UNITED STATES DISTRICT COURT

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x UNITED STATES OF AMERICA S 120 Cr. 330 (AJN) GHISLAINE MAXWELL, Defendant. x THE GOVERNMENT'S OMNIBUS MEMORANDUM IN OPPOSITION TO THE DEFENDANT'S PRE-TRIAL MOTIONS AUDREY STRAUSS United States Attorney Southern District of New York Attorney for the United States of America Assistant United States Attorneys - Of Counsel - EFTA00039421 TABLE OF CONTENTS PRELIMINARY STATEMENT 1 BACKGROUND 2 ARGUMENT 3 I. Jeffrey Epstein's Non-Prosecution Agreement Is Irrelevant to This Case 3 A. The NPA Does Not Bind the Southern District of New York 4 1. The Text of the Agreement Does Not Contain a Promise to Bind Other Districts 5 2. The Defendant Has Offered No Evidence That the NPA Binds Other Districts 9 B. The NPA Does Not Immunize Maxwell from Prosecution 15 1. The NPA Is Limited to Particular Crimes Between 2001 and 2007 15 2. The NPA Does Not Confer Enforceable Rights on Maxwell 17 C. The Defendant Has Offered No Basis for Additional Discovery or a Hearing 21 II. The Indictment Is Timely 23 A. Statutory Background 24 B. The 2003 Amendment to Section 3283 Applies Retroactively 26 1. The 2003 Amendment Satisfies Step One of Landgraf 28 2. The 2003 Amendment Satisfies Step Two of Landgraf 32 C. The Defendant's Crimes Involved the Sexual Abuse of Minors 36 III. The Defendant's Motion to Dismiss the Indictment Based on Alleged Improper Pre- Trial Delay Should Be Denied 41 A. The Defendant Has Failed to Demonstrate Actual and Substantial Prejudice 42 1. Applicable Law 42 2. Discussion 44 B. The Defendant Has Failed to Establish That the Government Delayed the Indictment for An Improper Purpose 52 1. Applicable Law 52 2. Discussion 54 IV. The Court Should Deny the Defendant's Motions to Suppress 59 A. Factual Background 61 1. The Civil Lawsuit against Maxwell 61 2. February 2016 Meeting 62 3. The April and July 2016 Depositions of Maxwell 64 4. The USAO-SDNY Commences the Instant Investigation in 2018 65 5. The USAO-SDNY's Subpoenas and Ex Pane Applications for Materials 66 6. Proceedings before Chief Judge McMahon 68 a. March 26, 2019 Hearing 68 b. April 9, 2019 Hearing 70 EFTA00039422 c. Chief Judge McMahon's Memorandum and Order 71 7. Magistrate Judge Netbum's Order 74 8. Unsealing of Maxwell's Depositions 74 9. The New York Daily News Article 75 B. The Defendant's Suppression Motion Should Be Denied 76 1. Martindell Provides No Basis to Grant the Relief the Defendant Seeks 76 a. Applicable Law 76 b. Discussion 79 2. Maxwell's Fourth Amendment Claim Fails 82 a. Maxwell Has Not Established Standing 82 i. Applicable Law 82 ii. Discussion 84 b. The Government Acted in Good Faith 86 i. Applicable Law 86 ii. Discussion 88 c. Suppression of Certain Materials Would Be Improper Under the Inevitable Discovery Doctrine 93 i. Applicable Law 93 ii. Discussion 94 3. The Defendant's Motion to Suppress Evidence Obtained Pursuant to the Subpoena Under the Fifth Amendment Is Without Merit 96 a. Applicable Law 96 i. The Fifth Amendment — Generally 96 ii. The Fifth Amendment — Act of Production Privilege 97 iii. The Fifth Amendment — When Private Action Is Deemed Government Action 98 b. Discussion 99 4. The Government Did Not Violate Maxwell's Due Process Rights 103 a. Applicable Law 104 b. Discussion 107 5. The Court Should Not Exercise Its Inherent Authority to Order Suppression 109 a. Applicable Law 109 b. Discussion 110 6. The Defendant Is Not Entitled to a Hearing 111 a. Applicable Law 112 b. Discussion 115 V. The Jury Should Decide Whether the Defendant Committed Perjury 116 A. Factual Background 117 B. Applicable Law 119 C. Discussion 122 1. April 2016 Deposition 123 2. July 2016 Deposition 129 3. Materiality 135 EFTA00039423 VI. Counts Five and Six Are Properly Joined and Should Not Be Severed 138 A. Applicable Law 138 B. Discussion 141 VII. The Indictment Contains the Elements of Each Offense and Provides the Defendant More Than Adequate Notice of the Charges Against Her 150 A. Applicable Law 150 B. Discussion 152 VIII. There Is No Basis to Strike Any Portion of the Indictment 157 A. Relevant Facts 158 B. Applicable Law 159 C. Discussion 161 IX. The Defendant's Motion to Dismiss Count One or Count Three as Multiplicitous Is Premature 169 A. Relevant Facts 169 B. Applicable Law 170 C. Discussion 172 X. The Defendant's Various Disclosure Motions Should be Denied 174 A. Bill of Particulars Is Not Warranted 174 1. Applicable Law 174 2. Discussion 178 B. The Defendant's Requests for Early Production of a Witness List and Jencks Act Material Should Be Denied 182 1. Applicable Law 182 2. Discussion 184 C. The Defendant's Additional Requests for Disclosure Should Be Denied 185 XI. The Use of a Grand Jury Siting in White Plains Was Entirely Proper 193 A. Background 194 1. The SDNY and Local Rules for the Division of Business 194 2. The SDNY Jury Plan 195 B. Applicable Law 197 C. Discussion 198 1. The Defendant Was Properly Indicted by a Grand Jury Sitting in White Plains 198 2. The Defendant's Fair Cross-Section Claim Is Meritless 205 a. The Defendant Has Not Established that Blacks or Hispanics Are Unfairly Represented 205 b. Any Potential Underrepresentation Is Not Due to Systematic Exclusion 210 CONCLUSION 212 iii EFTA00039424 EXHIBIT LIST Exhibit 1: Notes from the U.S. Attorney's Office for the Southern District of New York Exhibit 2: June 14, 2007 Email Exhibit 3: November 2020 Report, U.S. Department of Justice, Office of Professional Responsibility Exhibit 4: Notes from February 11, 2021 Call Exhibit 5: Notes from February 29, 2016 Meeting Exhibit 6: November 30, 2018 Email Exhibit 7: December 6, 2018 Email Exhibit 8: February 28, 2019 Government Letter to Judge Sweet Exhibit 9: February 28, 2019 Government Letter to Judge Netburn Exhibit 10: Transcript of April 22, 2016 Deposition Exhibit 11: Transcript of July 22, 2016 Deposition Exhibit 12: Affidavit of Dr. Bernard R. Siskin iv EFTA00039425 TABLE OF AUTHORITIES Cases Albright v. Oliver, 510 U.S. 266 (1993) Andover Data Servs., a Div. of Players Computer, Inc. v. Statistical Tabulating Corp., Page(s) 152 876 F.2d 1080 (2d Cir. 1989) 106, 119, 149 Arizona v. Youngblood, 488 U.S. 51 (1988) 76 Aronson v. K. Arakelian, Inc., 154 F.2d 231 (7th Cir. 1946) 19 Berghuis v. Smith, 559 U.S. 314 (2010) 299, 302 Blaszczak, 17 Cr. 357 (LAK) 275 Blissett v. Lefevre, 924 F.2d 434 (2d Cir. 1991) 158 Blum v. Yaretsky, 457 U.S. 991 (1982) 143 Bochese v. Town of Ponce Inlet, 405 F.3d 964 (11th Cir. 2005) 24 Botha v. Don King Productions, Inc., No. 97 Civ. 7587 (JGK), 1998 WL 88745 (S.D.N.Y. Feb. 27, 1998) 148 Boyd v. United States, 116 U.S. 616 (1886) 145 Branzburg v. Hayes, 408 U.S. 665 (1972) 110 Bridges v. United States, 346 U.S. 209 (1953) 53 Bronston v. United States, 409 U.S. 352 (1973) 181 Bryson v. United States, 396 U.S. 64 (1969) 147 Burgess v. United States, 552 U.S. 124 (2008) 51 Caplin & Drysdale, Chartered v. United States, 491 U.S. 617 (1989) 159 Carpenter v. United States, 138 S. Ct. 2206 passim Chambers v. Mississippi, 410 U.S. 284 (1973) 159 Chemical Bank v. Affiliated FM Ins. Co., 154 F.R.D. 91 (S.D.N.Y. 1994) passim EFTA00039426 Christopher v. SmithKline Beecham Corp., 567 U.S. 142 (2012) Colorado v. Connelly, 51 479 U.S. 157 (1986) 139, 141, 142 Colorado v. Spring, 479 U.S. 564 (1987) 138 County of Sacramento v. Lewis, 523 U.S. 833 (1998) 152 Cruz v. Maypa, 773 F.3d 138 (4th Cir. 2014) 43 Davis v. United States, 564 U.S. 229 (2011) 122 Doe 1 v. United States, 359 F. Supp. 3d 1201 (S.D. Fla. 2019) 14 Doe No. 1. v. United States, 749 F.3d 999 (11th Cir. 2014) 173, 174, 176 Dowling v. United States, 493 U.S. 342 (1990) 76 Duren v. Missouri, 439 U.S. 357 (1979) 289, 296 Edwards v. Mazzuca, No. 00 Civ. 2290 (US), 2007 WL 2994449 (S.D.N.Y. Oct. 15, 2007) 234 Falter v. United States, 23 F.2d 420 (2d Cir. 1928) 45 Fisher v. United States, 425 U.S. 391 (1976) 140, 146 Flagg v. Yonkers Say. & Loan Ass 'n, 396 F.3d 178 (2d Cir. 2005) 143 Franks v. Delaware, 438 U.S. 154 (1978) 166, 169, 170, 171 Gatto, 17 Cr. 686 (LAK) 275 Golino v. City of New Haven, 950 F.2d 864 (2d Cir. 