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k7e2MaxC kjc UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES OF AMERICA, v. GHISLAINE MAXWELL, Defendant. Before: New York, N.Y. 20 Cr. 330 (AJN) x Teleconference Arraignment Bail Hearing July 14, 2020 3:05 p.m. HON. ALISON J. NATHAN, District Judge APPEARANCES AUDREY STRAUSS United States Attorney for the Southern District of New York BY: Assistant United States Attorneys COHEN & GRESSER, LLP Attorneys for Defendant BY: MARK S. COHEN CHRISTIAN R. EVERDELL HADDON MORGAN & FOREMAN, P.C. Attorneys for Defendant BY: JEFFREY S. PAGLIUCA LAURA A. MENNINGER SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066216 k7e2MaxC kjc THE COURT: Good afternoon, everyone. This is Judge Nathan presiding. This is United States v. Ghislaine Maxwell, 20 Cr. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 330. I will take appearances from counsel, beginning with counsel for the defendant. : Good afternoon, your Honor. Mark Cohen, Cohen & Gresser, for Ms. Maxwell. Also appearing with me today is my partner Chris Everdell of Cohen & Gresser and Jeff Pagliuca and Laura Menninger of the Haddon Morgan firm. Good afternoon, your Honor. THE COURT: Good afternoon, Mr. Cohen. And for the government. : Good afternoon, your Honor. for the government. I'm joined by my colleagues and And also, with the court's permission, we learned that the executive staff for the U.S. Attorney's office were unfortunately not able to Connecticut at the overflow dial-in so, with the court's permission, we would like to dial them in from a phone here if that's acceptable to the court. THE COURT: The last word, the overflow dial-in was not full. Just a moment and we will make sure that they can connect in. And let me say good afternoon, Ms. Maxwell, as well. THE DEFENDANT: Good afternoon, Judge. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066217 k7e2MaxC kjc 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Ms. Maxwell, are you able to hear me and see me okay? THE DEFENDANT: Yes, thank you. THE COURT: And are you able to hear Mr. Cohen and counsel for the United States as well? THE DEFENDANT: Yes. Thank you. THE COURT: All right. If at any point you have difficulty with any of the technology, you can let someone there know right away, let me know, and we will pause the proceedings before going any further. Okay? THE DEFENDANT: Thank you, Judge. THE COURT: All right. Just a minute while we check on the call-in line. : Thank you, your Honor. (Pause) : Your Honor, apologies. We have also heard from colleagues in the office that the line is full. We have, however, been able to dial in the executive staff to a phone number here and my understanding is that they can hear and participate that way, if that's acceptable to the court. But of course we defer to the court's preference. THE COURT: We are concerned about feedback from being on a speakerphone in that room. The phone number for nonspeaking co-counsel that was provided, that line is not full, and I would assume the executive leadership of the office SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066218 4 k7e2MaxC kjc falls within that category, so they may call in to that number. Yes, your Honor. Thank you. We will do that. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: All right. : Thank you, your Honor. THE COURT: All right. Thank you. Then we will go ahead and proceed. I have called the case. I have taken appearances. Counsel, let me please have oral confirmation that the court reporter is on the line. THE COURT REPORTER: Good afternoon, your Honor. Kristen Carannante. THE COURT: Good afternoon, and thank you so much. We also have on the audio line Pretrial Services Officer Leah Harmon and -- THE PRETRIAL SERVICES OFFICER: Hello, your Honor. Good afternoon. THE COURT: Good afternoon. Thank you. We are here today for the arraignment, the initial scheduling conference, and bail hearing in this matter. As everyone knows, we are in the middle of the COVID-19 pandemic. I am conducting this proceeding remotely, pursuant to the authority provided by Section 15002 of the CARES Act and the standing orders issued by our Chief Judge pursuant to that act. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066219 k7e2MaxC kjc I am proceeding by videoconference, which I am 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 accessing remotely. Defense counsel and counsel for the government are appearing remotely via videoconference and the defendant, Ms. Maxwell, is accessing this videoconference from the MDC in Brooklyn. Ms. Maxwell, I did confirm that you could hear me and see me; and, again, if at any point you have any difficulty with the technology, please let me know right away. Okay? THE DEFENDANT: Thank you, your Honor. I will do that. THE COURT: Thank you. And if at any point you would like to speak privately with Mr. Cohen, let me know that right away, and we will move you and your counsel into a private breakout room where nobody else will be able to see or hear your conversation, okay? THE DEFENDANT: Again, thank you, your Honor. I appreciate that. Thank you. THE COURT: Thank you. Mr. Cohen, likewise, should you request to speak with Ms. Maxwell privately, don't hesitate to say that. MR. COHEN: Thank you, your Honor. THE COURT: We will turn now to the waiver of physical presence. I did receive a signed waiver of physical presence form dated July 10, 2020. Mr. Cohen, could you please is describe the process by SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066220 k7e2MaxC kjc which you discussed with Ms. Maxwell her right to be present and the indication of her knowing and voluntary waiver of that 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 right provided on this form. MR. COHEN: Yes, your Honor. We, given the press of time, we were not able to physically get the form to our client, but my partner Chris Everdell and I went through it with her, read it to her, and she gave us authorization to sign on her behalf and that's reflected on the form in the boxes where indicated, your Honor. THE COURT: Okay. Ms. Maxwell, is that an accurate account of what occurred? THE DEFENDANT: That is completely accurate, your Honor. Yes. THE COURT: And you have had the form read to you or you have it physically now at this point? THE DEFENDANT: That is correct, your Honor. THE COURT: Okay. And you have had time to discuss it with your attorney? THE DEFENDANT: I have, your Honor. Thank you. THE COURT: Okay. And do you continue to wish to waive your right to be physically present and instead to proceed today by this videoconference proceeding? THE DEFENDANT: Yes, your Honor. THE COURT: All right. I do find a knowing and voluntary waiver of the right to be physically present for this SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066221 k7e2MaxC kjc arraignment, scheduling conference, and bail hearing. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Counsel, as you know, to proceed remotely today, in addition to the finding I have just made, I must also find that today's proceeding cannot be further delayed without serious harms to the interests of justice. does the government wish to be heard on that? : Yes, your Honor. The government submits that proceeding remotely in this fashion would protect the interests of the parties and the safety in view of the pandemic. We further submit that this proceeding can be conducted remotely with full participation of the parties in view of the preparation and steps everyone has taken to ensure proper participation. THE COURT: All right. Thank you. Mr. Cohen? MR. COHEN: Your Honor, we have agreed to proceed remotely as your Honor just laid out. THE COURT: Okay. I do find that today's proceeding cannot be further delayed without serious harms to the interests of justice for, among other reasons, that the defendant, who is currently detained, seeks release on bail. The final preliminary matter I will address is public access to the proceeding, which has garnered significant public interest. As I have indicated in prior orders, the court has SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066222 k7e2MaxC kjc 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 arranged for a live video feed of this proceeding to be set up in the jury assembly room at the courthouse. This is the largest room available and, with appropriate social distancing, it can safely accommodate 60 people. The court has further provided a live video feed to the press room at the courthouse where additional members of the credentialed in-house press corps can watch and hear the proceeding. Additionally, the court has provided a live audio feed for members of the public. My prior order indicated that the line can accommodate 500 callers, but with thanks of the court staff, that capacity has been increased to 1,000 callers. Lastly, the court has provided through counsel a separate call-in line to ensure audio access to nonspeaking co-counsel, any alleged victims identified by the government, including those who wish to be heard on the question of pretrial detention, and any family members of the defendant. That line is operational now as well. Counsel, beginning with Mr. Cohen, any objection to these arrangements regarding public access? MR. COHEN: No, your Honor. THE COURT: : No, your Honor. THE COURT: Then I will make the following findings: First, COVID-19 constitutes a substantial, if not overriding, reason that supports the court's approach to access SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066223 k7e2MaxC kjc 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 in this case. As the chief judge of the district has recognized in order number 20MC176, COVID-19 remains a national emergency that restricts normal operations of the courts. Conducting this proceeding in person is not safely feasible. Second, the measures taken by the court are no broader than necessary to address the challenges posed by the pandemic. Although the number of seats in the jury assembly room is limited to 60, it is necessary to do so for public and courthouse staff safety and is closely equivalent to the number of people who would be able to watch an in-court proceeding in a regular-sized courtroom. The number of people who will be able to hear the live audio of this proceeding far exceeds access under normal in-person circumstances. Lastly, given the safety and technology limitations, there are no reasonable alternatives to the measures the court has taken. Accordingly, the access provided is fully in accord with the First and Sixth Amendment public trial rights. With those preliminary matters out of the way, counsel, I propose we turn to the arraignment. am I correct that this is an arraignment on the S1 superseding indictment? : That's correct, your Honor. THE COURT: Can you explain what the difference is between the S1 and the original indictment? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066224 IC k7e2MaxC kjc 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 : Yes, your Honor. The difference is a small ministerial correction, a reference to a civil docket number contained in the perjury counts, which are Counts Five and Six of the superseding indictment. Aside from the alteration of those docket numbers, the reference to them, there are no other changes to the indictment. THE COURT: All right. Again, I will conduct the arraignment on the S1 indictment. Ms. Maxwell, have you seen a copy of the S1 indictment in this matter? THE DEFENDANT: I saw the original indictment, your Honor. The original THE COURT: Okay. All right. Mr. Cohen, did you have an opportunity to discuss with Ms. Maxwell the ministerial change that was completed by way of the superseding indictment? MR. COHEN: Yes, yes, Judge. We have, your Honor. THE COURT: Any objection to proceeding on the arraignment of the S1 indictment, Mr. Cohen? MR. COHEN: No, your Honor. THE COURT: All right. Ms. Maxwell, have you had an opportunity to discuss the indictment in this case with your attorney? THE DEFENDANT: I have, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066225 k7e2MaxC kjc 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: All right. (Indiscernible crosstalk) THE COURT: Go ahead. THE DEFENDANT: No. I said I have been able to discuss it, your Honor, with my attorney. THE COURT: Thank you. You are entitled to have the indictment read to you here in this open court proceeding or you can waive the public reading. Do you waive the public reading? THE DEFENDANT: I do, your Honor. I do waive THE COURT: How do you wish to -- THE DEFENDANT: -- your Honor. THE COURT: Thank you. And how do you wish to plead to the charge? THE DEFENDANT: Not guilty, your Honor. THE COURT: All right. I will enter a plea of not guilty to the indictment in this matter. Counsel, we will turn now to the scheduling conference. I would like to begin with a status update from the government. , you should include in your update a description of the status of discovery. Please describe the categories of evidence that will be produced in discovery. 1 will also ask you to indicate how you will ensure that the government will fully and timely meet all of its constitutional SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066226 12 k7e2MaxC kjc and federal law disclosure obligations. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Go ahead, • : Thank you, your Honor. With respect to the items that the government anticipates will be included in discovery in this case, we expect that those materials will include, among other items, search warrant returns, copies of search warrants, subpoena returns, including business records, photographs, electronically stored information from searches conducted on electronic devices. In addition, the materials with respect to the core of the case also include prior investigative files from another investigation in the Southern District of Florida among other items. With respect to the status of discovery, the government has begun preparing an initial production and are prepared to produce a first batch of discovery as soon as a protective order is entered by the court. With respect to the status of the proposed protective order, the government sent defense counsel a proposed protective order last week. We have touched base about the status of that with defense counsel, and they conveyed that they would like to continue reviewing and discussing it with the government, which we plan to do shortly after this conference, with an eye towards submitting a proposed protective order to the court as soon as possible. Following SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066227 13 k7e2MaxC kjc 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the entry of that protective order, as I noted, your Honor, the government is prepared to make a substantial production of discovery. Your Honor, in advance of the conference, the government and defense counsel proposed a joint schedule for discovery, motion practice, and a proposed trial date, in particular, the date selected in that schedule with an eye towards assuring that there was sufficient time for the government to do a careful and exhaustive and thorough review of all of the materials that I just referenced to make sure that the government is complying with its discovery obligations in this case, which we take very seriously. We expect that the bulk of the relevant materials will be produced in short order, primarily by the end of this summer, with additional materials to follow primarily in a category I mentioned before, your Honor, of electronically stored information, which is subject to an ongoing privilege review which we discussed and communicated with defense counsel about. We have proposed a scheduling order again to be very thorough in our review of discovery and in files in various places where they may be located and we are taking an expansive and thoughtful approach to our obligations in this case, your Honor. THE COURT: Let me just follow up specifically, since you have referenced prior investigative files, to the extent we have seen in other matters issues with complete disclosure of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066228 11 k7e2MaxC kjc 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 materials, it has been in some instances due to precisely that factor. So has there been a plan developed to ensure that down the road we are not hearing that there were delays or problems with discovery as a result of the fact that part of the disclosure obligation here includes materials from other investigative files? : Yes, your Honor. The files in particular that I am referring to are the files in the possession of the F.B.I. in Florida in connection with the previous investigation of Jeffrey Epstein. The physical files themselves were shipped to New York and are at the New York F.B.I. office. They have been imaged and scanned and photographed to make sure that a comprehensive review can be conducted, and they are physically in New York so that we can have access to those files. And again, as we have heard in ongoing information, we are particularly thoughtful about those concerns given the history of this case and the volume of materials and the potential sensitivities, your Honor. THE COURT: Beyond the paper files which you have just indicated, the physical files, have you charted a path for determining whether there is any other additional information that must be disclosed? : Your Honor, just to clarify, is your question with respect to the previous investigation or -- I apologize, your Honor. I wasn't sure what you meant. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066229 15 k7e2MaxC kjc THE COURT: Among other things, but, yes, I'm drilling 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 down specifically on that since that has been, in somewhat comparable circumstances in other matters, the source of issues related to timely disclosures. : Yes, your Honor. Our team met personally with the F.B.I. in Florida to make sure that we had the materials, and it was represented to us that the materials that the F.B.I. provided in Florida were the comprehensive set of materials. We will certainly have ongoing conversations to make sure that that is the case and if, in our review of files, we discover other materials, we will handle that with great care, and we are particularly sensitive to that concern. THE COURT: And I expect here, and in all matters, not just accepting of initial representations made regarding full disclosure, but thoughtful and critical pushing and pressing of questions and issues with respect to actively retrieving any appropriate files. Are we on the same page, : Yes, your Honor. Very much so. THE COURT: All right. Thank you. With that, why don't you go ahead and lay out the proposed schedule that you have discussed with Mr. Cohen, and then I will hear from Mr. Cohen if he has any concerns with that proposal. : Yes, your Honor. We would propose the completion of discovery, to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066230 16 k7e2MaxC kjc 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 include electronic materials, to be due by Monday, November 9 of this year, and following that we would propose the following motion schedule: that defense motions be due by Monday, December 21 of this year; that the government's response be due on Friday, January 22, 2021; and that replies be due on Friday, February 5, 2021. THE COURT: All right. Mr. Cohen, based on the government's description of both the quantity and quality of discovery, is that schedule that's been laid out sufficient from your perspective to do everything that you need to do? MR. COHEN: Your Honor, just two points in that regard. I think counsel for the government did not mention in the e-mail we had sent to your Honor's law clerk that August 21 would be the deadline for production of search warrant applications and the subpoena returns. I think she just failed to mention it for the record. That would also be part of the schedule. THE COURT: Thank you. , do you agree? : That's correct, your Honor. I apologize. We did include that in the e-mail to your Honor's chambers, and that is correct. And thank you, counsel, for clarifying that. MR. COHEN: Two additional points, your Honor. The trial schedule that we are agreeing to, of course subject to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066231 k7e2MaxC kjc 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the court's approval, assumes there will be no substantive superseding indictment. If there is one, which the government has advised us they don't believe is imminent or I assume not at all, we might have to come back to the court to address not just trial schedule but other schedule as well. And I am assuming -- we take your Honor's points about the issues on discovery, and we agree with them, particularly as to electronic discovery; and I am assuming that, as this unfolds, if we spot an issue we think needs further attention, we will be able to bring it to the court's attention. Those are my points. THE COURT: Thank you, Mr. Cohen. Let me go ahead and ask, Mr. Cohen has made a representation but I will ask if you do anticipate at this time filing any further superseding indictments adding either defendants or additional charges? : Your Honor, our investigation remains ongoing, but at this point we do not currently anticipate seeking a superseding indictment. THE COURT: All right. So with that -- and also let me ask, , just because it is next on my list, what processes the government has put in place to notify alleged victims of events and court dates pursuant to the Crime Victims Rights Act. : Yes, your Honor. I am happy to give the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066232 18 k7e2MaxC kjc courts details about the process we used for notification for this conference and also what we anticipate to use going forward. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 So to begin with, the government notified relevant victims or their counsel immediately following the arrest of the defendant on July 2 about the fact of the arrest and the initial presentment scheduled for later that day. In advance of the initial presentment, those victims were provided the opportunity to participate through the court's protocol for appearances in New Hampshire. On July 7, the court set a date for arraignment and bail hearing on July 14, today, and by the following day from the court's order, the government had notified relevant victims or their counsel of that scheduling order and advised victims and counsel of their right to be heard in connection with the bail hearing. On that same day, the government posted to its victim services website, including a link to the indictment, as well as scheduling information relating to the hearing. On July 9, the government updated the website to include the dial-in information that the court provided. In addition, on July 8, the government sent letter notifications to individuals who have identified themselves as victims of Ghislaine Maxwell or Jeffrey Epstein that were not specifically referenced in the indictment. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066233 19 k7e2MaxC kjc 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Our process going forward, as we noted in that letter to victims, is that we will use an opt-in process so we will not notify individuals who do not wish to receive additional notifications but will continue to provide ongoing information about upcoming conferences and relevant details on the government's victim services website. With respect to this specific hearing, the government has been advised by counsel to three victims of their interest in being heard in connection with today's bail proceeding. One victim's views are expressed in the government's reply memorandum; one victim has submitted a statement to the government and asked that the government read it during today's proceedings; and one victim has asked to be heard directly, and the government anticipates that she will make a statement at any time during this proceeding as necessitated by the court. THE COURT: All right. Thank you. Then, with that, returning to the schedule that you have laid out, and I thank counsel for conferring in advance, as to a proposed schedule, Mr. Cohen, let me just finalize if you agree to the proposed schedule that has been laid out by and supplemented by you? MR. COHEN: Yes, your Honor. THE COURT: All right. Thank you. And, you continue to support the proposed schedule? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066234 20 k7e2MaxC kjc 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 : Yes, your Honor. THE COURT: All right. Then I will set the schedule as jointly proposed by counsel. To reiterate, I am setting let me ask, , if we are going to proceed to trial, how long of a trial does the government anticipate? : Your Honor, the government anticipates that its case in chief would take no more than two weeks. But in terms of the length of time to block out a trial date, in an abundance of caution, in view of the need for jury selection and the defense case, we would propose blocking three weeks for trial. THE COURT: All right. Thank you. With that, I will adopt the schedule. I hereby set trial to commence on July 12, 2021, with the following pretrial schedule: Initial nonelectronic disclosure generally, to include search warrant applications and subpoena returns, to be due by Friday, August 21, 20. Completion of discovery, to include electronic materials, to be due by Monday November 9, 2020. Any initial pretrial defense motions, based on the indictment or disclosure material and the like to be due by Monday, December 21, 2020. If any motions are filed, the government's response due by Friday, January 22, 2021. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066235 k7e2MaxC kjc 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Any replies due by Friday, February 5, 2021. If any motions seek an evidentiary hearing, I will reach out, chambers will reach out to schedule an evidentiary hearing. And, as indicated, trial to commence on July 12, 2021. In advance of trial, following motion practice, the court will put out a schedule regarding pretrial submissions, including in limine motions and the like. With that, counsel, other matters to discuss regarding scheduling? Mr. Cohen? MR. COHEN: Not at this time, your Honor, not from the defense at this time. THE COURT: Thank you. : Nothing further from the government regarding scheduling, your Honor Thank you. THE COURT: Okay. And, , does the government seek to exclude time under the Speedy Trial Act? : Yes, your Honor. In view of the schedule and the interests of producing discovery and permitting time for the defense to review discovery, contemplate any motions and pursue those motions, the government would seek to exclude time from today's date until our trial date as court set forth today. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066236 22 k7e2MaxC kjc 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Mr. Cohen, any objection? MR. COHEN: No, your Honor. THE COURT: Okay. I will exclude time from today's date until July 12, 2021, which I have said is a firm trial date. I do find that the ends of justice served by excluding this time outweigh the interests of the public and the defendant in a speedy trial. The time is necessary for the production of discovery and view of that by defense, time for the defense to consider and prepare any available motions and, in the absence of resolution of the case, time for the parties to prepare for trial. To and Mr. Cohen, although I have not set an interim status conference in the case, we do have our motion schedule, but for both sides, if at any point you wish to be before the court for any reason, simply put in a letter and we will get something on the calendar as soon as we conceivably can. With that, Mr. Cohen, let me ask counsel if there is any reason that we should not turn now to the argument for bail? MR. COHEN: No, your Honor. THE COURT: : No, your Honor. Thank you. THE COURT: All right. I will hear on that question. It is the government's motion for detention, so I propose SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066237 23 k7e2MaxC kjc 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 hearing from the government first, and then any alleged victims who have indicated that they wish to be heard pursuant to 18 U.S.C. 3771(a)(4), and then I will hear from Mr. Cohen. Any objection to proceeding thusly, Mr. Cohen? MR. COHEN: No, your Honor. THE COURT: : Thank you, your Honor. Your Honor, as we set forth in our moving papers, the government strongly believes that this defendant poses an extreme risk of flight. Pretrial Services has recommended detention, the victims seek detention, and the government respectfully submits that the defendant should be detained pending trial. Your Honor, there are serious red flags here. The defendant has significant financial means. It appears that she has been less than candid with Pretrial Services. She has not come close to thoroughly disclosing her finances to the court. She has strong international ties and appears to have the ability to live beyond the reach of extradition. She has few, if any, community ties, much less a stable residence that she can propose to the court to be bailed to. And she has a strong incentive to flee to avoid being held accountable for her crimes. Because the defendant is charged with serious offenses involving the sexual abuse of minors, your Honor, there is a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066238 2, k7e2MaxC kjc 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 legal presumption that there are no conditions that could reasonably assure her return to court and, your Honor, the defendant has not come anywhere close to rebutting that presumption. Turning first to the nature and seriousness of the offense and the strength of the evidence, the indictment in this case arises from the defendant's role in transporting minors for unlawful sexual activity and enticing minors to travel to engage in unlawful sexual active and participating in a conspiracy to do the same. The indictment further charges that the defendant perjured herself, that she lied under oath to conceal her crimes. Your Honor, the charged conduct in this case is disturbing and the nature and circumstances of the offense are very serious. The defendant is charged with participating in a conspiracy to sexually exploit the vulnerable members of our community. In order to protect the privacy of the victims, I'm not going to go into details, your Honor, about the particular victims beyond what's contained in the indictment and our briefing; but, as the indictment alleges, the defendant enticed and groomed girls who were as young as 14 years old for sexual abuse by Jeffrey Epstein, a man who she knew was a predator with a preference for underaged girls. The indictment alleges that the defendant participated in some of these acts of abuse herself, including sexualized massages in which the victims SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066239 25 k7e2MaxC kjc 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 were sometimes partially or fully nude. She also encouraged these minors to engage in additional acts of abuse with Jeffrey Epstein. The indictment makes plain, your Honor, this was not a single incident or a single victim or anything isolated but, instead, it was an ongoing scheme to abuse multiple victims for a pattern of years. This is exceptionally serious conduct. Given the strength of the government's evidence and the serious charges in the indictment, there is an incredibly strong incentive for the defendant to flee, an incentive for her to become at that fugitive to avoid being held accountable and to avoid a lengthy prison sentence. The history and characteristics of the defendant underscores the risk of flight that she poses. The Pretrial Services report confirms that the defendant has been moving from place to place for some time, your Honor; and most recently it appears that she spent the last year making concerted efforts to conceal her whereabouts whilst moving around New England, most recently to New Hampshire, which I will discuss momentarily with respect to that particular THE COURT: : -- property. THE COURT: there is one assertion in the defense papers that I don't think I have seen the government's response to, and that is the contention that Ms. Maxwell, through counsel, kept in touch with the government since the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066240 Lb k7e2MaxC kjc 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 arrest of Mr. Epstein. Is that accurate and did that include information as to her whereabouts? : Your Honor, that information did not include information about her whereabouts for starters; and, second, your Honor, the defendant's communications through counsel with the government began when the government served the defendant with a grand jury subpoena following the arrest of Jeffrey Epstein. So it is unsurprising that her counsel reached out to the government, which is in the ordinary course when an investigation becomes overt. The government's communications with defense counsel have been minimal during the pendency of this investigation. Without getting into the substance, those contacts have not been substantial, your Honor. And to the court's question, they certainly have not included any information about defendant's whereabouts. THE COURT: All right. Go ahead. : Thank you, your Honor. It appears that the defendant has insufficient ties to motivate her to remain in the United States. With respect to her family circumstances, she does not have children, she does not appear to reside with any immediate family members, and she doesn't have any employment that would require her to remain in the United States. But, by contrast, she has extensive international SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066241 27 k7e2MaxC kjc 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ties. While she is a naturalized citizen of the United States, she is a citizen of France and the United Kingdom. She grew up in the United Kingdom and has a history of extensive international travel. She owns a property in the United Kingdom. Your Honor, there is a real concern here that the defendant could live beyond the reach of extradition indefinitely. The government has spoken with the Department of Justice attach6s in the United Kingdom and France. With respect to France, we have been informed that France will not extradite a French citizen to the United States as a matter of law, even if the defendant is a dual citizen of the United States. As well, we have been informed that there is an extradition treaty between the United Kingdom and the United States. The extradition process would be lengthy, the outcome would be uncertain, and it's very likely that the defendant would not be detained during the pendency of such an extradition proceeding. Those circumstances raise real concerns here. Particularly because the defendant appears to have the financial means to live beyond the reach of extradition indefinitely. As we detailed in our briefing, your Honor, the defendant appears to have access to significant and undetermined and undisclosed wealth. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066242 28 k7e2MaxC kjc In addition to the financial information described in 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the government's memoranda, we note, your Honor, that in the Pretrial Services report it appears that the defendant tried initially to brush off the subject of her finances when the Pretrial Services officer asked her, noting that she didn't have those details. The defendant ultimately provided limited, unverified, and questionable information that now appears in the Pretrial Services report. She listed bank accounts totaling less than a million dollars and a monthly income of nothing. Zero dollars per month of income. In addition to the matter of her finances, the report raises other concerns about whether the defendant has been fully transparent with the court or whether she is being evasive. THE COURT: you have emphasized the indication on the financial report of zero dollars of the income. Does the government think that there is income? Is there some uncertainty as to whether that is investment income as opposed to employment income or the like? What is the reason for the emphasis on that or to the extent it is an indication that the government finds that implausible? : Yes, your Honor. Separate from the matter of employment, it is very unclear whether the defendant is receiving proceeds from trust accounts or an inheritance or means of other kinds. It is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066243 29 k7e2MaxC kjc 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 simply implausible that the defendant simply has a lump set of assets and no other stream of income, especially given the lifestyle that she has been living and as detailed in the Pretrial Services report. It just doesn't make sense. Either there are other assets or there is other income. We can't make sense of this lifestyle and this set of financial disclosures. This just doesn't make sense. And as I will detail in a moment, your Honor, it is inconsistent with the limited reference we have been able to obtain as we have been making an effort to trace the defendant's finances. On that subject, your Honor, the report does raise concerns about whether the defendant has been fully transparent about her finances. As one example, the defendant told Pretrial Services that the New Hampshire property was owned by a corporation, that she does not know the name of the corporation, but that she was just permitted to stay in the house. It is difficult to believe that that was a forthcoming answer because it is implausible on its face and very confusing, but the government has continued to investigate the circumstances surrounding the purchase of that New Hampshire property. This morning, your Honor, I spoke with an F.B.I. agent who recently interviewed a real estate agent involved in that transaction in New Hampshire. The real estate agent told the F.B.I. that the buyers to the house introduced themselves to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066244 30 k7e2MaxC kjc 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 her as Scott and Janet Marshall, who both have British accents. Scott Marshall told her that the -- that he was retired from the British military and he was currently working on writing a book. Janet Marshall described herself as a journalist who wants privacy. they told the agent they wanted to purchase the property quickly through a wire and that they were setting up an LLC. Those conversations took place in November 2019. Your Honor, following the defendant's arrest, the real estate agent saw a photograph of the defendant in the media and realized that the person who had introduced herself as Janet Marshall, who had toured the house and participated in these conversations about the purchase, was the defendant, Ghislaine Maxwell. That series of facts, which I just learned about this morning, your Honor, are concerning for two reasons. First, additionally, it appears that the defendant has attempted to conceal an asset from the court, and at the very least she has not been forthcoming in the course of her Pretrial Services interview; and, second, it appears that the defendant has used an alias and that she was willing to lie to hide herself and hide her identity and we discussed the additional indicia in our briefing your Honor. So that raises real concerns. Moreover, the defendant's claims about her finances to Pretrial Services should be concerning to the court for additional reasons. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066245 k7e2MaxC kjc 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: I'm sorry, , if I may pause you before moving on from those points. There is a basic dispute within the papers as to, I think, efforts similar to the ones you have described that are efforts to hide from authorities, which would certainly be an indication of risk of flight or whether, in light of the notoriety and public interest that the case has generated following the indictment of Mr. Epstein, whether it was an effort to protect privacy and hide from press for privacy reasons. How does the government suggest that that factual determination be resolved, if you agree that it should, and what is your general response to the veracity of that assertion? : Yes, your Honor. As we discussed in our reply brief, your Honor, in our view, there is no question these circumstances are relevant to the court's determination with respect to bail for a number of reasons. The first is, irrespective of the defendant's motive, these facts make clear to the court that the defendant has the ability to live in hiding, that she is good at it, that she is willing to do it even if it compromises her relationship and contacts with other people and, as the information provided by the real estate agent underscores, she is good at it and that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066246 32 k7e2MaxC kjc 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 she passes. In other words, even though, as defense claims, that she is widely known, that there is press everywhere, she was able to pass during the purchase of a real estate transaction under a fake name and not be detected. So there really can be no question that the defendant is willing to lie about who she is, that she can live in hiding, that she has the means to do so. All of those things should be extremely concerning to the court, your Honor, as the court evaluates whether the defendant has the ability and willingness to live off the grid indefinitely. A year is an extremely long period of time to live in hiding, undetected by the public. And so all of those things are concerning. With respect to the question of motive, your Honor, the government submits the court need not reach that ultimate issue, but we noted, your Honor, that there are indicia during the circumstances of the defendant's arrest that suggested that there was a motive to evade detection by law enforcement. But the bigger picture, your Honor, is the defendant's -- THE COURT: : -- ability -- THE COURT: -- I was surprised that that information wasn't provided until the reply brief. Was there a reason for that? Yes, your Honor. The government wanted to be very careful to make sure we had full and accurate SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066247 33 k7e2MaxC kjc 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 information. So we were first notified about the circumstances the morning of the defendant's arrest, but I wanted to personally confer with the agent who was involved in breaching the door and verify that before including that information in a brief before the court. That's the reason for the delay, your Honor. THE COURT: Okay. But the government has done that confirmation process and is confident of the information provided and the basic contention there is -- the basic contention there is that she resisted opening the door in the face of being informed that authorities were seeking entry and there is a suggestion of an effort to conceal location monitoring of some type by placing a cell phone in foil of some kind. Could you explain what the government's understanding factually is and what you think I should derive from that? : Yes, your Honor. And, with apologies, we were very careful to make sure that the specific language in our briefing was accurate in consultation with the agents, so I don't want to add additional facts or speak extemporaneously about that; but, in short, that is correct that the defendant did not respond to law enforcement announcing their presence and directing her to open the door; that, instead, she left and went into a separate room. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066248 k7e2MaxC kjc And then, separately, the details about the cell 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 phone, as the court noted, are contained in our brief and we submit that there could be no reason for wrapping a cell phone in tinfoil except for potentially to evade law enforcement, albeit foolishly and not well executed. THE COURT: All right. Go ahead. : Thank you, your Honor. I believe I was discussing the defendant's finances, which underscore the concern about the defendant's ability to flee and about her questionable candor to the court. We submit there are concerns there for two reasons, your Honor. The first is that we learned that records relating reflecting to client information for a SWIFT bank include self-reported financial information from the defendant. In other words, when the account was opened, there were disclosures made about the defendant's finances. In those records, which are dated January 2019, the defendant's annual income is listed as ranging from $200,000 to approximately half a million dollars. And both her net worth and liquid assets are listed as ranging from $10 million and above. Second, as we noted in our reply, the defendant is the grantor of a trust account in the same SWIFT bank with assets of more than $4 million as of last month. Bank documents reflect that the trust has three trustees, one of whom has the authority to act independently. One of those trustees is a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066249 k7e2MaxC kjc 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 relative of the defendant and the other appears to be a close associate. Despite having put millions of dollars into this trust, your Honor, and despite its assets being controlled by a relative and close associate, the defendant mentions it not once in her motion before the court or in her Pretrial Services interview; and, in fact, despite the fact that the government said in its opening brief that the defendant's finances and her uncertain amount of wealth, including issues about whether her wealth was stored abroad, are serious concerns with respect to the defendant's risk of flight, the defendant's opposition does not discuss this at all. There is no mention of the defendant's finances and no effort to address those concerns whatsoever. In sum, your Honor, the court has been given virtually no information about the defendant's possession of and apparent access to extensive wealth. The court should not take that concealment, your Honor, we respectfully submit, as an invitation to demand further details, but instead to recognize that if the court can't rely on this defendant to be transparent at this basic initial stage, the court cannot rely on her to return to court if released. In short, she has not earned the court's trust. Finally, your Honor, turning to the defendant's proposed bail package, in light of all of the red flags here SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066250 36 k7e2MaxC kjc 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the defendant's demonstrated willingness and ability to live in hiding, her ability to live comfortably beyond the reach of extradition, her strong interactional ties and lack of community ties, significant and unexplained wealth, and the presumption of detention in light of very serious charges -- in light of all that, your Honor, it is extremely surprising