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Mega Edition: Ghislaine Maxwell Appeals Her Conviction (9/4/26) · The Vault: The Epstein Files

• 0:00
  Speaker 1: What's up everyone and welcome back to the Epstein Chronicles.
• 0:04
  Speaker 1: In this episode, we're going to begin taking a look
• 0:06
  Speaker 1: at why Ghislaine Maxwell thinks she should be granted an appeal.
• 0:10
  Speaker 1: And to do that, we're going to take a look
• 0:12
  Speaker 1: at the Ghislaine Maxwell reply brief. Preliminary statement in reply. Ms.
• 0:18
  Speaker 1: Maxwell relies on her arguments in her principal, appellant's brief,
• 0:21
  Speaker 1: points 2 and 4, and supplements her arguments in points 1, 3,
• 0:25
  Speaker 1: and 5 herein. Ms. Maxwell argues that she is a
• 0:29
  Speaker 1: third-party beneficiary of the non-prosecution agreement hereinafter NPA, and as
• 0:35
  Speaker 1: such has standing to enforce the co-conspirator immunity provision which,
• 0:39
  Speaker 1: by its terms, barred this prosecution. Alternatively, the District Court's
• 0:44
  Speaker 1: reliance on U.S. v. Anabee, 771 F. 2D 670, 2nd Circuit, 1985,
• 0:51
  Speaker 1: to resolve perceived ambiguities was an error and the District
• 0:55
  Speaker 1: Court should have ordered a hearing. Ms. Maxwell further argues
• 0:59
  Speaker 1: that the district court's findings and conclusions concerning Juror 50
• 1:03
  Speaker 1: were an abuse of discretion in three separate respects. 1.
• 1:07
  Speaker 1: Juror 50's explanations for his false answers to a juror
• 1:10
  Speaker 1: questionnaire were incredible on their face. 2. Juror 50 concealed
• 1:14
  Speaker 1: traumatic experience as a victim of childhood sexual abuse under
• 1:19
  Speaker 1: circumstances analogous to the experience of the government witness. If known,
• 1:23
  Speaker 1: juring for Dyer would have provided a valid basis for
• 1:27
  Speaker 1: a challenge for cause. And three, the court abandoned its
• 1:30
  Speaker 1: obligation to ascertain not merely the juror's credibility, but also
• 1:35
  Speaker 1: the validity of a challenge for cause when it unduly
• 1:38
  Speaker 1: narrowed the scope of its examination of juror 50 at
• 1:42
  Speaker 1: a post-trial hearing. Ms. Maxwell argues that the district court
• 1:45
  Speaker 1: sentence was an error because 1. its four-point enhancement under
• 1:49
  Speaker 1: USSG Section 3B1. 1 lacked any support in the record that Ms.
• 1:55
  Speaker 1: Maxwell supervised another criminal participant and 2. its sentencing decision
• 2:00
  Speaker 1: was predicated on a miscalculation of the applicable guidelines and
• 2:04
  Speaker 1: range for incarceration and fines in the first instance and
• 2:08
  Speaker 1: a subsequent failure to correct its error by either recalculating
• 2:11
  Speaker 1: the sentence or so as to comport with a proper
• 2:14
  Speaker 1: guideline range or provide reasons for its upward departure. U.S.
• 2:18
  Speaker 1: Code 18, Section 3553, C and 2. The conviction must
• 2:23
  Speaker 1: be reversed and the indictment dismissed or, in the alternative,
• 2:27
  Speaker 1: the matter should be remanded for the appropriate hearings. Point
• 2:31
  Speaker 1: number one. Point number one in appellant's principal brief. Ms.
• 2:35
  Speaker 1: Maxwell is the third-party beneficiary of a non-prosecution agreement, which
• 2:39
  Speaker 1: by its terms barred the USAO SDNY from prosecuting Ms.
• 2:44
  Speaker 1: Maxwell for these offenses. In this circuit, while ordinarily any
• 2:48
  Speaker 1: plea or non-prosecution agreement is confined to enforcement in the
• 2:53
  Speaker 1: district of origin, under U.S. ANABI SUPRA, there is an
• 2:56
  Speaker 1: exception wherein if affirmatively appears that the agreement contemplates a
• 3:01
  Speaker 1: broader restriction, as is the case here. Ciannabi at 672.
• 3:06
  Speaker 1: This exception dictates that the NPA be enforced to protect Ms.
• 3:10
  Speaker 1: Maxwell as a third-party beneficiary to the agreement from prosecution
• 3:15
  Speaker 1: for these offenses. See U.S. Cambindo Valencia 609 F. 2D 603
• 3:22
  Speaker 1: Second Circuit 1979. Standing for the proposition that there can
• 3:26
  Speaker 1: be a third-party beneficiary of a plea bargain for another.
• 3:30
  Speaker 1: The NPA together while the Justice Office of professional responsibility
• 3:34
  Speaker 1: here and after OPR established that the immunity given to Ms.
• 3:38
  Speaker 1: Maxwell precluded the United States from prosecuting her in the
• 3:41
  Speaker 1: Southern District of New York or elsewhere. A. Ms. Maxwell
• 3:45
  Speaker 1: has standing to enforce the non-prosecution agreement as a third-party beneficiary.
• 3:50
  Speaker 1: The district court correctly found that Ms. Maxwell is the
• 3:53
  Speaker 1: third-party beneficiary of the MPA and for that reason has
• 3:57
  Speaker 1: standing to enforce it. as the Seventh Circuit has observed
• 4:01
  Speaker 1: plea agreements like all ordinary contracts may be enforced by
• 4:04
  Speaker 1: third parties when the original parties intended the contract to
• 4:08
  Speaker 1: directly benefit them as third parties. U.S. v. Andreas, 216F. 3D. 645. 663,
• 4:15
  Speaker 1: Seventh Circuit, 2000, indicating that third-party beneficiary standing applies to
• 4:22
  Speaker 1: immunity agreements and plea agreements, but concluding on the fact
• 4:26
  Speaker 1: presented that defendants were not third-party beneficiaries beneficiaries. No circuit
• 4:31
  Speaker 1: as held otherwise in this court should not create split
• 4:34
  Speaker 1: on this issue. The Seventh Circuit has been joined by
• 4:37
  Speaker 1: numerous district courts in holding that an agreement promising immunity
• 4:41
  Speaker 1: to a third party may be enforced by that party
• 4:44
  Speaker 1: if that party is later prosecuted in breach of the agreement.
• 4:48
  Speaker 1: See U.S. v. Stolt Nielsen, 525 F.S.U.P.P.2D.609, 613 and 614,
• 4:51
  Speaker 1: 620 through 623, 628 Eastern District, Pennsylvania, 2007. Dismissing indictment
• 5:04
  Speaker 1: against Stolt Nielsen, directors, and or officers as they were
• 5:08
  Speaker 1: intended third-party beneficiaries of the conditional leniency agreement between the DOJ,
• 5:14
  Speaker 1: Antitrust Division, and Stolt Nielsen. U.S. v. Florida West International Airways, Inc.,
• 5:19
  Speaker 1: 853 F.S.U.P.P. 2D, 1209, 1228-32, S.D. Florida, 2012. dismissing indictment
• 5:29
  Speaker 1: against employees of air cargo provider as he had a
• 5:33
  Speaker 1: third-party beneficiary standing necessary to establish his immunity under the
• 5:37
  Speaker 1: plea agreement between the government and his employer. Even if
• 5:50
  Speaker 1: the non-prosecution agreement was never fully communicated to defendant El-Siddiq,
• 5:55
  Speaker 1: he can enforce the non-prosecution agreement as a third-party beneficiary, U.S. v.