1991) 125 Graham v. Connor, 490 U.S. 386 (1989) 151 Grant v. United States, 282 F.2d 165 (2d Cir. 1960) 164 Greer v. Miller, 483 U.S. 756 (1987) 158 Grunewald v. United States, 353 U.S. 391 (1957) 248 Hamling v. United States, 418 U.S. 87 (1974) 225, 227 vi EFTA00039427 Hemphill v. United States, 392 F.2d 45 (8th Cir. 1968) 268 Herring v. United States, 555 U.S. 135 (2009) 123 Howell v. Superintendent Rockview SCI, 939 F.3d 260 (2d Cir. 2019) 302 Huddleston v. United States, 485 U.S. 681 (1988) 254 In re Enter. Mort. Acceptance Co. Sec. Litig. ("Enterprise", ), 391 F.3d 401 (2d Cir. 2004) 36,43,44 In re Grand Jury Subpoena Duces Tecum Dated Apr. 19, 1991, 945 F.2d 1221 (2d Cir. 1991) 108, 113 In re Grand Jury Subpoena Duces Tecum Dated Oct 29, 1992, 1 F.3d 87 (2d Cir. 1993) 140, 145 In re Grand Jury Subpoena, 826 F.2d 1166 (1987) 136 In re Grand Jury Subpoena, 836 F.2d 1468 (4th Cir. 1988) 149 In re Three Grand Jury Subpoenas Duces Tecum Dated Jan. 29, 1999, 191 F.3d 173 (2d Cir. 1999) 139 In Re Three Grand Jury Subpoenas Jan. 5, 1988, 847 F.2d 1024 (2d Cir. 1988) 136 In re U.S., 834 F.2d 283 (2d Cir. 1987) 284 In re Various Grand Jury Subpoenas, 924 F. Supp. 2d 549 (S.D.N.Y. 2013), aff'd, 579 F. App'x 37 (2d Cir. 2014) 140 Int'l Equity !nvs., Inc. v. Opportunity Equity Partners Ltd., No. 05 Civ. 2745 (JGK) (RLE), 2010 WL 779314 (S.D.N.Y. Mar. 2, 2010) 111 Johnson v. United States, 520 U.S. 461 (1997) 200 Kungys v. United States, 485 U.S. 759 (1988) 222 Landgraf v. USI Film Products, 511 U.S. 244 (1994) 35,36, 41, 42 Leocal v. Ashcroft, 543 U.S. 1 (2004) 56, 57 Madanes v. Madanes, 186 F.R.D. 279 (S.D.N.Y. 1999) 141 Martindell v. Intl Tel. and Tel. Corp., 594 F.2d 291 (2d Cir. 1979) passim Martinez v. McAleenan, 385 F. Supp. 3d 349 (S.D.N.Y. 2019) 150, 151 Michigan v. Tucker, 417 U.S. 433 (1974) 137 vii EFTA00039428 Miller v. Pate, 386 U.S. 1 (1967) 157, 174, 175 Mills v. Scully, 826 F.2d 1192 (2d Cir. 1987) 158 Minnesota v. Mwphy, 465 U.S. 420 (1984) 144 Murray v. Met. Life Ins. Co., 583 F.3d 173 (2d Cir. 2009) 223 Nyhawan v. Holder, 557 U.S. 29 (2009) 56 Nix v. Williams, 467 U.S. 431 (1984) 132, 133 North Carolina v. Pearce, 395 U.S. 711 (1969) 259 Oregon v. Elstad, 470 U.S. 298 (1985) 139, 141 Palmieri v. State of N.Y., 779 F.2d 861 (2d Cir. 1985) 108, 112, 114 Rakas v. Illinois, 439 U.S. 128 (1978) 115, 116, 118 Ratzlaf v. United States, 510 U.S. 135 (1994) 165 Rawlings v. Kentucky, 448 U.S. 98 (1980) 116 Richardson v. Marsh, 481 U.S. 200 (1987) 212 Rivera v. United States, 928 F.2d 592 (2d Cir. 1991) 168, 172 Rochin, 342 U.S., 72 S. Ct. 205 153 Rosencrans v. United States, 165 U.S. 257 (1897) 296 Russell v. United States, 369 U.S. 749 (1962) 229 Rutenberg v. United States, 245 U.S. 480 (1918) 292 Salinas v. United States, 522 U.S. 52 (1997) 245 Santobello v. United States, No. 94 Cr. (RPP), 1998 WL 113950 (S.D.N.Y. Mar. 13, 1998) 21 Sch. Dist. No. 7, 167 F.3d 784 (2d Cir. 1999) 61 SEC v. 71eStreetcom, 273 F.3d 222 (2d Cir. 2001) 109, 113 viii EFTA00039429 Silver, 15 Cr. 93 (VEC) 275 Skelos, 15 Cr. 317 (KMW) 275 Smith v. Maryland, 442 U.S. 735 (1979) 117, 118 Stogner v. California, 539 U.S. 607 (2003) 45 Swain v. Alabama, 380 U.S. 202 (1965) 300 Taylor v. Louisiana, 419 U.S. 522 (1975) 299, 300 Taylor v. United States, 495 U.S. 575 (1990) 56 Thom v. Ashcroft, 369 F.3d 158 (2d Cir. 2004) 47 Toussie v. United States, 397 U.S. 112 (1970) 48 United State v. Nader, 425 F. Supp. 3d 619 (E.D. Va. 2019) passim United States v. Ahmed, 992 F. Supp. 682 (S.D.N.Y. 1998) 166 United States v. Ahmed, No. 10 Cr. 131 (PKC), 2011 WL 5041456 (S.D.N.Y. Oct. 21, 2011) 243 United States v. Al Kassar, 660 F.3d 108 (2d Cir. 2011) 154 United States v. Alameh, 341 F.3d 167 (2d Cir. 2003) 77, 78, 81 United States v. Alberti, 568 F.2d 617 (2d Cir. 1977) 187 United States v. Aleman, 286 F.3d 86 (2d Cir. 2002) 27 United States v. Alfonso, 143 F.3d 772 (2d. Cir. 1998) 226 United States v. Amato, 15 F.3d 230 (2d Cir. 1994) 209 United States v. An Antique Platter of Gold, 184 F.3d 131 (2d Cir. 1999) 222 United States v. Anderson, 747 F.3d 51 (2d Cir. 2014) 212 United States v. Anderson, 772 F.3d 969 (2d Cir. 2014) 162 United States v. Annabi, 10 Cr. 07 (CM) 286 ix EFTA00039430 United States v. Annabi, 771 F.2d 670 (2d Cir. 1985) 5, 7, 8 United States v. Annabi, 771 F.2d 670 (2d Cir. 1985), aff'd, 867 F.2d 1425 (2d Cir. 1988) 5 United States v. Arid, 12 Cr. 24 (LAP) 286 United States v. Arzberger, 592 F. Supp. 2d 590 (S.D.N.Y. 2008) 151 United States v. Ash, 464 F. Supp. 3d 621 (S.D.N.Y. 2020) 145 United States v. Ashburn, 76 F. Supp. 3d 401 (E.D.N.Y. 2014) 126 United States v. Awadallah, 349 F.3d 42 (2d Cir. 2003) 166, 168 United States v. Bahna, 68 F.3d 19 (2d Cir. 1995) passim United States v. Balde, 20 Cr. 281 (KPF) 298 United States v. Barlow, 732 F. Supp. 2d 1 (E.D.N.Y. 2010) 300 United States v. Barlow, 732 F. Supp. 2d 1 (E.D.N.Y. 2010), aff'd, 479 F. App'x 372 (2d Cir. 2012) 300, 302 United States v. Barnes, 520 F. Supp. 2d 510 (S.D.N.Y. 2007) 300 United States v. Batchelder, 442 U.S. 114 (1979) 265 United States v. Bejasa, 904 F.2d 137 (2d Cir. 1990) 274 United States v. Bellomo, 263 F. Supp. 2d 561 (E.D.N.Y. 2003) 268 United States v. Ben Zvi, 242 F.3d 89 (2d Cir. 2001) 41 United States v. Benussi, 216 F. Supp. 2d 299 (S.D.N.Y. 2002) 248, 250 United States v. Biaggi, 675 F. Supp. 790 (S.D.N.Y. 1987) 268 United States v. Biaggi, 909 F.2d 662 (2d Cir. 1990) 298, 300 United States v. Bin Laden, 91 F. Supp. 2d 600 (S.D.N.Y. 2000) 240 United States v. Bfrney, 686 F.2d 102 (2d Cir. 1982) 61, 65 United States v. Buren, 470 F.2d 113 (2d Cir. 1972) 183 EFTA00039431 United States v. Blakney, 941 F.2d 114 (2d Cir. 1991) 205, 219 United States v. Blaszczak, 308 F. Supp. 3d 736 (S.D.N.Y. 2018) 279 United States v. Block, No. 16 Cr. 595 (JPO), 2017 WL 1608905 (S.D.N.Y. Apr. 28, 2017) 267 United States v. Bonacorsa, 528 F.2d 1218 (2d Cir. 1976) 180, 190, 197, 199 United States v. Bonventre, 646 F App'x 73 (2d Cir. 2016) 271 United States v. Bortnovsky, 820 F.2d 572 (2d Cir. 1987) 266, 267, 274 United States v. Botti, No. 08 Cr. 230 (CSH), 2009 WL 3157582 (D. Conn. Sept. 25, 2009) 218 United States v. Brand, 467 F.3d 179 (2d Cir. 2006) 236 United States v. Brand, 556 F.2d 1312 (5th Cir. 1977) 75 United States v. Brand, No. 04 Cr. 194 (PKL), 2005 WL 77055 (S.D.N.Y. Jan. 12, 2005) 257 United States v. Broccolo, 797 F. Supp. 1185 (S.D.N.Y. 1992) 207, 214, 217 United States v. Brown, 744 F. Supp. 558 (S.D.N.Y. 1990) 170 United States v. Brown, 800 F. App'x 455 (9th Cir. 2020), cert denied, No. 20-5064, S.Ct. , 2021 WL 78235 (Jan. 11, 2021) United States v. Brown, 34, 39 No. 07-0296, 2008 WL 161146 (E.D. Pa. Jan. 16, 2008) 216 United States v. Brown, No. 99-1230, 2002 WL 34244994, at (2d Cir. Apr. 26, 2002) 6 United States v. Bruno, 159 F. Supp. 3d 311 (E.D.N.Y. 2016) 7 United States v. Bunn, 154 F. App'x 227 (2d Cir. 2005) 237 United States v. Burke, No. 09 Cr. 135 (SJ), 2011 WL 2609837 (E.D.N.Y. July I, 2011) 82 United States v. Butler, 351 F. Supp. 121 (S.D.N.Y. 2004) 243 United States v. Butler, No. 04 Cr. 340, 2004 WL 2274751 (S.D.N.Y. Oct. 7, 2004) 208, 211 United States v. Calandra, 414 U.S. 338 (1974) 110 United States v. Caming, 968 F.2d 232 (2d Cir. 1992) 165 xi EFTA00039432 United States v. Campo Flores, No. 15 Cr. 765 (PAC), 2016 WL 5946472 (S.D.N.Y. Oct. 12, 2016) 281, 282 United States v. Canfield, 212 F.3d 713 (2d Cir. 2000) 167 United States v. Canter, 338 F. Supp. 2d 460 (S.D.N.Y. 2004) 283 United States v. Carbonaro, No. 02 Cr. 743 (RCC), 2004 WL 2222145 (S.D.N.Y. Sept. 30, 2004) 83 United States v. Carpenter, 680 F.3d 1101 (9th Cir. 2012) 50 United States v. Carson, 464 F.2d 424 (2d Cir. 1972) 217, 219 United States v. CFW Const. Co., 583 F. Supp. 197 (D. S.C. 1984) 23 United States v. Chacko, 169 F.3d 140 (2d Cir. 1999) 259 United States v. Chalmers, 474 F. Supp. 2d 555 (S.D.N.Y. 2007) 225, 226 United States v. Chambers, 800 F. App'x 43 (2d Cir. 2020) 69 United States v. Chan Lo, No. 14 Cr. 491 (VSB), 2016 WL 9076234 (S.D.N.Y. Feb. 4, 2016), aff'd. 679 F. App'x 79 (2d Cir. 2017) United States