that the defendant would propose a bail package with virtually no security whatsoever. In addition to failing to describe in any way the absence of proposed cosigners of a bond, the defendant also makes no mention whatsoever about the financial circumstances or assets of her spouse whose her identity she declined to provide to Pretrial Services. There is no information about who will be cosigning this bond or their assets and no details whatsoever. The government submits that no conditions of bail would be appropriate here. But it is revealing, your Honor, that the defendant had both declined to provide a rigorous, verified accounting of her finances and that she does not propose that she pledge any meaningful security for her release. She identifies no stable residence where she could reside. Instead, she proposes, among other proposals, that she stay at a luxury hotel in Manhattan, the most transient type of residence. And it is curious, your Honor, that the defendant offers to pay for a luxury hotel for an indefinite period and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066251 37 k7e2MaxC kjc 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 yet does not offer to post a single penny in security for the bond she proposes. Your Honor, the defendant is the very definition of flight risk. She has three passports, large sums of money, extensive international connections, and absolutely no reason to stay in the United States to face a potential significant term of incarceration. The government respectfully submits that the defendant can't meet her burden of overcoming the statutory presumption in favor of detention in this case. There are no conditions of bail that would assure the defendant's presence in court proceedings in this case, and we respectfully request that the court detain the defendant pending trial. Thank you, your Honor. THE COURT: Thank you, Just to make explicit what is clear by the government's written presentation and oral presentation, you are not resting your argument for detention on dangerousness to the community at all. It is resting on risk of flight, correct? : That's correct, your Honor. THE COURT: All right. Thank you. , you have indicated that you have heard from victims who are entitled, under federal law, to be heard at this proceeding. Could you indicate -- I think you indicated SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066252 38 k7e2MaxC kjc 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that you have a written statement and then that there is an alleged victim who wishes to be heard. Is that correct? : That is correct, your Honor. THE COURT: Why don't you begin with the written statement and then after that you can identify, as you like, the alleged victim who wishes to be heard, and my staff will unmute at that time that person so that they can be heard. Go ahead. : Thank you, your Honor. As I mentioned before, your Honor, the government has received a written statement from a victim who prefers to be referred to as Jane Doe today in order to protect her privacy. The following are the words of Jane Doe which I will read from her written statement. Jane Doe wrote: "I knew Ghislaine Maxwell for over ten years. It was her calculating and sadistic manipulation that anesthetized me, in order to deliver me, with full knowledge of the heinous and dehumanizing abuse that awaited me, straight to the hands of Jeffrey Epstein. Without Ghislaine, Jeffrey could not have done what he did. She was in charge. She egged him on and encouraged him. She told me of others she recruited and she thought it was funny. She pretends to care only to garner sympathy, and enjoys drawing her victims in with perceived caring, only to entrap them and make them feel some sense of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066253 39 k7e2MaxC kjc 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 obligation to her through emotional manipulation. She was a predator and a monster. "The sociopathic manner in which she nurtured our relationship, abused my trust, and took advantage of my vulnerability makes it clear to me that she would have done anything to get what she wanted, to satisfy Mr. Epstein. I have great fear that Ghislaine Maxwell will flee, since she has demonstrated over many years her sole purpose is that of self-preservation. She blatantly disregards and disrespects the judicial system, as demonstrated by her perjuring herself and bullying anyone who dared accuse her. "I have great fear that she may seek to silence those whose testimony is instrumental in her prosecution. In fact, when I was listed as a witness in a civil action involving Maxwell, I received a phone call in the middle of the night threatening my then two-year-old's life if I testified. "I have fear speaking here today, even anonymously. However, I have chosen to implore the court not to grant bond for Ms. Maxwell because I know the truth. I know what she has done. I know how many lives that she has ruined. And because I know this, I know she has nothing to lose, has no remorse, and will never admit what she has done. "Please do not let us down by allowing her the opportunity to further hurt her victims or evade the consequences that surely await her if justice is served. If SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066254 40 k7e2MaxC kjc 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 she believes she risks prison, she will never come back. If she is out, I need to be protected. I personally know her international connections that would allow her to go anywhere in the world and disappear at a moment's notice or make others disappear if she needs to." Your Honor, those are the words of Jane Doe. THE COURT: All right. Thank you. , would you indicate how the victim who wishes to be heard should be recognized? : Yes, your Honor. The government has been informed through the victim's counsel that the victim wishes to speak in her true name, which is Annie Farmer. THE COURT: All right. I will ask my staff to please unmute Ms. Farmer. MS. FARMER: Can you hear me, your Honor? THE COURT: I can, Ms. Farmer. You may proceed. MS. FARMER: Thank you. I appreciate the opportunity to speak. I met Ghislaine Maxwell when I was 16 years old. She is a sexual predator who groomed and abused me and countless other children and young women. She has never shown any remorse for her heinous crimes, for the devastating, lasting effects her actions caused. Instead, she has lied under oath and tormented her survivors. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066255 k7e2MaxC kjc 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The danger Maxwell must be taken seriously. She has associates across the globe, some of great means. She also has demonstrated contempt for our legal system by committing perjury, all of which indicate to me that she is a significant flight risk. We may never know how many people were victimized by Ghislaine Maxwell, but those of us who survived implore this court to detain her until she is forced to stand trial and answer for her crimes. Thank you, your Honor. THE COURT: Thank you, Ms. Farmer. All right. And, is the government aware of any other victims who are entitled to -- alleged victims who are entitled to and wish to be heard at this proceeding? : No, your Honor. Thank you. THE COURT: And, again, just to confirm, because there was allusion in the statements of the victims to fear and danger, the government is not seeking the court to make any findings regarding danger to the community in coming to its ultimate conclusion regarding pretrial detention, correct? : That's correct, your Honor. THE COURT: All right. , anything further before I hear from Mr. Cohen? : No, your Honor. Thank you very much. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066256 42 k7e2MaxC kjc 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Thank you, Mr. Cohen, you may proceed. MR. COHEN: Thank you, your Honor. Thank you very much for the opportunity to be heard and also for accommodating us with regard to the briefing schedule. We appreciate that, your Honor. Your Honor, this is a very important proceeding for my client. It is critical and we submit, as we laid out in our papers, that under the Bail Reform Act and related case law, none of which, by the way, was discussed in the government's presentation, she is -- she ought to be released on a bail package with strict conditions, your Honor. And, frankly, in order to defend a case like this during the COVID crisis, with the extent of discovery which was discussed earlier in the proceeding, that's going to take the government until November to produce to us, the notion of preparing a defense with our client while she is in custody under these conditions is just not realistic. I would also like to take a moment, your Honor, to address a few things. As we noted in our papers, our client is not Jeffrey Epstein, and she has been the target of essentially endless media spin that apparently the government has picked up in its reply brief and in its presentation today, trying to portray her before the court as a ruthless, aimless, sinister person. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066257 43 k7e2MaxC kjc 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I do want to note, before I go further, to pick up on something the court said. We have a proceeding now where the government is dribbling out facts or what they claim are facts that they could have and should have put in their opening memorandum so we would have had an opportunity to address them in writing before the court. That's not how this is supposed to proceed, your Honor, and I thank your Honor for pointing that out. Each -- THE COURT: But, Mr. Cohen, please, by all means, you have had the reply in the time that I have as well. You shouldn't hesitate to respond to any of those facts now. MR. COHEN: I appreciate that, your Honor, and I'm going to proceed by proffer. I would have preferred to be able to submit something in writing, but obviously the way it was done, we were deprived of that chance. I also want to make clear that our client is not Epstein. She is not the monster that has been portrayed by the media and now the government. She is part of a very large and close family, with extensive familial relations, extensive friendships, extensive professional relationships. Many of these folks are on the call today, your Honor, and thank you, your Honor, for making that available, though not identified, which is something one would normally do in a traditional bail hearing, because of the very real concern that they have and our client has about her safety and about her privacy and her SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066258 44 k7e2MaxC kjc 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 confidentiality, as your Honor pointed out. And as you will see in a moment, that explains a lot of the spin the government is putting on facts in this case. Your Honor, people have received physical threats. My client has received them. Most of those close to her have received them. They have received death threats. They have been injured in their jobs, in their work opportunities, in their reputations, simply for knowing my client. It's real. It's out there. The facts of all the steps the court had to go through just to make the public access available to this proceeding is also a reality. There is a real thing out there having a very significant impact on our client. There are folks who would normally come forward as part of a bail package who your Honor is aware of from the Pretrial Services report who can't now, at least at this point, because of the safety and confidentiality concerns. Since last week our firm alone and my colleagues at Haddon Morgan have been besieged with e-mails and posts, some of them threatening. This is all very real. The government attempts to poo-poo