• 6:00
  Speaker 1: CFW Constitutional College, IMC 583F. SUPP 197 DSC 1984. An intended
• 6:10
  Speaker 1: third-party beneficiary of a contract may enforce its provisions. Thus,
• 6:14
  Speaker 1: if the government, in negotiating the aforementioned plea agreements, promised
• 6:19
  Speaker 1: that there would be no prosecution against the FW, the
• 6:22
  Speaker 1: promise must be enforced. This rule makes sense. Plea agreements
• 6:26
  Speaker 1: are interpreted in accordance with contract law principles U.S. v.
• 6:30
  Speaker 1: Cologne 220, F. 3D 4851, 2nd Circuit 2002. citing U.S. v.
• 6:37
  Speaker 1: Altrum 180 F. 3D 372-275 2nd Circuit 1999, and its Hornbook
• 6:45
  Speaker 1: contract law that an intended third-party beneficiary may enforce a contract.
• 6:50
  Speaker 1: See Subaru Distributions Corporation v. Subaru of America Inc. 425 F. 3D
• 6:54
  Speaker 1: 119-124 2nd Circuit 2005, Boche's v. Town of Ponce Inlet
• 6:58
  Speaker 1: 405 F. 3D 964 982 11th Circuit 2005. There is no
• 7:11
  Speaker 1: reason to treat plea or non-prosecution agreements differently from other contracts.
• 7:15
  Speaker 1: If anything, Second Circuit precedent strongly suggests that courts may
• 7:20
  Speaker 1: depart from ordinary contract principles when construing plea agreements only
• 7:24
  Speaker 1: when such departures cut against the government. See U.S. v.
• 7:28
  Speaker 1: Riggie 649 F. 3D 143 2nd Circuit 2011. Because plea agreements
• 7:35
  Speaker 1: are unique contracts, we temper the application of ordinary contract
• 7:39
  Speaker 1: principles with special due process concerns for fairness and the
• 7:44
  Speaker 1: adequacy of procedural safeguards. Quoting U.S. v. Waltman 610 F. 3D
• 7:48
  Speaker 1: 37 39-40 2nd Circuit 2010. In Altro 180 F. 3D 372
• 7:52
  Speaker 1: 610 375 Second Circuit, 1999. Plea agreements are unique contracts
• 8:03
  Speaker 1: we hold the government to the most meticulous standards of
• 8:06
  Speaker 1: both promise and performance. Original ellipses omitted. Quoting U.S. v.
• 8:13
  Speaker 1: Lawler 168 F. 3D 633 636 Second Circuit, 1999. It would
• 8:19
  Speaker 1: turn this doctrine on its head to deviate from ordinary
• 8:22
  Speaker 1: contract principles in a manner that benefits the government. to
• 8:26
  Speaker 1: the extent the government argues that Ms. Maxwell is not
• 8:29
  Speaker 1: a third-party beneficiary because the NPA did not mention her
• 8:33
  Speaker 1: by name. That argument should be rejected. As this court
• 8:36
  Speaker 1: has held an intention to benefit, a third party may
• 8:40
  Speaker 1: be gleaned from the contract as a whole and the
• 8:43
  Speaker 1: party need not be named specifically as a beneficiary. Owen
• 8:47
  Speaker 1: 601 F. 2D at 1250 And as the court stated in
• 8:51
  Speaker 1: Florida West, a plea agreement is enforceable by a third
• 8:55
  Speaker 1: party as long as the agreement evinces an intent to
• 8:58
  Speaker 1: extend immunity to a definable class of third parties and
• 9:02
  Speaker 1: the third party seeking enforcement falls within this category of beneficiaries. 853F. SUPP. 2D
• 9:11
  Speaker 1: at 1228 and 29. Defendant as a third party beneficiary
• 9:16
  Speaker 1: could enforce a plea agreement between the government and an
• 9:19
  Speaker 1: air cargo company which immunized unnamed employees of the company's subsidiaries.
• 9:24
  Speaker 1: See also Stolt Nielsen 524, F.SUPP 2D at 613, 620.
• 9:31
  Speaker 1: Defendants as third-party beneficiaries could enforce an agreement between the
• 9:35
  Speaker 1: government and Stolt Nielsen which promised leniency to unnamed directors, officers,
• 9:41
  Speaker 1: and employees. Here, the NPA grants immunity to any potential
• 9:45
  Speaker 1: co-conspirators of Epstein, including but not limited to four named individuals. A-178.
• 9:53
  Speaker 1: As the district court recognized, this is a definable class
• 9:57
  Speaker 1: that includes Ms. Maxwell. A-144-3. 3 the co-conspirator provision covers
• 10:02
  Speaker 1: any involvement of maxwell and offenses committed by epstein from
• 10:06
  Speaker 1: 2001 to 2007 other offenses that were the subject of
• 10:11
  Speaker 1: the fbi and the u.s attorney's office investigation and any
• 10:14
  Speaker 1: offenses that arose from the related grand jury investigation CF
• 10:19
  Speaker 1: Florida West, 853-F.SUPP.2D at 1228 and 29. All right, we're
• 10:27
  Speaker 1: going to wrap up this first episode here. And in
• 10:30
  Speaker 1: the next episode, we're going to pick up with B,
• 10:32
  Speaker 1: the co-conspirator's provision of the non-prosecution agreement binds the USAO, SDNY,
• 10:38
  Speaker 1: and ANABI is not to the contrary. All of the
• 10:41
  Speaker 1: information that goes with this episode can be found in
• 10:45
  Speaker 1: the description box. What's up everyone and welcome back to
• 10:48
  Speaker 1: the Epstein Chronicles. In this episode we're getting right back
• 10:52
  Speaker 1: to Ghislaine Maxwell's brief supporting her motion to appeal her sentence. B.
• 10:59
  Speaker 1: The co-conspirator's provision of the non-prosecution agreement binds the USAO-SDNY
• 11:05
  Speaker 1: and Anabi is not to the contrary. Embedded within Anabi's
• 11:10
  Speaker 1: canon of construction that prosecutors in one district cannot prosecute
• 11:14
  Speaker 1: in another district is the requirement that there must be
• 11:18
  Speaker 1: a complete absence of language expressing a broader intention. Thus,
• 11:22
  Speaker 1: if it affirmatively appears that the agreement contemplates a broader restriction,
• 11:27
  Speaker 1: Anabee's restrictive rule does not apply. U.S. v. Russo, 801 F. 2D
• 11:29
  Speaker 1: 624-626 Second Circuit, 1986 The language expressing broader intention can
• 11:32
  Speaker 1: be found In the MPA, which one explicitly states that
• 11:43
  Speaker 1: the United States also agrees that it will not institute
• 11:46
  Speaker 1: any criminal charges against any potential co-conspirators of Epstein. A-178
• 11:53
  Speaker 1: and 2 contains a structural separation of this clause from
• 11:56
  Speaker 1: the more restrictive language used elsewhere. And 3 utilizes the
• 12:00
  Speaker 1: expressed language that Epstein intended a global agreement. Obviously, an
• 12:05
  Speaker 1: intent to limit the immunity afforded the co-conspirators easily could
• 12:09
  Speaker 1: have been made explicit by the incorporation of limiting language.