v. Chen, 378 F.3d 151 (2d Cir. 2004) United States v. Cheung Kin Ping, 555 F.2d 1069 (2d Cir. 1977) United States v. Chuang, 183 271 68, 81 897 F.2d 646 (2d Cir. 1990) 115, 116 United States v. Coffey, 361 F. Supp. 2d 102 (E.D.N.Y. 2005) 228 United States v. Coke, No. 07 Cr. 971 (RPP), 2011 WL 3738969 (S.D.N.Y. Aug. 22, 2011) 153, 160, 163 United States v. Collins, 409 F. Supp. 3d 228 (S.D.N.Y. 2019) 278 United States v. Concepcion, 983 F.2d 369 (2d Cir. 1992) 252 United States v. Coppa, 267 F.3d 132 (2d Cir. 2001) 274 United States v. Corbett, 750 F.3d 245 (2d Cir. 2014) 137 United States v. Cornielle, 171 F.3d 748 (2d Cir. 1999) 60, 77, 78, 85 United States v. Corr, 543 F.2d 1042 (2d Cir. 1976) 181 xii EFTA00039433 United States v. Countentos, 651 F.3d 809 (8th Cir. 2011) 57, 58 United States v. Cromitie, 727 F.3d 194 (2d Cir. 2019) 154 United States v. Cromitie, et al., 09 Cr. 558 (CM) 286 United States v. Crouch, 84 F.3d 1497 (5th Cir. 1996) 75 United States v. D'Amico, 734 F. Supp. 2d 321 (S.D.N.Y. 2010) 268 United States v. Davis, 702 F.2d 418 (2d Cir. 1983) passim United States v. DeFilippo, No. 17 Cr. 585 (WHP), 2018 WL 740727 (S.D.N.Y. Jan. 31, 2018) 169 United States v. Delacruz, 970 F. Supp. 2d 199 (S.D.N.Y. 2013) 77 United States v. DePalma, 461 F. Supp. 778 (S.D.N.Y. 1978) 241, 250 United States v. Dewar, 489 F. Supp. 2d 351 (S.D.N.Y. 2007) 165 United States v. Diaz, 176 F.3d 52 (2d Cir. 1999) 251, 253 United States v. DiGregorio, 795 F. Supp. 630 (S.D.N.Y. 1992) 155 United States v. Dodge, 597 F.3d 1347 (11th Cir. 2010) (en banc) 54 United States v. Dornau, 356 F. Supp. 1091 (S.D.N.Y. 1973) 73 United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010) 236 United States v. Drago, No. 18 Cr. 0394 (SW) (AYS), 2019 WL 3072288 (E.D.N.Y. July 15, 2019) 86 United States v. Dumitru, No. 18 Cr. 243 (LAK), 2018 WL 3407703 (S.D.N.Y. June 26, 2018) 261 United States v. Eldred, 933 F.3d 110 (2d Cir. 2019) 123 United States v. E!-Sadig, 133 F. Supp. 2d 600 (N.D. Ohio 2001) 23 United States v. Elsbery, 602 F.2d 1054 (2d Cir. 1979) 62, 72 United States v. Estrada, 320 F.3d 173 (2d Cir. 2003) 259 United States v. Ewell, 383 U.S. 116 (1966) 80 EFTA00039434 United States v. Falso, 544 F.3d 110 (2d Cir. 2008) United States v. Fanner, 137 F.3d 1265 (10th Cir. 1998) United States v. Feldman, 939 F.3d 182 (2d Cir. 2019) United States v. Fennell, 166, 169 179, 180 8, 20, 27 496 F. Supp. 2d 279 (S.D.N.Y. 2007) 284, 286 United States v. Figueroa, 618 F.2d 934 (2d Cir. 1980) 255 United States v. Fiumano, No. 14 Cr. 518 (JFK), 2016 WL 1629356 (S.D.N.Y. Apr. 25, 2016) 70 United States v. Florence, 456 F.2d 46 (4th Cir. 1972) 293 United States v. Florida West Int'l Airways, Inc., 853 F. Supp. 2d 1209 (S.D. Fla. 2012) 23, 24 United States v. Forde, 740 F. Supp. 2d 406 (S.D.N.Y. 2010) passim United States v. Gallo, No. 98 Cr. (JGK), 1999 WL 9848 (S.D.N.Y. Jan. II, 1999) 275, 281 United States v. Gambino, 838 F. Supp. 744 (S.D.N.Y. 1993) 70 United States v. Gaudin, 515 U.S. 506 (1995) 182, 184, 200, 222 United States v. Geaney, 417 F.2d 1116 (2d Cir. 1969) 284 United States v. Gentile, 235 F. Supp. 3d 649 (D.N.J. 2017) 48 United States v. Ghailani, 751 F. Supp. 2d 502 (S.D.N.Y. 2010) 155 United States v. Ghavami, No. 10 Cr. 1217 (KMW), 2012 WL 2878126 (S.D.N.Y. July 13, 2012) 262 United States v. Gibson, 175 F. Supp. 2d 532 (S.D.N.Y. 2001) 268 United States v. Gilbert, 266 F.3d 1180 (9th Cir. 2001) 62 United States v. Gillette, 383 F.2d 843 (2d Cir. 1967) 165 United States v. Gonzalez, No. 00 Cr. 447, 2000 WL 1721171 85 United States v. Gottfried, 165 F.2d 360 (2d Cir. 1948) 292 United States v. Gracesqui, No. 10 Cr. 74 (PKC), 2015 WL 5231168 n.2 (S.D.N.Y. Sept. 8, 2015), aff'd, 730 F. App'x 25 (2d Cir. 2018) 209 xiv EFTA00039435 United States v. Green, 981 F.3d 945 (11th Cir. 2020) 124 United States v. Greer, 956 F. Supp. 525 (D. Vt. 1997) 72 United States v. GrWith, No. 99 Cr. (HB), 2000 WL 1253265 (S.D.N.Y. Sept. 5, 2000) 264 United States v. Guerrier, 18 Cr. 284 (JSR) 286 United States v. Guzman, 337 F. Supp. 140 (S.D.N.Y. 1972) 300 United States v. Halkbank, No. 15 Cr. 867 (RMB), 2020 WL 5849512 (S.D.N.Y. Oct. I, 2020) 261 United States v. Hallahan, 756 F.3d 962 (7th Cir. 2014) 19 United States v. Halper, 590 F.2d 422 (2d Cir. 1978) 216 United States v. Haqq, 278 F.3d 44 (2d Cir. 2002) 115 United States v. Harrison, 764 F. Supp. 29 (S.D.N.Y. 1991) 72 United States v. Hastings, 461 U.S. 499 (1983) 160 United States v. Heath, 455 F.3d 52 (2d Cir. 2006) 132, 133 United States v. Henderson, 337 F.3d 914 (7th Cir. 2003) 61, 62 United States v. Henry, 861 F. Supp. 1190 (S.D.N.Y. 1994) 269 United States v. Herbert, 698 F.2d 981 (9th Cir. 1983) 293 United States v. Hernandez, 85 F.3d 1023 (2d Cir. 1996) 242 United States v. Hester, No. 19 Cr. 324 (NSR), 2020 WL 3483702 (S.D.N.Y. June 26, 2020) 211 United States v. Heyward, No. 10 Cr. 84 (LTS), 2010 WL 4484642 (S.D.N.Y. Nov. 9, 2010) 154 United States v. Hillegas, 578 F.2d 453 (2d Cir. 1978) 79 United States v. Hoo, 825 F.2d 667 (2d Cir. 1987) 78 United States v. Hsia, 24 F. Supp. 2d 14 (D.D.C. 1998) 249 United States v. lannelli, 461 F.2d 483 (2d Cir. 1972) 64 xv EFTA00039436 United States v. Israel, 05 Cr. 1039 (CM) 286 United States v. Jackman, 46 F.3d 1240 (2d Cir. 1995) 300, 301 United States v. Jeffries, 405 F.3d 682 (8th Cir. 2005) 33, 37, 38, 46 United States v. Jenkins, 727 F. App'x 732 (2d Cir. 2018) 194 United States v. Jennings, 960 F.2d 1488 (9th Cir. 1992) 162 United States v. Jimenez, 824 F. Supp. 351 (S.D.N.Y. 1993) 240, 268 United States v. Johns, 15 F.3d 740 (8th Cir. 1994) 37 United States v. Johnson, 21 F. Supp. 2d 329 (S.D.N.Y. 1998) 294 United States v. Jones, 482 F.3d 60 (2d Cir. 2006) 259 United States v. Josephberg, 459 F.3d 350 (2d Cir. 2006) passim United States v. Kaplan, 758 F. App'x 34 (2d Cir. 2018) 182 United States v. Kenny, 883 F. Supp. 869 (E.D.N.Y. 1995) 294 United States v. Kidd, 386 F. Supp.3d 364 (S.D.N.Y. 2019) 231, 232 United States v. King, 560 F.2d 122 (2d Cir. 1977) 64 United States v. Kozel, No. 19 Cr. 460 (KMW), 2020 WL 4751498 (S.D.N.Y. Aug. 17, 2020) 236 United States v. Kross, 14 F.3d 751 (2d Cir. 1994) 183, 221, 222 United States v. LaFlam, 369 F.3d 153 (2d Cir. 2004) 254 United States v. Lahey, 967 F. Supp. 2d 698 (S.D.N.Y. 2013) 168 United States v. Lambus, 897 F.3d 368 (2d Cir. 2018) passim United States v. Laskow, 688 F. Supp. 851 (E.D.N.Y. 1988) 8 United States v. Laskow, 688 F. Supp. 851 (E.D.N.Y. 1988) (tbl.) 5 United States v. Laurenti, 581 F.2d 37 (2d Cir. 1978) 79 xvi EFTA00039437 United States v. Lawson, 683 F.2d 688 (2d Cir. 1982) United States v. Leo Sure Chief 438 F.3d 920 (9th Cir. 2006) United States v. Leon, 468 U.S. 897 (1984) 60, 78 33, 38, 46 124, 125 United States v. Leonelli, 428 F. Supp. 880 (S.D.N.Y. 1977) 268 United States v. Levy, No. II Cr. 62 (PAC), 2013 WL 664712 (S.D.N.Y. Feb. 25, 2013) 267 United States v. Lighte, 782 F.2d 367 (2d Cir. 1986) passim United States v. Loera, 333 F. Supp. 3d 172 (E.D.N.Y. 2018) 152 United States v. Long, 697 F. Supp. 651 (S.D.N.Y. 1988) 65 United States v. Lopez, 944 F.2d 33 (1st Cir. 1991) 21, 26 United States v. Lovasco, 431 U.S. 783 (1977) 76, 79, 80, 82 United States v. Mahabub, No. 13 Cr. 908 (MN), 2014 WL 4243657 (S.D.N.Y. Aug. 26, 2014) 266, 268, 269 United States v. Mandell, 710 F. Supp. 2d 368 (S.D.N.Y. 2010) 267 United States v. Marcus, 628 F.3d 36 (2d Cir. 2010) 248 United States v. Mariamma Vijua, No. 15 Cr. 240, 2016 WL 107841 (N.D. Tex. Jan. 11, 2016) 22 United States v. Marion, 404 U.S. 307 (1971) 59, 63, 72 United States v. Markiewicz, 978 F.2d 786 (2d Cir. 1992) 178, 180, 187, 198 United States v. Martin, 426 F.3d 68 (2d Cir. 2005) 167 United States v. Martinez, No. 92 Cr. (SWK), 1993 WL 322768 (S.D.N.Y. Aug. 19, 1993) 216 United States v. Martinez, No. 94 Cr. (RPP), 1995 WL 10849 (S.D.N.Y. Jan. 12, 1995) 77 United States v. Mason, 479 F. App'x 397 (2d Cir. 2012) 248 United States v. Mast, 735 F.2d 745 (2d Cir. 1984) 144 United States v. McCourty, 562 F.3d 458 (2d Cir. 2009) 260 xvii EFTA00039438 United States