it, to give it the back of the hand. It is very real, and we submit it is a factor for the court to consider in its discretion. Before I go further, your Honor, I would like to go through the 3142(g) analysis. But before I do that, I would like to make one comment about the CVR CVRA proceeding under SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066259 k7e2MaxC kjc 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 377(1), and we understand that the court is following the statute. The statute gives alleged victims the right to speak through counsel, through the government, or directly, and be heard, and we understand that, your Honor. The question today before the court, we submit, is whether or not our client could be released or should be released on a condition or combination of conditions to assure her appearance. And as to that question, the presentations today do not speak, they do not speak to risk of flight, and the courts have -- in this circuit have thought about and researched what weight should be given to that. There is an opinion by Judge Orenstein in the Eastern District, United States v. Turner, from April 2005, not cited by the government, in which the court, after carefully surveying the legislative history and background of the CVRA and its interplay with the bail reform statute, concluded, "In considering how to ensure that the rights are afforded, I am cognizant that the new law gives crime victims a voice but not a veto. Of particular relevance to this case, a court's obligation to protect the victim's rights and to carefully consider any objections that victim may have never requires it to deny a defendant release on conditions that will adequately secure the defendant's appearance," going on to cite the Senate legislative history that's being cited with approval of United States v. Rubin, also an Eastern District case. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066260 46 k7e2MaxC kjc 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 So we understand why the court has to follow this process, but we submit that these presentations just are not relevant to the determination before the court today. And, again, we don't have spin. The big fact that the government, tried to put before you through the victim is that supposedly someone had called in a civil action threatening the two-year-old child. Notice how carefully that was phrased, your Honor. It wasn't tied to Ms. Maxwell. It's more spin, spin, spin. So we are here to consider bail. We should consider the statute. We should consider your Honor's guidance under the statute. So let me just put that to one side. I determine that that really disposes of the issue of what weight to give. In turning to the statute, your Honor, turning to the factors, I don't want to spend a lot of time on the standard, because I know your Honor is very familiar with it, but I do want to point out that, in an opening brief and reply brief and now an oral presentation, the government has not once represented the standard to your Honor nor the burden that it has. And that is the statute, under 3142(c), says that "even the case where there is not to be release ROR" -- which this is not that case -- "the court shall order pretrial release subject to the least restrictive condition or combination of conditions." That as you now read, of course, in light of 3142(e), (f), and (g), the provisions on detention, that the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066261 47 k7e2MaxC kjc 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 law of the statute, by its structure, favors release. The Supreme Court has and the Second Circuit has advised us that a very limited number of people should be detained prior to trial because of the statute's structure, and the government nowhere mentions that. It basically acts as if all it has to do is invoke the presumption on the client and then we are done, and that's just not the legal standing, your Honor. They also say nothing about the burden, which is discussed on a case written for the Second Circuit by Judge Raggi, and also the U.S. v. English case. Without going into a lot of detail, as the court is aware, the burden of persuasion is the government's. It never shifts. The presumption can be rebutted, and we submit it is here, and then it is the burden of the government to show that the defendant is a risk of flight and that there are no conditions or combination of conditions to secure the release, which we submit they haven't done here. So let me turn, your Honor, if I may, to the factors under 3142(g), and before I do that, I also want to address some of the government's comments about the bail package. We decided that we should come before your Honor with a package that was set out subject, of course, to the ruling provided by the court, subject of course to verification as to suretors by Pretrial Services and the court. We didn't want to just walk in and say, Judge, we should be entitled to bail, please set SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066262 48 k7e2MaxC kjc 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 conditions. So what we did is we went through all the high profile cases in this courthouse in the past several years and other cases, cases like Medoff, cases like Dreier, cases like Esposito, where Judge Marrero ruled in 2018 relating to an alleged member of organized crime, and we went through those cases to find the conditions that were listed under 3142(c), and in those cases that would we believe be relevant and applicable here, and we believe we have listed them all. We understand that of course they would be subject to verification; and as we noted in our papers and I noted today, if we could have a guarantee of safety, if we could have a guarantee of privacy and confidentiality, and if the court required it, we believe there are other suretors who we could provide and perhaps other amounts of property as well. That is an issue. It is a real issue in this case. It is something the government is just avoiding, but it is real. So let me talk now, your Honor, if I might, about the 3142(g)(3) factors, which are the factors relating to the history of the defendant. The government said -- THE COURT: Mr. Cohen, just before you move to that, the three cases that you cited -- Esposito, Dreier, Madoff - factually did any of those cases involve defendants with substantial international and foreign connections? MR. COHEN: No, I don't believe they did. The cases SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066263 49 k7e2MaxC kjc 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that are relevant to that, which I was going to get to, your Honor, are Khashoggi, U.S. v. Khashoggi, U.S. v. Bodmer, U.S. v. Hanson, and Sabhnani itself, all of which involve defendants with substantial connections. And I might follow up on your Honor's question, when you take off the spin and you take off the media -- and I'm going to get to it in a moment, because your Honor is going to allow me to respond -- here is their case: Defendant is a citizen of more than one country, England and France, not exactly exotic places. The defendant has three passports. The defendant has traveled internationally in the past, not in the past year. There is no refutation from the government on that, and they have been all over her travel records. The defendant has resided here in the past year. She has traveled internationally and, according to the government, she has financial means. I will get to that in a moment, Judge. But let's assume for the purposes of this discussion that she has financial means and not the lies that the government laid out. What do those cases teach? They teach that that is something the court can and should address in the bail conditions. They teach that they may require stricter bail conditions. They don't teach that that means there should be no bail at all. In Sabhnani, a Second Circuit case, the allegation was that the defendants have held two individuals in slavery for five years, and they had many more international ties or international SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066264 50 k7e2MaxC kjc 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 travel than alleged as to our client, certainly in the past year, and strict release was approved with strict bail conditions. In Bodmer, which was before Judge Scheindlin in 2004, the defendant was a Swiss citizen, and Switzerland had taken the position it would not extradite its citizens for proceedings in the United States. And Judge Scheindlin observed, well, if that becomes the test for bail, then no citizen of Switzerland can ever get bail in the United States. So, too, here. If that's the test for France, then no French citizen, under the government's reasoning, could ever get bail in the United States. And in Bodmer it was even the allegation -- the case was a fraud case -- the allegation was that the defendant who was a Swiss attorney had, according to the government, been opening up Swiss accounts overseas and that that was some form of hiding. Even with all that, the court said what many courts have said in this courthouse, to be addressed in the conditions. Doesn't mean the government has carried its burden of showing there is no combination of conditions. In the Khashoggi case, written by Judge Keenan in 1989, this was a person of extraordinary wealth, way more than anything the government alleges that our client has, he was, according to the government, a fugitive, a Saudi citizen who had not been in the United States for three years prior to his SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066265 51 k7e2MaxC kjc 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 arrest. That defendant was released on bail conditions, strict bail conditions. And I mention Esposito, which is the 2019 case from Judge Marrero, that is a case in which the allegation was that the defendant was a senior ranking member of organized crime and had access to financial means as well. But all of those cases, as well as Madoff and Dreier, which I'm sure the court is familiar, with involved allegations of defendants with hundreds of millions of dollars, in all of those cases, the courts held that bail should be set subject to strict conditions. And by the way, Judge, in all of those cases, the defendants appeared for court. They all made appearances and appeared for trial. There are also cases from the context involving pornography or sex crime allegations, such as the Deutsch case coming from the Eastern District several years ago, the Conway case in the Northern District of California. Again, understanding those are the allegations, the decision was made that release could be awarded on conditions. You even had one recently in the Second Circuit that I'm sure everyone is familiar with United States v. Mattis, different setting, because that was a dangerousness case and the government is not proceeding on dangerousness grounds, but that is the case where the allegation is that two attorneys threw a Molotov cocktail into a police car; challenge to bail SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066266 52 k7e2MaxC kjc 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 appealed by the government; decision of the court, release on strict conditions. That is how the law works and comes out in this area, but that's something, your Honor, that the government did not address. And if the court determines that the conditions that we have proffered are insufficient or need further verification, as long as we can have some assurance of safety and confidentiality, we would recommend that the court keep the proceeding open, and we should be able to get whatever the court needs to satisfy it. So that's the legal analysis that was absent in the government's presentation today and its papers. Let me now, because I have to, because this has