• 12:14
  Speaker 1: No such language was utilized and was, in fact, removed
• 12:17
  Speaker 1: from the co-conspirator clause. A promise to bind other districts
• 12:21
  Speaker 1: can be inferred from negotiations between a defendant and a prosecutor,
• 12:26
  Speaker 1: see United States v. Alessi, 554 F. 2. D., 1139, 1153, and 4,
• 12:33
  Speaker 1: Second Circuit, 1976. The OPR, SA1-348, contains just such evidence
• 12:41
  Speaker 1: of the negotiations between the government and Epstein's counsel, which
• 12:45
  Speaker 1: in corroborating an intent on the part of the parties
• 12:48
  Speaker 1: to draft a co-conspirator clause that provided broader immunity, accords
• 12:52
  Speaker 1: with the plain meaning of the NPA. This is so
• 12:56
  Speaker 1: notwithstanding that the OPR relies almost exclusively on the distant
• 13:01
  Speaker 1: recollection of government employees whose judgment and professionalism were being
• 13:06
  Speaker 1: questioned with little to no input from Epstein's attorneys as
• 13:09
  Speaker 1: to who or what they intended or understood the co-conspirator
• 13:13
  Speaker 1: clause of the NPA to cover, CSA 166. The government
• 13:18
  Speaker 1: questions why Epstein would have sought a broader grant of
• 13:21
  Speaker 1: immunity for co-conspirators than for himself, BR 21, but the
• 13:26
  Speaker 1: answer is provided in the OPR. The line prosecutor remembered
• 13:30
  Speaker 1: that defense counsel told her that Epstein wanted to make
• 13:33
  Speaker 1: sure that he's the only one who takes the blame
• 13:36
  Speaker 1: for what happened, SA-193. Indeed, the government believed that Epstein's
• 13:41
  Speaker 1: conduct was his own dirty little secret and did not
• 13:44
  Speaker 1: have any specific evidence against Ms. Maxwell, even though they
• 13:48
  Speaker 1: had interviewed Carolyn, the complainant, in Count 6, and Annie Farmer,
• 13:52
  Speaker 1: two of the four women who testified at trial, SA-193,
• 13:55
  Speaker 1: and had also interviewed Virginia Roberts, who the government elected
• 14:00
  Speaker 1: not to call as a witness. and of course a
• 14:03
  Speaker 1: broader immunity deal for co-conspirators accomplish what Epstein may not
• 14:07
  Speaker 1: have been able to obtain more directly, namely co-conspirator immunity
• 14:12
  Speaker 1: that would have insulated Epstein from criminal prosecutions elsewhere, where
• 14:16
  Speaker 1: co-conspirators might otherwise have been forced to testify against him
• 14:20
  Speaker 1: in return for leniency. There is no question that the
• 14:23
  Speaker 1: NPA did not contain standard Federal Plea Agreement language, SA-103-FN.120,
• 14:30
  Speaker 1: The co-conspirator clause was, in the words of the government, unusual,
• 14:35
  Speaker 1: even very unusual and pretty weird. Not surprisingly, the first
• 14:39
  Speaker 1: iteration of this clause was proposed by the defense. It
• 14:43
  Speaker 1: precluded the initiation of any and all criminal charges which
• 14:47
  Speaker 1: might otherwise in the future be brought against forenamed female
• 14:51
  Speaker 1: assistants or any employee of a specific Epstein corporate entity
• 14:56
  Speaker 1: for any criminal charge that arises out of the ongoing
• 14:59
  Speaker 1: federal investigation. This demonstrates that, from the beginning, the defense
• 15:04
  Speaker 1: sought immunity for third parties beyond the SDFL. The government
• 15:08
  Speaker 1: responded with a draft proposal that resolved the federal criminal
• 15:12
  Speaker 1: liability of any co-conspirators in the Southern District of Florida
• 15:16
  Speaker 1: growing out of any criminal conduct by those persons known
• 15:19
  Speaker 1: to the USAO as of the date of the agreement, SA-100, SA-105. However,
• 15:26
  Speaker 1: that language limiting co-conspirator immunity to the Southern District of
• 15:30
  Speaker 1: Florida was removed from the final signed NPA. The intentional
• 15:35
  Speaker 1: excision of this limiting language from the draft version of
• 15:38
  Speaker 1: the co-conspirator clause establishes that that limitation was not included
• 15:42
  Speaker 1: to apply to the co-conspirator clause. Indeed, it is difficult
• 15:46
  Speaker 1: to imagine any clearer evidence than the purposeful removal of
• 15:50
  Speaker 1: that limiting language, especially as it's replaced by the term
• 15:54
  Speaker 1: United States. And to punctuate this point, the U.S. attorney himself,
• 15:59
  Speaker 1: as part of a final review and edit of the MPA,
• 16:02
  Speaker 1: instructed the line prosecutor to restore the reference to Epstein's
• 16:06
  Speaker 1: desire to reach a global agreement of his state and
• 16:09
  Speaker 1: federal criminal liabilities. The government denies that Maine Justice was
• 16:13
  Speaker 1: involved in the plea negotiations, but OPR demonstrates that Andrew C. Lurie,
• 16:18
  Speaker 1: Deputy Assistant Attorney General for the Department's Criminal Division, and
• 16:23
  Speaker 1: Chief of Staff to Assistant Attorney General Alice Fisher was
• 16:26
  Speaker 1: actively participating in a critical phase of the plea negotiations
• 16:30
  Speaker 1: in September from his new post at the department in Washington, D.C.
• 16:35
  Speaker 1: After his transfer, he continued to be consulted on the
• 16:38
  Speaker 1: negotiations and apprised of his status. He repeatedly rendered opinions
• 16:43
  Speaker 1: trying to close the deal involving a plea agreement and
• 16:46
  Speaker 1: the NPA. On September 24, 2007, Lurie said, now stationed
• 16:51
  Speaker 1: in Washington, D.C., at Maine Justice, sent additional comments on
• 16:56
  Speaker 1: the NPA's final draft. That afternoon, the final version was
• 17:00
  Speaker 1: circulated and signed. C. The court's failure to hold a
• 17:03
  Speaker 1: hearing on the scope of the non-prosecution agreement is an error.
• 17:07
  Speaker 1: What is significant with regard to this issue is the
• 17:10
  Speaker 1: lack of a sufficient record. Given that the district court
• 17:13
  Speaker 1: ignored the plain language of the co-conspirator clause, together with
• 17:17
  Speaker 1: the corroborating evidence from the OPR that establishes that the
• 17:20
  Speaker 1: language was changed to remove rather than add words of limitation,
• 17:25
  Speaker 1: the district court's decision to apply Anabi's rule of construction
• 17:29
  Speaker 1: without a hearing was an error. This is especially so
• 17:32
  Speaker 1: because the OPR was lacking in relevant information from defense
• 17:36
  Speaker 1: counsel as to their understanding of the agreement, and in
• 17:39
  Speaker 1: the absence of such information, the district court was obligated
• 17:43
  Speaker 1: to resolve any ambiguities in favor of Ms. Maxwell. The
• 17:47
  Speaker 1: government argues that based upon a NAVI, there is no
• 17:49
  Speaker 1: need for a hearing, but in fact courts in this
• 17:52
  Speaker 1: circuit have routinely recognized the need for evidentiary hearings where
• 17:56
  Speaker 1: the scope of an agreement is in dispute. The failure
• 17:59
  Speaker 1: to hold a hearing precluded Ms. Maxwell from offering evidence
• 18:03
  Speaker 1: as to the intent and understanding of defense counsel, As
• 18:06
  Speaker 1: a result, the court did not construe the NPA against
• 18:09
  Speaker 1: the government, as the law requires, but against Ms. Maxwell.