v. McDarrah, 351 F. App'x 558 (2d Cir. 2009) 257 United States v. Medina, No. 13 Cr. 272 (PGG), 2014 WL 3057917 (S.D.N.Y. July 7, 2014) 261 United States v. Miller, 116 F.3d 641 (2d Cir. 1997) 252, 292 United States v. Miller, 425 U.S. 435 (1976) 116, 117, 119 United States v. Miller, 911 F.3d 638 (1st Cir. 2018) 44 United States v. Ming He, 94 F.3d 782 (2d Cir. 1996) 161 United States v. Mitan, No. 08-760, 2009 WL 2328870 (E.D. Pa. July 28, 2009) 218 United States v. Mitchell, 966 F.2d 92 (2d Cir. 1992) 144 United States v. Mitlof, 165 F. Supp. 2d 558 (S.D.N.Y. 2001) 268 United States v. Monserrate, No. 10 Cr. 965 (CM), 2011 WL 3480957 (S.D.N.Y. Aug. 4, 2011) 267 United States v. Montoya-Eschevarria, 892 F. Supp. 104 (S.D.N.Y. 1995) 118 United States v. Moore, 968 F.2d 216 (2d Cir. 1992) 125 United States v. Morgan, 113 F.3d 1230, 1997 WL 268712 (2d Cir. 1997) (unpublished opinion) 45 United States v. Mostafa, 965 F. Supp. 2d 451 (S.D.N.Y. 2013) 242, 243, 247, 262 United States v. Mulder, 273 F.3d 91 (2d Cir. 2001) 241, 242 United States v. Mullens, 536 F.2d 997 (2d Cir. 1976) 139 United States v. Murgio, 209 F. Supp. 3d 698 (S.D.N.Y. 2016) 231, 241, 247 United States v. Muric, No. 10 Cr. 112 (LTS), 2010 WL 2891178 (S.D.N.Y. July 13, 2010) 86 United States v. Myers, 692 F.2d 823 (2d Cir. 1982) 153, 161 United States v. Napolitano, 552 F. Supp. 465 (S.D.N.Y. 1982) 241 United States v. Nejad, No. 18 Cr. 224 (MN), 2019 WL 6702361 (S.D.N.Y. Dec. 9, 2019) 225 United States v. Nemesian, 824 F.2d 1294 (2d Cir. 1987) 233 xviii EFTA00039439 United States v. Nitsche, 843 F. Supp. 2d 4 (D.D.C. 2011) 201, 202 United States v. Nixon, 418 U.S. 683 (1974) 282 United States v. Noble, No. 07 Cr. 284 (RJS), 2008 WL 140966 (S.D.N.Y. Jan. 11, 2008) 164 United States v. Okwumabua, 828 F.2d 950 (2d Cir. 1987) 138 United States v. Olivieri, 740 F. Supp. 2d 423 (S.D.N.Y. 2010) 146 United States v. Oshatz, 700 F. Supp. 696 (S.D.N.Y. 1988) 147, 148 United States v. Page, 657 F.3d 126 (2d Cir. 2011) 205, 209, 210, 220 United States v. Pascarella, 84 F.3d 61 (2d Cir. 1996) 252 United States v. Paulin, 445 F.3d 211 (2d Cir. 2006) 253 United States v. Payner, 447 U.S. 727 (1980) 115, 161, 162 United States v. Pena, 932 F. Supp. 2d 464 (S.D.N.Y. 2013) 221 United States v. Perez, 940 F. Supp. 540 (S.D.N.Y.I996) 281 United States v. Pierre-Louis, No. 16 Cr. 541 (CM), 2018 WL 4043140 (S.D.N.Y. Aug. 9, 2018) passim United States v. Pipola, 83 F.3d 556 (2d Cir. 1996) 253 United States v. Pirro, 212 F.3d 86 (2d Cir. 2000) 229 United States v. Pizarro, No. 17 Cr. 151 (MN), 2018 WL 1737236 (S.D.N.Y. Apr. 10, 2018) passim United States v. Plaza-Andrades, 507 F. App'x 22 (2d Cir. 2013) 291 United States v. Polos, 723 F. App'x 64 (2d Cir. 2018) 195 United States v. Post, 950 F. Supp. 2d 519 (S.D.N.Y. 2013) 226 United States v. Potamitis, 739 F.2d 784 (2d Cir. 1984) passim United States v. Prisco, 391 F. App'x 920 (2d Cir. 2010) 4 United States v. Quinones, 511 F.3d 289 (2d Cir. 2007) 251 xix EFTA00039440 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. Rajaratnam, 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 EFTA00039441 United States v. Rubin, 609 F.2d 51 (2d Cir. 1979) 61 United States v. Rubinson, 543 F.2d 951 (2d Cir. 1976) 81 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, 11 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 Cir. 2004) 208 United States v. Sampson, 898 F.3d 270 (2d Cir. 2018) 200, 201 United States v. Sampson, 898 F.3d 287 (2d Cir. 2018) 177, 178, 188 United States v. Samsonov, 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. Sattar, 272 F. Supp. 2d 348 (S.D.N.Y. 2003) 27 United States v. Savage, 970 F.3d 217 (3d Cir. 2020) 302 United States v. Scala, 388 F. Supp. 2d 396 (S.D.N.Y. 2005) 67, 68, 71 United States v. Scaipa, 897 F.2d 63 (2d Cir. 1990) 69 United States v. Scaipa, 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 EFTA00039442 United States v. Schafrick, 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. Dec. 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), affd, F. App'x 636 (2d Cir. 2009) United States v. 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Thompson, 896 F.3d 155 (2d Cir. 2018) 236 United States v. Thompson, No. 13 Cr. 378 (MN), 2013 WL 6246489 (S.D.N.Y. Dec. 3, 2013) 274 United States v. Torres, 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. Tram :::: ti, 513 F.2d 1087 (2d Cir. 1975) 225, 233 United States v. Tranquillo, 606 F. Supp. 2d 370 (S.D.N.Y. 2009) 284 United States v. Trippe, 171 F. Supp. 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 EFTA00039444 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 (MN), 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 Lin, 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 EFTA00039445 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) 209, 151 passim 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. §I623(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(bX6) 195 28 U.S.C. § 1865(b) 194 xxv EFTA00039446 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(f) 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 EFTA00039447 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x UNITED STATES OF AMERICA S 1 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 bringing the indictment fails as a matter of 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 EFTA00039448 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 jury sitting in this District returned an indictment charging the defendant in six counts. On July 2, 2020, the Federal Bureau of Investigation ("FBP") 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 EFTA00039449 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. I). 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 1 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 EFTA00039450 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. Salamelz, 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 EFTA00039451 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." Salameh, 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 EFTA00039452 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 applying Annabi 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 other districts, 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., Del 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 EFTA00039453 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. 1 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 of 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 EFTA00039454 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 EFTA00039455 prosecutions by those two offices, and only those two offices.4 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 Annahi, 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 conclusory 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. 1 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 EFTA00039456 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 other districts. 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 unsworn 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 EFTA00039457 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"), Andrew Oosterbaan, 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, Maria Villafaiia, 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), hups://www.washingtonpost.corn/context/read-the-report-investigation-into-the-u-s- attomey-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/db9373e8-22f8-4712-b4a7-be844d162de0/. 11 EFTA00039458 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 Starr, protesting about complying with certain parts of the NPA. OPR Report at 95. According to the report: At the same time, at [USAO-SDFL supervisor] Lourie's request, Villafafta sent the NPA and its addendum to Lourie and Oosterbaan. 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 Oosterbaan, 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. 