describe[es] widely recognized and highly predictable and verifiable phenomena"). • The government attempts to fault Ms. Maxwell for making "no argument that the minor victims in this case are distinctive in some way such that general principles of psychology may diverge as to them." Resp. at 18. This argument flips the proper analysis on its head. It's the government's burden to prove reliability. E.g., United States v. Williams, 506 F.3d 151, 160 (2d Cir. 2007). It's not Ms. Maxwell's burden to prove unreliability (though if it were her burden, she would have met it). • The government says that "the causal connection between ... psychological problems and child sexual abuse is outside the experience of the average juror" and is relevant to the alleged victims' credibility. Resp. at 24. It's not, and any minor probative value the evidence has is substantially outweighed by the danger of unfair prejudice. Fed. R. Evid. 401, 403. And as explained in the Rule 412 motion today, if offers testimony and the government presents argument 22 EFTA00090748 along these lines, that will open the door to other sexual behavior evidence. That door can remain at least partially closed if is not permitted to offer her irrelevant and unfairly prejudicial testimony. • The government still hasn't explained how it helps the jury to be told that a victim of sexual abuse might make an immediate disclosure, or she might make an incremental disclosure, or she might make a delayed disclosure. Resp. at 27-30. And when the government says, "[s]exual abuse also impacts the way memory is encoded," that opinion is far outside expertise because the parties agree that she is not an expert in "the human brain or memory generally." Resp. at 30 n.7. C. At a minimum, this Court should hold a Dauber! hearing. There is ample reason for this Court to exclude testimony outright. At the very least, Ms. Maxwell is entitled to a Daubert hearing. The government implicitly concedes as much. In a footnote, the government acknowledges the decision in United States v. Raniere, in which Judge Garaufis ordered a Daubert hearing on the government's proposed expert testimony on grooming. 2019 WL 2212639, at *7-8. In that case, however, the government withdrew its endorsement rather than submit to an Dauber! hearing. Resp. at 19 n.3. Judge Garaufis reasoned that even if other courts in other cases had admitted testimony about grooming, "that [did] not make Dr. Hughes's opinion about grooming techniques reliable under the Daubert standard," if only because "her extensive academic and clinical experience appears focused on victims of sexual abuse, not perpetrators." See id. at *7. The same is true here, particularly because has no experience in, and there is no authority supporting her opinions on, grooming -by-proxy. Quite the contrary. The government's late-breaking disclosure states: 23 EFTA00090749 Thus currently it appears that grooming is not a construct that ought to be used in forensic settings as it does not meet some of the criteria in the Daubert standard. . . . Right now it does not appear to be the case that there are "reliable principles and methods" to define and detect grooming. Id. at 19 (emphasis added). At a minimum, therefore, this Court should hold a Daubert hearing. IV. THE RT SHOULD EXCLUDE EVIDENCE RELATED The government's arguments in favor of admitting evidence related as direct evidence of the charged conspiracies all but concede that the evidence is more appropriately considered under Rule 404(b). In an effort to bolster their position, the government makes the sweeping assertion that as long as was under the age of 18, her evidence is admissible as direct evidence of the conspiracy. That is a fundamentally incorrect statement of the law and should be rejected. The government's arguments for admitting evidence under Rule 404(b) and for denying the defense's requested limiting instruction are similarly baseless. The Court should therefore exclude evidence related to or, if it is admitted, give the jury the requested limiting instruction.' The government advances four principal arguments for why evidence related to should be admitted as direct evidence of the charged conspiracies: (1) her testimony allegedly shows a "pattern" of how Epstein and Ms. Maxwell sexually abused young women and establishes Ms. Maxwell's "intent" to participate in the charged conspiracies (Resp. at 45-46), (2) her allegations are included in the S2 Indictment and are therefore not covered by Rule 7 As it pertains to and the other accusers, the defense will be submitting proposed jury instructions and special verdict findings. 24 EFTA00090750 4O4(b) (id. at 46-47), (3) her evidence is "intrinsic" proof of the charged conspiracies and necessary to "complete the story" of the charged offenses (id. at 47-49), and (4) was under the age of 18, the age of consent under federal law, when the alleged sexual abuse took place, and that is "all that is required for evidence relating to the defendant's exploitation of Minor Victim-3 to be direct evidence of the charged offenses" (id. at 50). The first is an argument for admission of this evidence under Rule 404(b), not as direct evidence of the conspiracy. The second simply begs the question and assumes that the government can circumvent Rule 404(b) by alleging "other act" evidence in the indictment. The third overlooks the numerous precedents in this Circuit finding that evidence of criminal offenses that are separate and distinct from the charged offenses are not admissible as direct evidence of a conspiracy. And the fourth completely misstates the law. These arguments should be rejected. First, the government argues that evidence is admissible as direct evidence of the charged conspiracies because it is relevant to show the "pattern" of abuse— including "grooming" the accusers, encouraging them to give massages to Epstein, and asking them to recruit others—and her "intent" to participate in the charged conspiracies. (Id. at 45-46). But "pattern" is just another word for "modus operandi," which along with "intent" are bases for admission under Rule 404(b), not as direct evidence of the conspiracies. See Fed. R. Evid. 404(b) ("other act" evidence may be admissible to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident) (emphasis added); United States v. Walia, No. 14—CR-213 (MKB), 2014 WL 3734522, at *13 (S.D.N.Y. Jul. 25, 2014) (Rule 404(6) permits "other act" evidence to be admitted to prove "modus operandi"). 25 EFTA00090751 The very case the government cites in support of their position, United States v. Curley, 639 F.3d 50 (2d Cir. 2011), affirmed the district court's decision to admit "other act" evidence of prior spousal abuse to prove "intent" and "pattern" under Rule 404(b) "with an appropriate instruction on this evidence's limited purpose," not as direct evidence of the conspiracy. See Curley, 639 F.3d at 59 (citing United States v. Von Foelkel, 136 F.3d 339, 340-41 (2d Cir. 1998) (per curiam) (affirming district court's decision to admit evidence of prior domestic violence to prove defendant's intent under Rule 404(b)). Indeed, the evidence could not have been admitted as direct evidence of a conspiracy because Curley was not charged with a conspiracy. See United States v. Curley, No. SI 08 Cr. 404 (SCR), 2009 WL 10688209, at *1 (S.D.N.Y. Jul. 15, 2009) (defendant was convicted of two counts of stalking and one count of interstate violation of a protection order). Curley therefore supports the defense's position that the admissibility of. evidence must be evaluated under Rule 404(6). Second, the government does not confront the defense's point that simply including "other act" evidence in the indictment does not necessarily mean it is direct evidence of the conspiracy. See Mot. at 9-10. Instead, the government engages in circular reasoning by effectively arguing that (i) allegations in an indictment are not 404(b) evidence, (ii) allegations are in the indictment, (iii) therefore they are not 404(b) evidence. See Resp. at 46-47. But as the defense pointed out in its Motion, "other acts"