• 18:13
  Speaker 1: See United States v. Defoe, 163 F. 3D 725-728 Second Circuit, 1998.
• 18:22
  Speaker 1: A reviewing court must read the NPA's ambiguous provisions against
• 18:26
  Speaker 1: the government, which drafted the agreement and enjoys unequal bargaining
• 18:30
  Speaker 1: power in the sentencing process. See United States vs. Ellman, 286F. 3D, 86-89,
• 18:35
  Speaker 1: 2nd Circuit, 2002. United States vs. Reddy, 82, F. 3D, 551, 558,
• 18:37
  Speaker 1: and 559, 2nd Circuit, 1996. See also Defoe at 728.
• 18:52
  Speaker 1: In this instance, the district court accepted the facts proffered
• 18:55
  Speaker 1: by the U.S. Attorney's Office of the Southern District of
• 18:57
  Speaker 1: New York and relied on Anabi to preclude any further inquiry,
• 19:02
  Speaker 1: thereby eviscerating the exception in U.S. v. Russa Supra. Epstein
• 19:08
  Speaker 1: performed under the NPA in response to the promise of
• 19:11
  Speaker 1: the United States. The government, having received the totality of
• 19:14
  Speaker 1: the benefit of the bargained elements in the NPA, should
• 19:18
  Speaker 1: be held to its terms. There is no remedy other
• 19:20
  Speaker 1: than enforcement of the NPA according to its terms, or
• 19:24
  Speaker 1: should the court determine that such terms are ambiguous, the
• 19:27
  Speaker 1: holding of a hearing. Should the hearing establish that Epstein
• 19:30
  Speaker 1: understood the co-conspirator clause to be global... While the government
• 19:34
  Speaker 1: deemed its reach a mistake or the subject of regret, Epstein,
• 19:38
  Speaker 1: now dead, cannot undo it. The government, having removed limiting
• 19:42
  Speaker 1: language in the NPA, cannot restrict the NPA in retrospect
• 19:46
  Speaker 1: as it had convinced the district court. Point. number two.
• 19:51
  Speaker 1: The district court erred in crediting a juror's patently dishonest
• 19:54
  Speaker 1: testimony offered to explain false answers to material questions in
• 19:59
  Speaker 1: voir dire and further erred in concluding that honest answers
• 20:03
  Speaker 1: to those same questions would have not provided a valid
• 20:06
  Speaker 1: basis to remove the juror for cause. Juror honesty is
• 20:10
  Speaker 1: a bedrock of the criminal jury system. McDonough Power Equipment v. Greenwood,
• 20:16
  Speaker 1: 464 U.S. 548, 1984. For dire examination serves to protect
• 20:21
  Speaker 1: the right to a trial by an impartial jury. It
• 20:25
  Speaker 1: is designed to expose bias both known and unknown. The
• 20:28
  Speaker 1: trial judge has broad flexibility in responding to the allegations
• 20:32
  Speaker 1: of juror misconduct, particularly when the incidents relate to statements
• 20:36
  Speaker 1: made by the jurors themselves. rather than to outside influences
• 20:41
  Speaker 1: and do not violate the sanctity of jury deliberations. A
• 20:45
  Speaker 1: juror's dishonesty during voir dire undermines a defendant's right to
• 20:49
  Speaker 1: a fair trial. The United States v. Doggertis, 867 F.S.U.P.P., 2D. 445. 468,
• 20:53
  Speaker 1: SDNY 2012, citing Clark v. United States, 289 U.S. 1.11.1933,
• 20:55
  Speaker 1: vacated on other grounds, United States v. Parse, 789F. 3D, 83,
• 21:13
  Speaker 1: 2nd Circuit, 2015. A. Juror 50 concealed material information in
• 21:18
  Speaker 1: voir dire by giving false answers on a juror questionnaire
• 21:21
  Speaker 1: and then lied about it to the court in a
• 21:23
  Speaker 1: post-verdict hearing. Juror 50 was given a questionnaire to execute
• 21:27
  Speaker 1: under oath. It contained a statement of the case calling
• 21:31
  Speaker 1: attention to the subject of sex trafficking of minors on
• 21:34
  Speaker 1: the fourth page of the document. It posed its question
• 21:37
  Speaker 1: in the form of, have you ever, or anyone else?
• 21:40
  Speaker 1: The juror gave the court and counsel sworn false answers
• 21:43
  Speaker 1: on his questionnaire relating to the most sensitive issues in
• 21:46
  Speaker 1: the case, U.S. v. Lankford 990 F. 2D 6568 2nd Circuit 1993.
• 21:54
  Speaker 1: The court held a hearing narrowly confined to an inquiry
• 21:57
  Speaker 1: about the juror's false answers on the questionnaire. The juror,
• 22:01
  Speaker 1: through counsel, invoked his Fifth Amendment privilege and was granted
• 22:04
  Speaker 1: immunity by the government. to the extent he testified truthfully. Ironically,
• 22:08
  Speaker 1: he testified that his false statements on the jury questionnaire
• 22:12
  Speaker 1: were inadvertent. Hence, there was no reasonable basis upon which
• 22:16
  Speaker 1: to invoke his Fifth Amendment privilege as he was not
• 22:18
  Speaker 1: admitting to having made intentionally false statements and his exposure
• 22:22
  Speaker 1: to perjury charge existed without an immunity deal. This immunity
• 22:26
  Speaker 1: deal was a Potemkin's village providing only the veneer of credibility.
• 22:31
  Speaker 1: The court repeatedly noted that the immunity deal provided juror
• 22:35
  Speaker 1: 50 a strong incentive to testify truthfully, when in fact
• 22:39
  Speaker 1: it provided only a strong incentive to offer testimony that
• 22:42
  Speaker 1: would satisfy the government's interest in preserving the verdict. There
• 22:47
  Speaker 1: can be no dispute that juror 50's testimony established conclusively
• 22:51
  Speaker 1: that he falsely answered three separate questions on the jury questionnaire,
• 22:55
  Speaker 1: question 25, 48, and 49. It's no coincidence that juror
• 22:59
  Speaker 1: 50 gave false answers to these questions and only these questions.
• 23:04
  Speaker 1: There were questions that, had he answered truthfully, would have
• 23:07
  Speaker 1: revealed his prior sexual abuse. Juror 50 testified that he
• 23:11
  Speaker 1: inadvertently answered incorrectly all and only the questions that would
• 23:15
  Speaker 1: have elicited information about his child's sexual abuse. In response
• 23:20
  Speaker 1: to the court's inquiry as to whether he could be
• 23:22
  Speaker 1: a fair and impartial juror, he replied by rote in
• 23:26
  Speaker 1: the affirmative. His answers and explanation were incredible, ever-shifting, and
• 23:31
  Speaker 1: even outright contradictory. He attributed his false answers to having
• 23:35
  Speaker 1: simply misread questions because he was tired and distracted, but
• 23:39
  Speaker 1: then claimed that one answer was predicated on his view
• 23:42
  Speaker 1: that his stepbrother was not a family member and another
• 23:45
  Speaker 1: on his view that he did not consider that his
• 23:48
  Speaker 1: sexual assault made him a victim of a crime, an
• 23:50
  Speaker 1: explanation that made sense only if he had actually read
• 23:54
  Speaker 1: and understood the questions in the first instance. Juror 50's
• 23:58
  Speaker 1: testimony was incredible as a matter of law, but the
• 24:01
  Speaker 1: court found that the juror's false statements were an inadvertent mistake.