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 EFTA00039459 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 EFTA00039460 including any agreement not to prosecute, which purports to bind any other district(s) or division without the express written approval of the United States Attomey(s) in each affected district and/or the Assistant Attorney General of the Criminal Division.' Government Brief, 08 Civ. 80736 (KAM), Dkt. No. 205-2, at 11 n. I I (S.D. Fla.) (quoting United States Attorney's Manual, 9-27.641 (Multi-District (Global) Agreement Requests)). Significantly, this brief was signed by the same prosecutor who negotiated and signed the NPA. Id. Although the defendant makes the sweeping, self-serving, and unsupported allegation that "the government had every reason to foresee a potential prosecution of Epstein's co-conspirators in this District and, after multiple layers of review within the Department of Justice, intended to agree to preclude it," the USAO-SDFL's brief says otherwise. (Def. Mot. 1 at 22). Further still, the record developed in both civil litigation and OPR's investigation does not support this claim. at As the foregoing makes clear, the defendant has failed to produce any evidence that the USAO- SDFL promised Epstein that other districts would be bound by the NPA. There is no "affirmative appearance" that the NPA binds other districts, and the motion should be denied. Under Annabi and its progeny, the defendant has failed to establish that the NPA binds other districts. For this reason alone, the defendant's motion should be dismissed, in keeping with the well-established law in this Circuit.8 8 In her motion, the defendant asks this Court to apply a bizarre and unprecedented choice-of- federal-law doctrine, under which the defendant asks the Court to apply non-existent rulings from the Eleventh Circuit on an issue that Court does not appear to have reached. (Def. Mot. 1 at 23- 25). This argument has no legal foundation, and the defendant offers no authority for the proposition that federal plea agreements are governed by the choice of law principles that apply to conflicting state laws. Annabi is the binding law of this Circuit, and this Court must apply it. 14 EFTA00039461 B. The NPA Does Not Immunize Maxwell from Prosecution Even if the NPA bound this District—which it does not—the NPA provides no basis for dismissing the Indictment. The NPA does not protect the defendant for at least two reasons. First, the text of the NPA specifically limits the scope of the NPA to certain federal crimes committed between 2001 and 2007, and thus the NPA does not apply to the distinct offenses and time periods charged in the Indictment. Second, the NPA does not protect the defendant at all, because the mere use of the word "co-conspirator" does not establish that the defendant was among the class of persons contemplated by the agreement, much less that the defendant has standing to enforce it. 1. The NPA Is Limited to Particular Crimes Between 2001 and 2007 Contrary to the defendant's assertions, the NPA did not provide carte blanche immunity to Epstein or his "co-conspirators." In fact, the NPA contains detailed provisions that limit the scope of the crimes immunized in the agreement. The NPA begins by outlining the scope of the USAO-SDFL investigation. delineating the timeframe of the offense conduct under investigation ("from in or around 2001 through in or around September 2007"), and listing each and every statutory offense under investigation. NPA at 1. The NPA does this for a reason, because these terms are later used in the agreement to set the boundaries of immunity. In particular, the agreement provides: [N]o prosecution for the offenses set out on pages 1 and 2 of this agreement, nor any other offenses that have been the subject of the joint investigation by the Federal Bureau of Investigation and the United States Attorney's Office, nor any offenses that arose from the Federal Grand Jury investigation will be instituted in this District, and the charges against Epstein if any, will be dismissed. NPA at 2. Thus, the NPA barred the USAO-SDFL from prosecuting Epstein for the specific 15 EFTA00039462 offenses enumerated in the NPA.9 While these same limitations are not repeated in the provision that purports to immunize "co-conspirators," these limitations apply with equal force across the agreement, because that is the only common-sense way to read the NPA. Indeed, and as noted above in a related context, it would be exceedingly strange to interpret the "co-conspirator" provision to extend broader immunity than Epstein negotiated for himself. The defendant may assert that the "co-conspirator" provision has absolutely no limitations, but such an argument would lead to absurd results. In particular, in arguing that the "co- conspirator" provision lacks any temporal or statutory limitations whatsoever, the defendant seems to claim that the NPA immunized her for future crimes including, for example, perjury offenses that she is charged with committing almost a decade after the NPA was executed. (Def. Mot. 1 at 32 ("For the foregoing reasons, Ms. Maxwell respectfully requests that the Court dismiss the indictment.")). Although the defendant does not highlight this point in her motion—perhaps recognizing how absurd it would be—that is the natural consequence of her illogical interpretation of the NPA. Despite advancing an argument that strains common sense, the defendant cites no case in which a court has interpreted a plea agreement to bar prosecution for crimes that pre- or post-dated the period covered by the agreement. The Government is aware of no such authority. See United States v. Hallahan, 756 F.3d 962, 974 (7th Cir. 2014) (rejecting defense argument that plea agreement barred prosecution for subsequent bail jumping, and, in interpreting the 9 By its plain terms, the NPA did not immunize Epstein for his "background," as the defendant suggests. (Def. Mot. 1 at 27). This provision refers, instead, to a list of "offenses" under federal law. Indeed, it is unclear how any plea agreement could immunize a defendant's "background." Similarly, the fact that the USAO-SDFL interviewed Minor Victim-2 does not mean that this case "arose out of" the USAO-SDFL investigation, an assertion the defendant's motion does not explain or support with evidence. As the Indictment makes clear, the events underpinning the Indictment involve multiple victims and specific legal charges that were not within the scope of the USAO- SDFL investigation. As discussed in greater detail below, Minor Victim- I and Minor Victim-3 were never interviewed by the USAO-SDFL, and they did not agree to speak with law enforcement until 2019. 16 EFTA00039463 Government's promises in the plea agreement to only cover past crimes, observing that "not limiting the prohibition to past crimes would make it absurd and probably illegal") (citing Aronson v. K. Arakelian, Inc., 154 F.2d 231, 233 (7th Cir. 1946) ("[A] contract will not be presumed to have imposed an absurd or impossible condition on one of the parties, but will be interpreted as the parties must be supposed to have understood the conditions at the time.")). Finally, the defendant claims that the NPA covers all violations of the Mann Act. (Def. Mot. 1 at 26 n.4). Not so. The NPA lists specific statutory provisions within the Mann Act, but none of the provisions contained in the Indictment. In particular, the NPA expressly covers violations of 18 U.S.C. §§ 2422(b), 2423(b), and 2423(e), but it does not include the particular provisions charged in the Indictment against Maxwell, which alleges violations of §§ 2422(a) and 2423(a). These are plainly not the same crimes, and a plea agreement cannot be read to immunize unnamed crimes in the general ballpark of the specific crimes enumerated in the agreement. The defendant cites no authority that supports her overbroad reading of this provision. Accordingly, the NPA immunizes only certain, specific offenses, none of which are contained in the Indictment. As a result, the defendant cannot invoke the NPA to seek the dismissal of the Indictment. 