been put out before your Honor in, of course, a public proceeding, let me respond to some of the allegations made for the first time in the reply brief, trying to spin facts to make my client look sinister to your Honor. Here is fact one: She is a risk of flight because she has been hiding out. Well, let's think about this. She has been litigating civil cases in this courthouse and other parts of the country since 2015, denying, as she does here before your Honor, that she did anything improper with regards to Mr. Epstein. We submit, your Honor, that is the opposite of somebody who is looking to flee. And in fact, one of the people who spoke before your Honor is a plaintiff in one of those lawsuits seeking millions of dollars from our client and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066267 k7e2MaxC kjc 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 seeking millions of dollars from a fund that's being set up. Something for the court to consider. She has also, as we mentioned, remained in the United States, even though she has known of the investigation. How could she not? It's been unbelievably public for the past year. And we have been in regular contact with her -- with the government. Your Honor asked that question, very careful question from the court, and we got a shimmy from the government in response. We have been in contact with them, conservatively -- as we checked last night, because we thought you might ask -- conservatively eight to ten times in the past year, all for the same purpose, to urge them not to bring this case, which shouldn't have been brought. The notion that experienced counsel, and counsel at Haddon Morgan is also experienced, is in regular contact with the government, would surrender their client, and they turn around and deny that to the court and deny that voluntary surrender would and could have and should have been possible here is, we submit, another factor for the court to consider. So let me turn to the reply brief. THE COURT: Sorry. If I may, Mr. Cohen, I just want to make sure I understand that last point. Are you saying that defense counsel indicated to the government that, should there be an indictment returned, you were seeking to arrange a voluntary surrender? Is that the contention? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066268 k7e2MaxC kjc 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. COHEN: To be precise, we were urging them not to return an indictment and saying we were always available to speak. And, frankly, your Honor, I have been doing this kind of work for 33 years, everyone knows what that means. THE COURT: So you were implying (Indiscernible crosstalk) THE COURT: You were implying that, though you were urging -- MR. COHEN: Yes. THE COURT: -- or seeking to forestall the indictment, should there be an indictment, you were implying that you should be contacted for voluntary surrender. MR. COHEN: Yes, of course. And the day after our client was arrested, we got a note from the government sending the application to detention addressed to us and Haddon Morgan saying your client, Ms. Maxwell, was arrested yesterday. So there was no doubt that we represented her along with Haddon Morgan. There was no doubt that we were available and could have been contacted and worked this out. There was no doubt that we are confident we would have. Let me turn to the reply brief and the effort to throw some more dirt on my client that we again submit should not be considered as part of the governing legal standards here and the precise question before the court. You heard it today and in the brief we hear that at the time of her arrest, the agents SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066269 k7e2MaxC kjc 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 breached the gate and they saw her through the window try to flee to another room in the house, quickly shutting the door, and that she -- agents were ultimately forced to breach the door. So here is the spin. It's as if the government is just sort of giving it for the media, here is the spin given to your Honor to try to influence your Honor's discretion. What actually happened? At least the court has said we can respond by proffer. We weren't given a chance to respond in writing. My client was at the property in the morning in her pajamas. She was there with one security guard. Two people in the house. The front door was unlocked. All the other doors of the house were open. The windows were open. Dozens of agents came storming up the drive, creating a disturbance. My client had to hire security because of the threats to her that I have already relayed before, and the protocol was that in a disturbance to go into new room. That's all she did. Not running out of the house, not, you know, looking for some secret tunnel, went in the other room. The F.B.I. knocked down the door which, by the way, was open, and my client surrendered herself for arrest. That's far from the picture painted by the government. Let me turn to another thing that the government mentioned today in an effort to sort of spin the facts, make everything look sinister with respect to my client. The government said in its opening brief, well, Judge, she is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066270 56 k7e2MaxC kjc 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 hiding. She is a risk of flight because she changed her e-mail and phone number. That's what we heard in the opening brief. Well, what happened? Something the government, frankly, should know about, because it was certainly public, last year, in a civil litigation, in August of 2019, right around the time of the arrest of Mr. Epstein, the Second Circuit ruled that certain records in one of the civil cases should be unsealed and released to the public. That was done. There was no stay at the moment. The demand was issued, and the documents were released. Certain of those documents were supposed to be redacted and sometimes they were and sometimes they were not, documents including e-mail addresses, Social Security numbers, names, phone numbers, the sorts of things your Honor, I am sure, has to deal with all the time in these kinds of situations. But as it turned out, for whatever reason, some of the documents were not redacted and her e-mail address was revealed. Shortly after that, she starts getting strange e-mails. Her phone is hacked, and she had to change e-mails and change the account. Now she has got a phone that has legal materials on it, correspondence with her counsel in civil litigation that's been hacked, so she keeps it. Why does she keep it? Because she is in civil litigation. Her obligation is to keep evidence, not destroy it, and is advised that a way to keep it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066271 57 k7e2MaxC kjc 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 from being hacked, again, is to put it in the equivalent of a Faraday bag, whether it be tinfoil or the bags they now make in briefcases, and that's it. That's all that she does. And I guarantee to your Honor, given the tenor of the government's presentation, that had she said, well, this phone was hacked, I'm just going to throw it away, the government would be standing before your Honor today say, ah-ha, she destroyed evidence, that adds to risk of flight. And she had she put it in a safe deposit box, rather than to destroy it, they would be saying we cracked into a safe deposit box, your Honor. This is evidence of a risk of flight. It just does not fit the test, we submit. And the last point on this, your Honor, which, frankly, in some ways is the most telling point of all, the agents do a security sweep, considering this is a house where there are two people in it -- and I will put that to one side for a moment -- they talk to the security guard, apparently now they are going to do the thing multiple times because the government is dribbling out facts, and they say, well, who lives in the house? Ms. Maxwell does. Okay? She lives in the house. What do you -- how do you get groceries and so forth? I go out and get them for her. So let's stop and think about this, your Honor. The government's allegation is that the person who is aware of a criminal investigation in the United States, has her counsel in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066272 58 k7e2MaxC kjc 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 regular contact with the government, is removed in a property in the United States. That's the opposite of hiding. So we think that those kinds of facts, I'm sure, your Honor, if your Honor decides to keep the proceedings open and give us a chance to come on some issues, I'm sure we will have some more facts tomorrow and the next day, all with the disclaimer, we just learned this, your Honor. They have been investigating this case for ten years, your Honor, okay? So let me turn now to another factor that the government made argument about briefly, two more factors under 31(g)(3), the history and characteristics of the defendant. We heard several times that there was a -- that detention should be warranted because there is a perjury charge. Very quickly, your Honor, we submit this does not tip the balance in the 3142 analysis that the court has to perform. First and foremost, the defendant is, of course, presumed innocent; and, secondly, the allegation and nature of the perjury, if the court has been through the indictment, is someone who denies guilt, who says they are innocent, is asked in a deposition did you do that and says no, the government charges them with perjury. That is not -- other than the fact that it's an indicted charge, they are still entitled to the weight the court would give a not indicted charge. That's all the weight it should be given Let me turn to another factor that the government SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066273 k7e2MaxC kjc 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 mentioned in its presentation, both in its papers and today, that relates to 3142(g)(3), which is the defendant's financial situation. Again, when you look at the case law, which is not addressed by the government at all, this is a person who has passports that can be surrendered, who has travel that can be restricted, who has citizenship that the courts have taking account of, and does have financial means. Does she have the financial means that the government says she has? We doubt it. But does she have hundreds of millions of dollars like those in the Medoff and Dreier case? No. But it doesn't matter. Even if the court were to assume for purposes of today's proceeding that she has the means that the government claims she does, it does not affect the analysis. That is to be addressed in conditions, to be addressed if the court requires it, through verifications and further proceedings before the court. And let me just address some of the allegations made in the government's brief about her financial situation. The government goes out and arrests our client even though she would have voluntarily surrendered, arrests her the day before a federal holiday, so she spends extra time in the New Hampshire prison before being transported here, and then says, how come you don't have a full account of your financial condition? How come, when Pretrial Services asked about it, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066274 60 k7e2MaxC kjc you can't, off the top of your head, explain your financial condition to them? You must be lying. That assertion is absurd. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 We have been working since our client was detained, with our client, trying to access family members to put, as best we could, a financial picture before the court to the extent it is relevant to this application and only this application. This bail proceeding should not turn into some mini investigation of our client's finances. The government has had ten years to investigate my client. Let me address some of the specific allegations in the government's brief. They point to a sale of property in 2016. According to the government, the property was sold for $15 million. There is no secret about that. Those records are out there. The government claims our client cleared $14 million from that in 2016 and apparently has it all today, which would probably make it the first New York real estate transaction to that effect. There has been liabilities. There has been expenses. Our client has been through extensive, substantial litigation all over this country denying these claims. We think the number is far less than what the government asserts. But even taking that number, it's a number far lower than that in Khashoggi, far lower than that in Dreier, far lower than in many cases, and the impact of that, in the court's discretion, should be addressed by bail conditions. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066275 k7e2MaxC kjc The government also says, well, she has 15 different 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 bank accounts -- and here we get some hedging language -- that are by or associated with her. No detail, no explanation to the court, just more dirt. Well, she has three bank accounts that she disclosed. She believes that there are more, for example, with respect to the not-for-profit that she ran for almost a decade before she was forced to shut it down because of the issues in the media and the attention and the firestorm. So it is some number less. And if it's important to the court, we will do our best to pull it together. But under the relevant cases, it doesn't change the analysis. And then we go through the last one, your Honor. They say in their brief that she did transfers of funds. One was a transfer of 500,000. We believe that what that is was a bond maturing. So when a bond matures, it is transferred out. And then there was another one, and the government sort of changes reply brief and speculation for several hundred its mind between its opening brief and its I'm sure by tomorrow they will have some new your Honor, but essentially let's call it a thousand transfer out of and account in June and July of 2019. What's that refer to? It refers to one of the themes we have been talking about in our submission and today your Honor. When Mr. Epstein was arrested, it had all kinds of effects on our client, one of which was that the bank in question referenced in the government's submission dropped SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066276 62 k7e2MaxC kjc 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 her. Well, when the bank drops you, you have to transfer your funds out. That's true. That's what happened. So there is nothing in there that's sinister, there is nothing in there that shows an intent to evade, an intent to evade, and nothing there that we think warrants detention. One last point on the financial stuff, your Honor, if I might. In the reply brief, we get a new allegation that an SDAR, a foreign filing was made in 2018 and 2019, disclosing that our client had a foreign bank account. Let's stop there. Our client makes a legally required filing with the Treasury Department, obeys the law, and discloses a foreign bank account, and the government is claiming that's evidence of hiding. This is all upside-down, your Honor. These are not factors to be considered in exercising your discretion under 3142. Let me turn very quickly to the other two factors that are relevant for today's purposes because, as your Honor has pointed out, the government is not proceeding on a dangerousness claim. That is the (g)(1) and (g)(2) factors, the nature and circumstances of the case, and the weight of the evidence. Here, I think we -- if you bear with me a moment, your Honor, here, one thing to keep in mind is an observation Judge Raggi made in the Sabhnani case, at page 77, where she said, "The more effectively a court can physically restrain the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066277 k7e2MaxC kjc 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 defendant, the less important it becomes to identify and restrain each and every asset over which defendants may exercise some control in order to mitigate risk of flight." Sr if the court -- and we have suggested them, but they may be modified by the court -- can put in place stringent bail conditions, we don't need to have a side-long, month-long hearing about my client's assets which is just designed to keep her in detention. That was an observation by Judge Raggi in Sabhnani. Judge, very quickly on the nature and circumstances of the offense and the weight of the evidence, we don't think, your Honor, this is the place to litigate legal motions. This is a bail hearing. It is not the place to litigate complex legal questions that we will be presenting to your Honor. It's very soon on the motion schedule, and we thank the court for agreeing to the schedule. But there are a few things that are worth pointing out. We believe there are very significant motions here that will affect whether this indictment survives at all or the shape of this indictment and, given the government's representation that it is not planning to supersede, will affect the shape of the entire case, or any case at all that proceeds before the court at trial, if there is a trial. That is exactly what we submit the court can consider, again, in exercising its discretion as to the weight of the evidence. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066278 k7e2MaxC kjc 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 We believe there are significant motions relating to the reach of the NPA, which we are not going to litigate here before your Honor in a bail proceeding, that are not even foreclosed by the cases the government does cite to you. They cite to you the -- I'm going to skip this one, the Annabi case, A-N-N-A-B-I case, which says, "The plea agreement binds only the office of the U.S. Attorney for the district in which the plea is entered unless it affirmatively appears that the agreement contemplates a broader restriction," and that in part is going to be our argument. So we will make it to your Honor at the appropriate time. For today's purposes, it should be in the mix in evaluating the weight of the evidence as should the points I just made about the perjury charge and we think that there are other significant legal challenges to the indictment. We also think there are significant issues with the weight of the evidence. The government chose to indict conduct that's 25 years old, your Honor. You will see when you get our motions that this, we think, is an effort to dance around the NPA, to come into an earlier time period, a related time period. It's all tactics. That's all this is about. This case is about tactics. It's an effort to dance around the NPA. But the fact of the matter is the government -- THE COURT: Mr. Cohen, I'm sorry, by that do you mean that the time period charged is not covered by the NPA. MR. COHEN: Right. Exactly. There is going to be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066279 k7e2MaxC kjc 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 litigation before your Honor about what is in the NPA, and the government, we expect, is going to take the position that unlike '07 is covered and nothing else. We disagree with that, which we will lay out for your Honor. What do they do? They decide we will reach back and indict '94 to '97, totally tactical, your Honor. So now we have a case where the conduct is 25 years old, no tapes, no video, none of the sort of things you would expect in that age of case, that we are going to have to defend, and we are going to defend. And I think it goes to the court's consideration of the weight in the context of the only application that's before your Honor, which is how to weigh the 3142 factors with the structure of the statute, with the guidance of the Second Circuit and the Supreme Court, which is in favor of bail, in favor of bail on appropriate conditions. So we submit that the package we laid out for the court is sufficient that we are certainly willing if the court deems it necessary to leave the proceeding open and we think we could be back before the court within a week if that is what the court wants or there is more detail which has been hammered by the fact that our client has been, by design, by design, kept in custody. And let me just give your Honor a little flavor. THE COURT: Wait, Mr. Cohen. I missed that last point could you repeat it, please. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066280 66 k7e2MaxC kjc MR. COHEN: I'm sorry. If the court desires to leave 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the proceeding open for a week and allow us to come back, if the court has concerns about the number of suretors, for example, verification information, information about financial issues, we think that, now that we have some ability to breathe a little bit, that we should be able to pull this together for the court's consideration. We came forward with the best package we could put together on a limited notice with a client who was arrested, held in custody, has been since she came to the MDC held in, I will call it, the equivalent of the layman's term of solitary confinement. There is probably a BOP word, like administrative seg., or some other word they have for it now. We have had a client who has been kept alone in a room with the lights on all the time, is not allowed to speak with us in the jail at all, wasn't allowed to shower for 72 hours, had her legal materials taken away from her, only recently given back. So working with that, we have been trying to answer questions about financial situation and others, but it is very difficult, your Honor, under circumstances that are of the government's creation, of the government's creation, and we -- THE COURT: So I do want to understand that point. think that's the "by design" point that you are making. Just for clarity, I understand that there was consent to detention SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066281 67 k7e2MaxC kjc 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 originally without prejudice obviously for precisely the proceeding we are having, but it sounded like you were suggesting that her current detention was in some way by design to prevent you from providing a full picture of her financial situation. Is that the implication you are making? MR. COHEN: No, I am not saying that, your Honor. I am not going that far. What I am saying is, when you have a client who will voluntary surrender, who is staying in the country despite an investigation, and the government instead chooses to arrest her and detain her, that limits in the early instances your access to the client. It is complicated by the COVID crisis and the other factors your Honor has pointed out in Stephens and in Williams-Bethea, and so it is very hard for us to pull together this financial information, and we have done it as quickly as we could before the court. But the notion that my client should have been able to answer off the top of her head the questions from Pretrial Services about a real estate transaction, for example, just doesn't make any sense. That's the point we are making. THE COURT: Okay. MR. COHEN: One last point in that regard, your Honor, in the schedule we set today -- thank you, your Honor, for approving that -- the government is saying that it needs at least until November to complete all discovery, including electronic discovery. They have told us that there are two SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00066282 CH k7e2MaxC kjc investigations. There is the investigation of our client and 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 there is the i