• 24:05
  Speaker 1: The court refused to inquire as to the juror's post-trial
• 24:08
  Speaker 1: activity that included multiple media interviews about the part his
• 24:12
  Speaker 1: own experience as a victim of sexual abuse played in
• 24:16
  Speaker 1: his role as a juror on the case. Nor would
• 24:18
  Speaker 1: the court inquire about juror 50's statements concerning a second
• 24:22
  Speaker 1: juror's undisclosed sexual abuse. Juror 50's pretrial selective false answers
• 24:28
  Speaker 1: only to questions that would have elicited His child sexual abuse,
• 24:32
  Speaker 1: his post-verdict activity, and his patently false and contradictory explanations
• 24:37
  Speaker 1: in the post-verdict hearing should have disqualified him for service
• 24:40
  Speaker 1: as a juror in this case. Alright folks, we're going
• 24:43
  Speaker 1: to wrap up right there, and in the next episode,
• 24:46
  Speaker 1: talking about the topic we're going to pick up with, B.
• 24:49
  Speaker 1: Had Juror 50 disclosed in Vore Dyer his traumatic experience
• 24:53
  Speaker 1: as a victim of child sex abuse, the information would
• 24:56
  Speaker 1: have established a valid basis for a cause challenge. All
• 25:00
  Speaker 1: of the information that goes with this episode can be
• 25:03
  Speaker 1: found in the description box. What's up, everyone, and welcome
• 25:07
  Speaker 1: back to the Epstein Chronicles. In this episode, we're going
• 25:10
  Speaker 1: to get right back to the Ghislaine Maxwell filing, where
• 25:14
  Speaker 1: she argues why the appeals court should grant her an appeal. B.
• 25:19
  Speaker 1: Had Juror 50 disclosed in Vore Dyer his traumatic experience
• 25:23
  Speaker 1: as a victim of child sex abuse, the information would
• 25:26
  Speaker 1: have established a valid basis for a cause challenge. At
• 25:30
  Speaker 1: the hearing, Juror 50 disclosed the facts of his sexual abuse,
• 25:33
  Speaker 1: which significantly paralleled the abuse described by the government's four
• 25:37
  Speaker 1: key victim witnesses at trial. Like the four accusers, Juror 50, 1.
• 25:42
  Speaker 1: was sexually abused as a minor, 2. was abused on
• 25:46
  Speaker 1: multiple occasions over the course of several years, and 3.
• 25:50
  Speaker 1: delayed reporting the abuse. A. 267 and 268. Like the
• 25:55
  Speaker 1: four accusers, Juror 50 was abused by two people who
• 25:59
  Speaker 1: were friends, and who each had participated in the abuse, A267. Furthermore,
• 26:05
  Speaker 1: juror 50 was not abused by a stranger or sexually
• 26:08
  Speaker 1: assaulted by someone he did not know. Like the four accusers,
• 26:12
  Speaker 1: he was sexually abused by someone familiar to him, namely
• 26:16
  Speaker 1: a stepbrother. These similarities are significant and contrast sharply with
• 26:20
  Speaker 1: other jurors who answered yes to question number 48 and
• 26:24
  Speaker 1: were not struck for cause, but who disclosed incidents that
• 26:27
  Speaker 1: were not directly related analogous to the facts presented at trial.
• 26:32
  Speaker 1: In this situation where Juror 50 experienced the same traumatic
• 26:35
  Speaker 1: childhood sexual abuse that the trial victims had experienced, with
• 26:40
  Speaker 1: many of the same surrounding circumstances, he was not capable
• 26:43
  Speaker 1: of setting his experience aside and impartially deciding the case
• 26:47
  Speaker 1: solely on the evidence at trial. See DeGardis 867 FSUPP
• 26:51
  Speaker 1: 2D at 472. Courts imply bias when there are similarities
• 26:58
  Speaker 1: between the personal experiences of the juror and the issues
• 27:01
  Speaker 1: being litigated. Quoting United States v. Sampson, 820 F.S.U.P.P. 2D, 151, 163-64, D.Mass, 2011.
• 27:05
  Speaker 1: Sampson v. U.S., 724 F. 3D, 150, 167, 1st Circuit, 2013.
• 27:21
  Speaker 1: it would be natural for a juror who had been
• 27:23
  Speaker 1: the victim of the same crime to harbor bias against
• 27:26
  Speaker 1: the defendant accused of such a crime. Had this information
• 27:30
  Speaker 1: come to light during Vordire, Juror 50 would have been
• 27:33
  Speaker 1: struck for cause. Samson, 724 F. 3D, at 167, affirming grant
• 27:39
  Speaker 1: of a new trial when juror in a gunpoint bank
• 27:43
  Speaker 1: robbery case did not disclose that she had been threatened
• 27:46
  Speaker 1: by her husband with a gun. State v. Ashfar, 196, A. 3D- 93- 94- 97.
• 27:51
  Speaker 1: New Hampshire, 2018. Affirming grant of a new trial when
• 27:59
  Speaker 1: juror in child sexual assault case did not disclose that
• 28:02
  Speaker 1: he was sexually assaulted by a babysitter when he was
• 28:05
  Speaker 1: 5 or 6 years old. U.S. v. Torres, 128, F. 3D- 38, 47-48,
• 28:06
  Speaker 1: 2nd Circuit, 1997. Affirming for cause strike of juror in
• 28:08
  Speaker 1: a structuring case who did not disclose she engaged in
• 28:21
  Speaker 1: similar structuring activity herself. Burton v. Johnson, 948 F. 2D, 1150-1159,
• 28:29
  Speaker 1: 10th Circuit, 1991. Affirming grant of new trial when juror
• 28:33
  Speaker 1: in murder case involving domestic violence did not disclose she
• 28:37
  Speaker 1: was living in similarly abusive circumstances at the time of
• 28:41
  Speaker 1: the trial. Inexplicably, the court held that based on the
• 28:44
  Speaker 1: answers of the juror at the hearing, he would not
• 28:46
  Speaker 1: have been excused for cause. even if he had disclosed
• 28:49
  Speaker 1: his childhood abuse during voir dire. The court's determination that
• 28:54
  Speaker 1: it would not have granted a challenge for cause of
• 28:56
  Speaker 1: the juror had he given truthful answers is an abuse
• 28:59
  Speaker 1: of discretion. Demonstrated bias in the response to questions in
• 29:03
  Speaker 1: voir dire may result in a juror being excused for cause.
• 29:07
  Speaker 1: The necessity of truthful answers by prospective jurors is obvious.
• 29:11
  Speaker 1: If this process is to serve its purpose, the failure
• 29:14
  Speaker 1: to provide truthful answers is itself a proper challenge for cause.