2. The NPA Does Not Confer Enforceable Rights on Maxwell Even if this Court were to construe the NPA beyond its plain terms to preclude prosecutions for the crimes contained in the Indictment, the defendant has established neither that those protections extend to Maxwell specifically, nor that she has standing to pursue those protections. The defendant asks this Court to interpret the NPA according to contract principles, and accord the defendant standing to enforce the NPA as a third party beneficiary. As a general matter, plea agreements are interpreted using principles from contract law, but that maxim is not without 17 EFTA00039464 limitations. As the defendant's motion recognizes, the Second Circuit has emphasized that plea agreements differ from commercial contracts in meaningful respects. (Def. Mot. 1 at 30 (citing United States v. Feldman, 939 F.3d 182, 189 (2d Cir. 2019) ("[W]hile the district court's analysis might have been compelling with respect to a contract arising out of commercial negotiations among private parties, we believe the court did not correctly apply the standards that govern the interpretation of plea agreements with the government. We have long recognized that plea agreements are significantly different from commercial contracts."))). Accordingly, although the third party beneficiary doctrine is a tenet of contract law, its application to plea agreements under federal law is a separate question. The defendant correctly notes that plea agreements may address leniency for third parties. (Def. Mot. 1 at 15). However, it does not necessarily follow that a third party may enforce such a promise. Indeed, it is far from clear that, under federal law, a third party may enforce a plea agreement. At least one court in this Circuit has noted the absence of authority that a third party has standing to enforce another individual's plea agreement. See Santobello v. United States, No. 94 Cr. 119 (RPP), 1998 WL 113950, at *3 (S.D.N.Y. Mar. 13, 1998) ("Even if Santobello could establish the existence of plea agreements between the Government and his co-defendants, there is little known authority that would allow him to enforce the agreements as a third party beneficiary.") (citing United States v. Lopez, 944 F.2d 33, 36-37 (1st Cir. 1991)). Following this logic, at least one court has concluded that third parties lack standing to enforce plea agreements. In United States v. Mariamma Viju, the defendant claimed that the Government had entered into a plea agreement with her husband, under which the Government had promised not to prosecute her. No. 15 Cr. 240, 2016 WL 107841, at *1 (N.D. Tex. Jan. 11, 2016). Observing that the principles governing interpretation of plea agreements diverge in many 18 EFTA00039465 respects from those underlying contract law, the district court concluded that "third-party beneficiaries have no contractual right to enforce plea agreements." Id. at '3-4. The court reasoned, "[t]he right to enforce a plea deal does not exist for its own sake; rather, it is a means to achieve fairness in plea bargaining." Id. at '4. That is because a defendant has the right to enforce his plea agreement, and "enforcement by third parties adds nothing to protecting the defendant's right." Id. The same holds true here. In support of her claim that she has standing to enforce the NPA, the defendant relies upon three district court decisions, none of which analyzed the threshold question of whether third party standing concepts from contract law apply to plea agreements. In United States v. Florida West Int 'I Airways, Inc., 853 F. Supp. 2d 1209, 1228 (S.D. Fla. 2012), the district court applied the third party beneficiary doctrine to a former airline employee based on a prior plea agreement with the airline that immunized, among others, current and former employees of the airline and its subsidiaries. In its analysis, however, the court applied the doctrine without analyzing the question of whether third party beneficiary standing principles apply to plea agreements. Id. For similar reasons, the defendant's reliance on United States v. El-Sadig, 133 F. Supp. 2d 600, 608-09 (N.D. Ohio 2001) is misplaced. In that case, the court permitted a third party to invoke a plea agreement, but it did not analyze or address whether third party standing rules apply to plea agreements. Id. Likewise, in United States v. CFW Const. Co., 583 F. Supp. 197, 203 (D.S.C. 1984), the court applied the third party beneficiary doctrine, but relied solely on contracts treatises for support, and did not analyze whether that doctrine should be applied to plea agreements. In any event, even if third party beneficiaries had standing to enforce federal plea agreements, the defendant has failed to establish that she is a third party beneficiary of the NPA. In order to establish that she has enforceable rights under the NPA, the defendant must show that 19 EFTA00039466 "a direct and primary object of the contracting parties was to confer a benefit on the third party." Fla. W. Intl Ainvays, Inc., 853 F. Supp. 2d at 1228 (quoting Boclzese v. Town of Ponce Inlet, 405 F.3d 964, 982 (11th Cir. 2005)). In other words, "the intent of the parties is the key" to evaluating whether an individual is a third party beneficiary. Id. Here, the defendant has offered no evidence that the parties intended to confer a benefit on her in particular, or that her crimes in the 1990s make her a member of the class of "co- conspirators" the parties had in mind when they negotiated the NPA. To the contrary, the OPR's investigation of the circumstances surrounding the inclusion of this provision in the NPA strongly undercuts any such argument, and OPR's findings demonstrate that the parties did not intend to confer a benefit on the defendant. With respect to the "co-conspirator" provision, the OPR Report concluded, in relevant part: Other than various drafts of the NPA and of a federal plea agreement, OPR found little in the contemporaneous records mentioning the provision and nothing indicating that the subjects discussed or debated it—or even gave it much consideration. Drafts of the NPA and of the federal plea agreement show that the final broad language promising not to prosecute "any potential co- conspirators of Epstein" evolved from a more narrow provision sought by the defense. The provision expanded as [USAO-SDFL prosecutor Maria] Villafafia and defense counsel exchanged drafts of, first, a proposed federal plea agreement and, then, of the NPA, with apparently little analysis and no substantive discussion within the USAO about the Provision. OPR Report at 166. With respect to Maxwell in particular, OPR interviewed Maria Villafaiia, the lead prosecutor on the case, and noted: Villafafia acknowledged that investigators were aware of Epstein's longtime relationship with a close female friend who was a well- known socialite, but, according to Villafafia, in 2007, they "didn't have any specific evidence against her." Accordingly, Villafaiia believed that the only "co-conspirators" of Epstein who would benefit from the provision were the four female assistants identified by name. 20 EFTA00039467 OPR Report at 167.1° After reviewing the facts and circumstances of the negotiation, OPR concluded that "the evidence does not show that [Former USAO-SDFL U.S. Attorney Alex] Acosta, [Former USAO-SDFL supervisor Andrew] Lourie, or Villafafia agreed to the nonprosecution provision to protect any of Epstein's political, celebrity, or other influential associates." OPR Report at 168." In view of OPR's conclusions—and in the absence of any evidence to the contrary proffered by the defendant—the defendant has failed to establish that that she was an intended third party beneficiary of the NPA. Accordingly, the defendant lacks standing to enforce the NPA. C. The Defendant Has Offered No Basis for Additional Discovery or a Hearing The defendant's motion for discovery and a hearing fares no better. Lacking any evidence—much less any legal authority—that the NPA applies to this District or the crimes in the Indictment, the defendant asks the Court to order discovery and conduct a hearing. In short, 10 The OPR Report