• 29:19
  Speaker 1: After the hearing, the court held that the juror was
• 29:21
  Speaker 1: entitled to use his life experiences in deliberations, even though
• 29:26
  Speaker 1: the life experiences mirrored testimony at trial and were particular
• 29:29
  Speaker 1: to the charges against Maxwell. But when a juror has
• 29:33
  Speaker 1: life experiences that correspond with evidence presented during trial, that
• 29:37
  Speaker 1: congruence raises obvious concerns about the juror's possible implied or
• 29:42
  Speaker 1: inferred bias. U.S. v. Torres, 128 F. 3D at 47 and 48. C.
• 29:45
  Speaker 1: Burton v. Johnson, 948 F. 2D, 1150, 1158 through 1159. Tenth Circuit, 1991.
• 29:58
  Speaker 1: That bias went unexplored at the hearing resulting in the
• 30:01
  Speaker 1: failure of the court to take proper steps to screen
• 30:03
  Speaker 1: the juror for bias after the verdict. A conviction will
• 30:07
  Speaker 1: only be reversed if the district court abused its discretion
• 30:11
  Speaker 1: by incorporating an error of law or arresting its decision
• 30:14
  Speaker 1: on a clearly erroneous factual finding. Hereabout the court's finding
• 30:19
  Speaker 1: that juror 50 was credible, a clearly erroneous factual finding,
• 30:23
  Speaker 1: and its ruling that juror 50's truthful answers during voir
• 30:26
  Speaker 1: dire would not have established a valid basis for cause
• 30:30
  Speaker 1: and error of law, meet that standard for abuse of discretion. c.
• 30:34
  Speaker 1: The district court abused its discretion in imposing unreasonable limitations
• 30:39
  Speaker 1: on the range of questions it agreed to pose to
• 30:41
  Speaker 1: juror 50 at the post-verdict hearing. The court's decision to
• 30:45
  Speaker 1: narrow the scope of the hearing to questions relating— only
• 30:48
  Speaker 1: to the jurors' false responses to the juror questionnaire was
• 30:51
  Speaker 1: an abuse of discretion because it deprived Ms. Maxwell of
• 30:55
  Speaker 1: a full and fair opportunity to establish juror 50's bias.
• 30:59
  Speaker 1: For example, the court refused to take juror 50 why
• 31:02
  Speaker 1: he disclosed to the jury that he was a victim
• 31:05
  Speaker 1: of sexual assault. According to juror 50, coming to a
• 31:08
  Speaker 1: unanimous verdict wasn't easy, to be honest. In fact, several
• 31:12
  Speaker 1: jurors doubted the credibility of Jane and Carolyn. When I
• 31:15
  Speaker 1: shared that I had been sexually abused, Recounted Juror 50,
• 31:19
  Speaker 1: the jurors who had doubts were able to sort of
• 31:21
  Speaker 1: come around on and they were able to come around
• 31:24
  Speaker 1: on the memory aspect of the sexual abuse. Docket 613
• 31:28
  Speaker 1: at 14. The standard of review applies to questions that
• 31:32
  Speaker 1: the court decides to ask or not ask a juror.
• 31:35
  Speaker 1: The court recently emphasized that a court's discretion is not
• 31:38
  Speaker 1: boundless in this regard. See U.S. v. Nieves, 58 F. 4, 623-626,
• 31:41
  Speaker 1: 2nd Circuit, 2023. The discretion must be exercised consistent with
• 31:50
  Speaker 1: the essential demands of fairness. United States v. Barnes, 604, F. 2D, 121, 137-38,
• 31:54
  Speaker 1: Second Circuit, 1979. Quoting Aldridge v. United States, 283, U.S., 308, 310, 1931.
• 31:57
  Speaker 1: See also United States v. Bright, 2022, W.L., 53, 621,
• 31:58
  Speaker 1: at 1, Second Circuit, January 6, 2022. The defense deserves
• 32:19
  Speaker 1: a full and fair opportunity to expose bias or prejudice
• 32:22
  Speaker 1: on the part of the Nierman. United States v. Colombo,
• 32:26
  Speaker 1: 869 F2D, 149-151, 2nd Circuit, 1989. Quoting Barnes, 604 F2D
• 32:34
  Speaker 1: at 139, Nieves at 632, Nieves stands for the proposition
• 32:39
  Speaker 1: that there must be sufficient fact-finding to allow for facts
• 32:42
  Speaker 1: probative of the three forms of bias to reveal themselves. Otherwise,
• 32:47
  Speaker 1: a violation of fundamental fairness arises if the voir dire
• 32:51
  Speaker 1: is not adequate to identify unqualified jurors. Here, the inquiry
• 32:55
  Speaker 1: by the court at the post-verdict hearing failed to provide
• 32:58
  Speaker 1: a full and fair opportunity to expose bias. While it
• 33:01
  Speaker 1: need not give the defense lawyers the opportunity to question
• 33:05
  Speaker 1: the juror, it must fulfill its constitutional duty to eliciting
• 33:09
  Speaker 1: sufficient information to allow a determination of whether a challenge
• 33:13
  Speaker 1: to the juror for cause should be made. U.S. v. Greer, 285, F. 3D, 158,
• 33:20
  Speaker 1: 2nd Circuit, 2002. Set out the types of bias that
• 33:24
  Speaker 1: produce proper cause challenges. Cause challenges are generally based on
• 33:28
  Speaker 1: one of three species of bias. 1. Actual bias, or
• 33:32
  Speaker 1: bias in fact. 2. Implied bias, or bias that is
• 33:36
  Speaker 1: presumed as a matter of law where a typical person
• 33:39
  Speaker 1: in the juror's position would be biased irrespective of whether
• 33:43
  Speaker 1: actual bias exists. 3. Inferable bias, which arises when a
• 33:48
  Speaker 1: juror discloses a fact that bespeaks a risk of partiality
• 33:51
  Speaker 1: sufficiently significant to warrant granting the trial judge discretion to
• 33:56
  Speaker 1: excuse the juror for cause, but not so great as
• 33:59
  Speaker 1: to make mandatory a presumption of bias. 285 F. 3d at
• 34:05
  Speaker 1: 171 and 172. All three forms of bias must be
• 34:09
  Speaker 1: grounded in facts developed at Vordire. Torres 128 F. 3d at 47.
• 34:16
  Speaker 1: The bias implied by jurors' false answers went unexplored. Nieves
• 34:20
  Speaker 1: turned on the court's failure to explore juror bias related
• 34:23
  Speaker 1: to gangs, a prejudice analogous to the systematic or pervasive
• 34:28
  Speaker 1: bias in the community against accused sex traffickers and those
• 34:32
  Speaker 1: who consort with them. Maxwell, tied to Epstein by media coverage,
• 34:36
  Speaker 1: went to trial against a constant drumbeat of news and
• 34:38
  Speaker 1: allegations concerning child molesters and sex trafficking. Far more pervasive
• 34:43
  Speaker 1: than fear of gang violence was fear and revulsion as
• 34:46
  Speaker 1: to the child sex abuse and trafficking of which Epstein
• 34:49
  Speaker 1: and then Maxwell became the poster child. In the hearing,
• 34:53
  Speaker 1: and despite defense suggested questions, the court refused to explore
• 34:57
  Speaker 1: juror 50's child sexual abuse for bias. To assess a
• 35:01
  Speaker 1: challenge for cause as to this seated juror after trial,
• 35:04
  Speaker 1: the court should use the same standards for cause challenges
• 35:07
  Speaker 1: at trial. To do otherwise would appear to shield the
• 35:10
  Speaker 1: verdict rather than the defendant from improper juror bias. As
• 35:14
  Speaker 1: in Nieves, the jurors omitted information related to a material
• 35:18
  Speaker 1: issue and was at trial the cornerstone of the government's theory.
• 35:22
  Speaker 1: There was a strong likelihood that the material issue would
• 35:25
  Speaker 1: skew deliberations considering the strong feelings that sex trafficking of
• 35:29
  Speaker 1: minors engenders. See Nieves. See also Barnes 604 F. 2d at
• 35:35
  Speaker 1: 137 through 139. The court deprived Maxwell, unfairly, of the
• 35:40
  Speaker 1: opportunity post-trial of to unearth a pervasive bias relevant to
• 35:43
  Speaker 1: the issues pivotal to the case against her. Alright folks,
• 35:46
  Speaker 1: we're going to wrap up right there, and in the
• 35:48
  Speaker 1: next episode, we're going to finish off this document. All
• 35:51
  Speaker 1: of the information that goes with this episode can be
• 35:54
  Speaker 1: found in the description box. What's up everyone, and welcome
• 35:58
  Speaker 1: back to the Epstein Chronicles. In this episode, we're going
• 36:01
  Speaker 1: to finish off Ghislaine Maxwell's brief as to why she
• 36:05
  Speaker 1: should be granted an appeal. D. Juror 50's actual implied
• 36:11
  Speaker 1: and inferable bias was established. Maxwell does not seek a
• 36:15
  Speaker 1: per se rule of exclusion of victims of child abuse
• 36:18
  Speaker 1: in sex trafficking cases, although admittedly it would be difficult
• 36:21
  Speaker 1: to imagine how such a traumatic experience could fail to
• 36:25
  Speaker 1: give rise to inferable bias. Certain life experiences create permanent biases. Nevertheless,
• 36:31
  Speaker 1: it is the juror in this situation that the law
• 36:34
  Speaker 1: would properly, cautiously incapacitate because persons in such a situation
• 36:39
  Speaker 1: would naturally feel prejudice. In his post-verdict interviews, Juror 50
• 36:44
  Speaker 1: admitted as much when he described how he identified with
• 36:47
  Speaker 1: the government witnesses through the lens of his own experience
• 36:50
  Speaker 1: of child sexual abuse, convinced other jurors to credit the
• 36:53
  Speaker 1: testimony of government witnesses and discredit defense witnesses precisely because
• 36:58
  Speaker 1: of his unique insight about memory for child sexual assault,
• 37:03
  Speaker 1: and bonded so profoundly with the government witnesses that that
• 37:06
  Speaker 1: he felt compelled to contact one after trial and to
• 37:09
  Speaker 1: give interviews about his own experience. Suffice to say, this
• 37:13
  Speaker 1: was not an example of an impartial juror using his
• 37:15
  Speaker 1: life experiences in the performance of his civic duty, contrary
• 37:19
  Speaker 1: to the court's view, A. 352. Juror 50 had no
• 37:23
  Speaker 1: such relationships to the parties, counsel, or the very crime itself.
• 37:28
  Speaker 1: But his omissions during Vordire presented the sort of extreme
• 37:31
  Speaker 1: situation that would qualify for presumptive bias. Torres at 46.
• 37:38
  Speaker 1: The average person victimized by sexual abuse would be biased
• 37:42
  Speaker 1: when he speaks about his healing process, his trauma, and
• 37:46
  Speaker 1: his need for therapy to deal with the stress of
• 37:48
  Speaker 1: the Maxwell case. In determining whether a juror should be
• 37:52
  Speaker 1: excluded on the grounds of implied bias, a juror's statements
• 37:55
  Speaker 1: in Vordire are completely irrelevant. The juror may declare that
• 38:00
  Speaker 1: he feels no prejudice in the case, but the law
• 38:03
  Speaker 1: cautiously incapacitates him from serving on the jury because in general,
• 38:07
  Speaker 1: persons in a similar situation would feel prejudice. U.S. v. Burr, 25,
• 38:13
  Speaker 1: Federal Case 49 and 50, C.C., Virginia, 1807. It's called
• 38:18
  Speaker 1: the Average Person Test. C.U.S. v. Haynes, 398, F2D, 980, 984,
• 38:21
  Speaker 1: 2nd Circuit, 1968. Dennis v. The U.S., 339, U.S. 162, 176, 1950,
• 38:33
  Speaker 1: Juror 50 fails the test. Smith v. Phillips, 455, U.S. 209, 222, 1982,
• 38:41
  Speaker 1: O'Connor J. Concurring, led this court to caution that automatically
• 38:45
  Speaker 1: presumed biased deals mainly with jurors who were related to
• 38:48
  Speaker 1: the parties or who were victims of the alleged crime itself. I.D.
• 38:53
  Speaker 1: quoting Torres, 128, F. 3D at 45. But this limited set
• 38:58
  Speaker 1: of examples is not exclusive. And while sex abuse victims
• 39:01
  Speaker 1: who timely disclose their victimization may not be presumed biased,
• 39:05
  Speaker 1: jurors who do not disclose their victimization, thereby depriving the
• 39:09
  Speaker 1: court and counsel of vital information as to challenges for
• 39:13
  Speaker 1: cause or peremptory challenges, creates the extreme situation warned about
• 39:18
  Speaker 1: by Justice O'Connor and the Torres Court. See also Nieves.
• 39:22
  Speaker 1: This court has also recognized the third form of partiality
• 39:26
  Speaker 1: known as inferable bias, applicable in a few circumstances. that
• 39:30
  Speaker 1: involve no showing of actual bias and that fall outside
• 39:34
  Speaker 1: of the implied bias category, where a court may nevertheless
• 39:37
  Speaker 1: properly decide to excuse a juror. Torres 128 F. 3D at
• 39:40
  Speaker 1: 46 and 47. DeGardis 867 F.S.U.P.P. 2D at 475. bias
• 39:50
  Speaker 1: may be inferred when a juror discloses a fact that
• 39:53
  Speaker 1: bespeaks a risk of partiality sufficiently significant to warrant granting
• 39:57
  Speaker 1: the trial judge discretion to excuse the juror for cause,
• 40:01
  Speaker 1: but not so great as to make a presumption of
• 40:03
  Speaker 1: bias mandatory. Torres at 43 and 47. In Torres, the
• 40:08
  Speaker 1: Second Circuit declined to consider the precise scope of a
• 40:12
  Speaker 1: trial judge's discretion to infer bias. The circumstances herein present
• 40:17
  Speaker 1: a scenario in which bias is inferred from the non-disclosure
• 40:21
  Speaker 1: of critical potentially disqualifying information at the time of or dire,
• 40:25
  Speaker 1: because the risk of partiality is sufficiently significant to excuse
• 40:29
  Speaker 1: the juror for cause based on non-disclosure. Because in such
• 40:33
  Speaker 1: cases the bias of a juror will rarely be admitted
• 40:36
  Speaker 1: by the juror himself, partly because the juror may have
• 40:39
  Speaker 1: an interest in concealing his own bias, or partly because
• 40:42
  Speaker 1: the juror may be unaware of it, partiality necessarily must
• 40:46
  Speaker 1: be inferred from surrounding facts and circumstances. McDonough, 464, U.S.