further reflects that in OPR's interview of Villafafia, she reported that she did not have anyone in mind aside from the four individuals named in the "co-conspirator" provision: "Villafafia told OPR that she was willing to include a non-prosecution provision for Epstein's co- conspirators, who at the time she understood to be the four women named in the proposed agreement, because the USAO was not interested in prosecuting those individuals if Epstein entered a plea. Villafafia told OPR, `[W]e considered Epstein to be the top of the food chain, and we wouldn't have been interested in prosecuting anyone else.' She did not consider the possibility that Epstein might be trying to protect other, unnamed individuals, and no one, including the FBI case agents, raised that concern." OPR Report at 70. Further, the OPR Report notes that: "Villafafia told OPR that, apart from the women named in the NPA, the investigation had not developed evidence of `any other potential co-conspirators.'" Id. at 81. Similarly, the report reflects that a supervisor at USAO-SDFL told OPR "that it never occurred to him that the reference to potential co-conspirators was directed toward any of the high-profile individuals who were at the time or subsequently linked with Epstein." OPR Report at 80-81. " Although the defendant correctly notes that the OPR Report reflects that the prosecutor remarked that Epstein "wanted to make sure that he's the only one who takes the blame for what happened," OPR Report at 167, that desire explains the existence of the "co-conspirator" provision, but it does not inform its meaning or scope. 21 EFTA00039468 the defendant asks this Court to authorize an extensive and burdensome fishing expedition, premised on the defendant's pure conjecture. The Court should deny the motion. Although the defendant asserts that the Court is obligated to conduct a hearing, she has failed to establish that any hearing is warranted. The defendant argues that courts conduct evidentiary hearings "where the existence or scope of a plea agreement or non-prosecution agreement is in genuine dispute." (Def. Mot. 1 at 29). But the defendant has not established any genuine factual dispute in this case that a hearing would be required to resolve. The defendant has offered bare conclusions in support of her motion, which are refuted by governing law, record evidence, and the four corners of the agreement itself. That is not a basis for a hearing. As the Second Circuit explained in United States v. Aleman, 286 F.3d 86 (2d Cir. 2002), "a district court need not conduct a hearing every time a defendant summarily accuses the government of failing to live up to an alleged bargain." Id. at 91. In that case, the court held that a hearing was required because the defendant had submitted affidavits from his attorney, as well as corroborating affidavits from other attorneys, and the Government had not submitted any evidence. Id.; see also United States v. Sattar, 272 F. Supp. 2d 348, 383 (S.D.N.Y. 2003) (applying Aleman, and ordering an evidentiary hearing based upon the defendant's submission of an affidavit from an attorney with knowledge of the alleged oral agreement). Similarly, in United States v. Feldman, 939 F.3d 182 (2d Cir. 2019), the Second Circuit held that a hearing was required based on the defendant's uncontested assertions about specific representations made to him by a prosecutor. Id. at 184, 190. Here, by contrast, the defendant has offered no evidence in support of her allegations. The defendant cannot seriously argue that she has made the type of showing that requires a hearing. For example, she has not offered any affidavits from Epstein's former defense attorneys claiming that the USAO-SDFL made promises that were not contained in the NPA. Nor has she 22 EFTA00039469 pointed to anything in the extensive record of either the OPR investigation or the civil litigation surrounding the NPA that would suggest that the NPA applies to this District, or to the crimes in the Indictment, or to Maxwell. In the absence of any such evidence—and in the face of substantial contrary evidence gathered in the civil litigation and OPR investigation—the Court has no obligation to conduct a hearing. For similar reasons, the defendant's motion for discovery should be denied. To the extent the defendant seeks discovery under Rule 16, she has failed to meet her burden. A defendant seeking discovery under Rule 16 "must make a prima fade showing of materiality and must offer more than the conclusory allegation that the requested evidence is material." United States v. Urena, 989 F. Supp. 2d 253, 261 (S.D.N.Y. 2013) (citations omitted). Here, the defendant has offered nothing more than her conjecture that some unspecified evidence might exist. The motion should be denied. II. The Indictment Is Timely Counts One through Four are timely charged because the applicable limitations period, 18 U.S.C. § 3283 (2003), permits prosecution for offenses "involving the sexual or physical abuse... of a child" at any time "during the life of the child," and each of the victims identified in the Indictment remains alive. Maxwell contends that Section 3283 should not be applied to conduct that predated its amendment in 2003 (Def. Mot. 2), but that argument is contrary to the text of the statute, Congress's clear intent when extending the statute of limitations, and the decisions of other circuits and district courts in this Circuit. In effect, the defendant's motion asks this Court to break new ground, and become the first court to hold that Section 3283 applies only prospectively. In the alternative, Maxwell argues that Section 3283 is inapplicable because the offenses charged in the Indictment do not "involv[e] the sexual or physical abuse . . . of a child." (Def. 23 EFTA00039470 Mot. 2 at 12-14). Yet her argument runs contrary to the weight of authority that has adopted the common-sense view that crimes that necessarily entail the sexual or physical abuse of children "involv[e] the sexual or physical abuse of a child." This Court should do the same and deny the motion. A. Statutory Background Between 1990 and 2006, Congress passed a series of laws that expanded the statute of limitations for prosecutions of crimes against minors, ultimately extending the statute of limitations to the lifetime of the minor victim and, for certain offenses, eliminating the statute of limitations entirely. These laws reflect a virtually unbroken congressional policy that the default five-year statute of limitations for federal crimes, 18 U.S.C. § 3282, is inadequate for such offenses. An extended statute of limitations is necessary because "child sex abuse offenses . . . may be difficult to detect quickly," in part because children often first report their abuse long after it occurs. Weingarten v. United States, 865 F.3d 48, 54 (2d Cir. 2017) (citing, e.g., David McCord, Expert Psychological Testimony About Child Complainants in Sexual Abuse Prosecutions, 77 J. Crim. L. & Criminology I, 60-61 (1986)). In 1990, Congress enacted a new statute of limitation for certain crimes against children, which stated: "No statute of limitation that would otherwise preclude prosecution for an offense involving the sexual or physical abuse of a child under the age of 18 years shall preclude such a prosecution before the child reaches the age of 25 years." Crime Control Act of 1990, Pub. L. No. 101-647, tit. II, § 225(a), 104 Stat. 4789, 4798 (codified at 18 U.S.C. § 3509(k) (1990)). In 1994, Congress re-codified this provision, moving it to 18 U.S.C. § 3283 with identical language. Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, tit. XXXIII, § 330018(a), 108 Stat. 1796, 2149 (codified at 18 U.S.C. § 3283 (1994)) ("No statute of limitations 24 EFTA00039471 that would otherwise preclude prosecution for an offense involving the sexual or physical abuse of a child under the age of 18 years shall preclude such prosecution before the child reaches the age of 25."). As the Second Circuit has recognized, "after nearly a decade, Congress began to view even the extended statute of limitations period in the 1994 version of § 3283 as `inadequate in many cases' because it released from criminal liability sex abusers whose crimes were not brought to the attention of federal authorities until after their victims turned twenty-five." Weingarten, 865 F.3d at 54 (citing H.R. Conf. Rep. No. 108-66, at 54 (2003)). Accordingly, in April 2003, Congress amended Section 3283 to permit the prosecution of sex offenses against minors at any time during the lifetime of the minor victim. Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act ("PROTECT Act") of 2003, Pub. L. No. 108-21, tit. II, § 202, 117 Stat. 650, 660 (codified at 18 U.S.C. § 3283 (2003)) ("No statute of limitations that would otherwise preclude prosecution for an offense involving the sexual or physical abuse, or kidnaping, of a child under the age of 18 years shall preclude such prosecution during the life of the child."). In January 2006, Congress further amended Section 3283 to its current form to permit the prosecution of such offenses during the lifetime of the victim or ten years after the offense, whichever is longer. Violence Against Women and Department of Justice Reauthorization Act of 2006, Pub. L. No. 109-162, tit. XI, § 1182(c), 119 Stat. 2960, 3126 (codified at 18 U.S.C. § 3283 (2006)) ("No statute of limitations that would otherwise preclude prosecution for an offense involving the sexual or physical abuse, or kidnaping, of a child under the age of 18 years shall preclude such prosecution during the life of the child, or for ten years after the offense, whichever is longer."). 25 EFTA00039472 Finally, later that same year, Congress enacted a new statute as part of the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587. That statute eliminated the statute of limitations entirely for certain crimes involving the sexual exploitation of minors. Id. tit. II, § 211(1), 120 Stat. at 616 (codified at 18 U.S.C. § 3299). B. The 2003 Amendment to Section 3283 Applies Retroactively Counts One through Four of the Indictment charge crimes that occurred between 1994 and 1997. At the time of the offense conduct, the applicable statute of limitations, 18 U.S.C. § 3283 (1994), ran until "the child reaches the age of 25." However, in 2003, while the statute of limitations had not yet run for the crimes charged in the Indictment,12 Congress amended the statute, extending the limitations period to permit a prosecution at any time "during the life of the child." 18 U.S.C. § 3283 (2003). Because the victims are all alive, the Indictment is timely under the 2003 amendment. Put simply, the 2003 amendment applies to any conduct that could have been charged at the time of its enactment. The legislative purpose behind Section 3283 and a plain reading of the statute compel this conclusion, and courts have repeatedly held that the 2003 amendment applies retroactively, provided that the statute of limitations had not run for the offense at the time of the amendment. See, e.g., United States v. Leo Sure Chief, 438 F.3d 920, 922-25 (9th Cir. 2006) ("Because Congress evinced a clear intent to extend, rather than shorten, the statute of limitations applicable to sexual abuse crimes, and because there is no ex post facto problem here, the prosecution was timely.") (citing United States v. Jeffries, 405 F.3d 682, 685 (8th Cir. 2005), cert. denied, 546 U.S. 1007 (2005)); United States v. Brown, 800 F. App'x 455, 461 (9th Cir. 2020) ("Because Congress evinced a clear intent to extend the statute of limitations for these types of 12 The timeliness of the charges in the Indictment in 2003 is discussed in greater detail below. 26 EFTA00039473 crimes in its amendments, and because there is no ex post facto problem here, the prosecution was timely."), cert. denied, No. 20-5064, S.Ct. , 2021 WL 78235 (Jan. 11, 2021); United States v. Pierre-Louis, No. 16 Cr. 541 (CM), 2018 WL 4043140, at *1 (S.D.N.Y. Aug. 9, 2018) (denying motion to dismiss child exploitation charges as time-barred) ("Defendant's argument rests on the erroneous premise that the law requires the defendant to have committed the charged offense after the effective date of the extension of the statute of limitations for the charge to not be time-barred. As long as the original statute of limitations had not lapsed when the extension went into effect, the prosecution is not time-barred."); United States v. Sensi, No. 08 Cr. 253, 2010 WL 2351484, at *2 (D. Conn. June 7, 2010) (holding that the 2003 amendment of Section 3283 applies to pre- enactment conduct, and rejecting the argument "that the lack of a savings clause in the 2003 version of section 3283 is fatal to extending the statute of limitations."); United State v. Nader, 425 F. Supp. 3d 619, 624-30 (E.D. Va. 2019) (holding that the 2003 amendment of Section 3283 applies to pre-enactment conduct). In Landgraf v. USI Film Products, 511 U.S. 244 (1994), the Supreme Court set forth a two-part framework for determining whether a statute applies retroactively. At step one of the analysis, "if Congress `expressly prescribed' that a statute applies retroactively to antecedent conduct, `the inquiry ends[] and the court enforces the statute as it is written,' save for constitutional concerns." Weingarten, 865 F.3d at 54-55 (quoting In re Enter. Mon. Acceptance Co. Sec. Litig. ("Enterprise'), 391 F.3d 401, 405-06 (2d Cir. 2004)). However, "when a statute `is ambiguous or contains no express command' regarding retroactivity, a reviewing court must determine whether applying the statute to antecedent conduct would create presumptively impermissible retroactive effects." Id. For the reasons set forth below, the 2003 amendment of 18 U.S.C. § 3283 satisfies both steps of Landgraf, and should be applied to pre-enactment conduct. 27 EFTA00039474 1. The 2003 Amendment Satisfies Step One of Landgraf At step one of the Landgraf analysis, the question is whether Congress has "expressly prescribed the statute's proper reach." Landgraf, 511 U.S. at 280. When evaluating Congress's intent at step one of the Landgraf inquiry, the Second Circuit has considered both the text of the statute and the legislative history. Enterprise, 391 F.3d at 406-08. In this case, the amended versions of Section 3283 evince Congress's express intent to extend the statute of limitations. The text and history of Section 3283 firmly establish that, with each amendment of the statute of limitations, Congress intended to repeal and replace the prior version of the statute and thereby extend the time to bring live charges of child sexual abuse. The 2003 amendment, like the 1994 version of the statute, specifically states that "[n]o statute of limitations that would otherwise preclude prosecution" of a child sexual offense "shall preclude" prosecution of such offense during the life of the victim. 18 U.S.C. § 3283 (2003). Claims that were live in 2003 were, at the time, subject to the then-existing statute of limitations, which ran until the victims reached the age of 25. Whenever that statute of limitations ran, it would "otherwise preclude prosecution." Instead, that statute of limitations was replaced by the 2003 amendment. The Eighth and Ninth Circuits have both held that Congress intended to extend the statute of limitations for live claims of sexual abuse. In United States v. Jef•ies, 405 F.3d 682 (8th Cir. 2005), the Eighth Circuit reasoned that "both the title and wording of § 3509(k) indicate that Congress intended by it to extend the general statute of limitations. . § 3509(k) was later recodified at § 3283 and continued to extend the statute of limitations in child abuse cases." Id. at 684 (citing United States v. Johns, 15 F.3d 740, 743 (8th Cir. 1994) (holding that an earlier version of § 3509(k) applied to conduct predating its enactment in 1990)). The Eighth Circuit's reasoning—which addressed earlier versions of the statute—applies with equal, if not greater, 28 EFTA00039475 force to the 2003 amendment, which established an even broader statute of limitations. Following Jqffries, the Ninth Circuit has similarly held that Sectio