• 40:52
  Speaker 1: at 558, Brennan J. concurring. Juror 50 claims to have
• 40:56
  Speaker 1: connected his history with the charges in the case, despite
• 41:00
  Speaker 1: the description in the questionnaire. The implausibility of the explanation
• 41:04
  Speaker 1: that he did not see the key questions related to
• 41:06
  Speaker 1: sex abuse in his belief that they only apply to
• 41:09
  Speaker 1: the others and to not him, Beggar's belief, since the
• 41:12
  Speaker 1: process was to determine if he was qualified to be
• 41:15
  Speaker 1: a juror. The court, in accepting his answers, was credulous,
• 41:19
  Speaker 1: willing to trust the juror's answers almost uncritically. The court
• 41:24
  Speaker 1: also ignored existing authority for the proposition that a new
• 41:27
  Speaker 1: trial may still be ordered, separate from the McDonough prongs
• 41:30
  Speaker 1: if the defendant can show bias. CEG Jones v. Cooper,
• 41:34
  Speaker 1: 311 F. 3D 306 310 4th Circuit 2002 A showing that
• 41:40
  Speaker 1: a juror was actually biased, regardless of whether the juror
• 41:43
  Speaker 1: was truthful or deceitful, can also entitle a defendant to
• 41:47
  Speaker 1: a new trial. Skaggs v. Otis Elevator Company, 164, F. 3D 511-516,
• 41:55
  Speaker 1: 10th Circuit, 1998. The advent of the McDonough test did
• 41:59
  Speaker 1: not eliminate a litigant's broader historic right to prove actual
• 42:02
  Speaker 1: or implied juror bias. In McDonough itself, Justices Blackmun, Stevens,
• 42:07
  Speaker 1: and O'Connor concurred separately to clarify that jurors' partiality could
• 42:12
  Speaker 1: still be proven by showing actual or implied bias. McDonough, 464, U.S.
• 42:18
  Speaker 1: at 556. While the McDonough court highlighted the importance of
• 42:22
  Speaker 1: voir dire process as a guard against juror bias, it
• 42:25
  Speaker 1: also noted that no trial is perfect and that counsel
• 42:28
  Speaker 1: has a responsibility to obtain relevant information from prospective jurors. 464, U.S.
• 42:33
  Speaker 1: at 554 and 555. While the court unfairly limited the
• 42:39
  Speaker 1: inquiry into Juror 50's bias, the record nevertheless amply demonstrates
• 42:44
  Speaker 1: that Juror 50 gave intentionally false statements under oath in
• 42:48
  Speaker 1: his juror questionnaire to conceal that he had experienced childhood
• 42:52
  Speaker 1: sexual abuse identical to that experienced by the victims in
• 42:55
  Speaker 1: the case and lied to conceal his misconduct at the hearing.
• 42:59
  Speaker 1: The court abused its discretion in not granting Ms. Maxwell
• 43:03
  Speaker 1: a new trial. Point number three. the district court earned
• 43:07
  Speaker 1: sentencing Ms. Maxwell. The government defends the court's decision to
• 43:11
  Speaker 1: apply a four-level leadership enhancement under Section 3B1. 1 of the
• 43:15
  Speaker 1: sentencing guidelines. However, the trial evidence did not support a
• 43:19
  Speaker 1: finding that Ms. Maxwell was an organizer or leader of
• 43:23
  Speaker 1: criminal activity that was otherwise extensive, because there was no
• 43:27
  Speaker 1: evidence that she supervised another criminal participant. Specifically, the court's
• 43:31
  Speaker 1: findings That Ms. Maxwell supervised Sarah Kellan, who the government
• 43:35
  Speaker 1: claimed was a criminal participant but chose not to indict,
• 43:38
  Speaker 1: is unsupported by the record. See BR-77. This error, coupled
• 43:44
  Speaker 1: with the court's failure to provide reasons for its upward
• 43:47
  Speaker 1: variance as required by U.S. Code 18, Section 3553, C-2,
• 43:50
  Speaker 1: requires that Ms. Maxwell be resentenced. To qualify for an
• 43:57
  Speaker 1: adjustment under this section, the defendant must have been the organizer, leader, manager,
• 44:02
  Speaker 1: or supervisor, or of one or more participants. See USSG
• 44:06
  Speaker 1: Section 3B1. 1. The government at sentencing correctly conceded that there
• 44:12
  Speaker 1: was no direct evidence that Maxwell supervised Kellen. A-406. The
• 44:16
  Speaker 1: two pilots did not know who Kellen worked for and
• 44:19
  Speaker 1: waffled in their testimony. TR-204. But Kimberly Espinoza did. In fact,
• 44:25
  Speaker 1: according to Espinoza, by the time Kellan began working for
• 44:28
  Speaker 1: Epstein in 2001-2002, Ms. Maxwell and Epstein went their separate ways,
• 44:34
  Speaker 1: and Kellan sat in the office where Ms. Maxwell used
• 44:36
  Speaker 1: to sit and managed Epstein's properties. Carolyn corroborates this fact
• 44:41
  Speaker 1: when she testified that there was a clean break in
• 44:44
  Speaker 1: time between when she dealt with Maxwell and when she
• 44:46
  Speaker 1: dealt with Kellan. There is quite simply not a single
• 44:49
  Speaker 1: witness that testified that Ms. Maxwell supervised Kellan in any capacity,
• 44:54
  Speaker 1: much less in connection with anything of a criminal nature.
• 44:57
  Speaker 1: Nor does there exist an earlier version of the 2005
• 45:01
  Speaker 1: Household Manual, attested to by Juan Alessi, or Flight Records
• 45:04
  Speaker 1: supporting a finding that Ms. Maxwell supervised Sarah Kellan as
• 45:08
  Speaker 1: a criminal participant. This is the thin gruel upon which
• 45:12
  Speaker 1: the court based its finding, CA-417, and it is simply
• 45:16
  Speaker 1: not sufficient to support the enhancement, even by a preponderance
• 45:20
  Speaker 1: of the evidence. Conclusion For the reasons stated here and
• 45:24
  Speaker 1: in points 1 and 2 of Ms. Maxwell's principal brief,
• 45:27
  Speaker 1: the conviction should be reversed and the indictment or apportion
• 45:30
  Speaker 1: thereof be dismissed and a new trial ordered on any
• 45:34
  Speaker 1: remaining counts. Alternatively, for the reasons stated in point 1,
• 45:38
  Speaker 1: the matter should be remanded to the district court for
• 45:41
  Speaker 1: a hearing. For the reasons stated in points 2, point
• 45:44
  Speaker 1: 2 herein, and point 4 of Ms. Maxwell's principal brief,
• 45:48
  Speaker 1: the conviction should be reversed and the matter remanded for
• 45:51
  Speaker 1: a new trial. Alternatively, for the reasons stated in point
• 45:54
  Speaker 1: three of Ms. Maxwell's principal brief point two herein, the
• 45:58
  Speaker 1: matter should be remanded to the district court for a hearing.
• 46:02
  Speaker 1: For the reasons stated in point five of Ms. Maxwell's
• 46:05
  Speaker 1: principal brief point three herein, the matter should be remanded
• 46:08
  Speaker 1: to the district court for resentencing. This document was dated
• 46:13
  Speaker 1: July 27th, 2023, and it was signed by Diana Fabby Sampson.
• 46:19
  Speaker 1: All right, folks, that's going to do it for Glenn
• 46:20
  Speaker 1: Maxwell's brief as to why she should get an appeal.
• 46:25
  Speaker 1: All of the information that goes with this episode can
• 46:28
  Speaker 1: be found in the description box.