Latest / The Epstein Chronicles / Mega Edition: The DOJ Lights Ghislaine Maxwell Up In Their Response To Her Appeal Request (Part 7-10) (9/5/26)

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Mega Edition: The DOJ Lights Ghislaine Maxwell Up In Their Response To Her Appeal Request (Part 7-10) (9/5/26) · The Epstein Chronicles

• 0:00
  Speaker 1: What's up, everyone, and welcome back to the Epstein Chronicles.
• 0:04
  Speaker 1: In this episode, we're getting right back to the United
• 0:06
  Speaker 1: States government's brief in response to Ghislaine Maxwell's attempt to
• 0:11
  Speaker 1: appeal her sentence. Point number three. The district court did
• 0:15
  Speaker 1: not abuse its discretion in concluding that Juror 50 could
• 0:18
  Speaker 1: be fair and impartial, notwithstanding his inadvertent mistakes on his
• 0:22
  Speaker 1: juror questionnaire. Maxwell contends that she was denied her right
• 0:26
  Speaker 1: to a fair and impartial jury because a juror failed
• 0:30
  Speaker 1: to disclose during Vore Dyer that he was sexually abused
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  Speaker 1: as a child, and therefore incorrectly answered this question on
• 0:37
  Speaker 1: his written questionnaire. After an extensive hearing, Judge Nathan concluded
• 0:41
  Speaker 1: that the juror's error was inadvertent, and in any event,
• 0:45
  Speaker 1: she would not have struck the juror for cause had
• 0:47
  Speaker 1: he answered those questions accurately, because he was not biased
• 0:50
  Speaker 1: in any way against Maxwell and was qualified to serve
• 0:54
  Speaker 1: as a juror. Judge Nathan, therefore, found that Maxwell failed
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  Speaker 1: to meet the high bar for a new trial and
• 1:00
  Speaker 1: denied her motion. This court should affirm that careful determination. A.
• 1:05
  Speaker 1: Irrelevant Facts 1. The Jury Selection Process In November 2021,
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  Speaker 1: in advance of trial, 694 jurors completed a juror questionnaire
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  Speaker 1: approved by the district court. The juror questionnaire was 29
• 1:20
  Speaker 1: pages and consisted of 51 questions, many of which contained subparts.
• 1:25
  Speaker 1: After the parties reviewed the questionnaires, 231 of the 694
• 1:31
  Speaker 1: proceeded to voir dire. The district court then examined prospective jurors,
• 1:36
  Speaker 1: asking them about questions in the jury questionnaire that prospective
• 1:39
  Speaker 1: jurors had answered affirmatively. The district court asked the prospective
• 1:43
  Speaker 1: jurors whether the information or experiences resulting in the affirmative
• 1:48
  Speaker 1: answer would interfere with their ability to be fair and impartial.
• 1:52
  Speaker 1: At the conclusion of the voir dire, the district court
• 1:55
  Speaker 1: qualified 58 jurors. Of the 58 individuals who were qualified
• 2:00
  Speaker 1: to serve as jurors, eight individuals responded to question 48
• 2:04
  Speaker 1: of the juror questionnaire that they themselves had been a
• 2:07
  Speaker 1: victim of sexual harassment, sexual abuse, or sexual assault, and
• 2:11
  Speaker 1: that this experience would not affect their ability to serve
• 2:14
  Speaker 1: fairly and impartially as a juror in the case. Each
• 2:18
  Speaker 1: confirmed that he or she could be fair and impartial
• 2:22
  Speaker 1: and defense counsel did not move to strike any of
• 2:24
  Speaker 1: these jurors for cause based on their answers to question 48.
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  Speaker 1: For instance, one juror said that she was sexually molested
• 2:32
  Speaker 1: by an uncle when she was 12 or 13, but
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  Speaker 1: that would not affect her ability to be fair and
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  Speaker 1: impartial in the case. Another juror indicated that she had
• 2:41
  Speaker 1: recently reported that a friend was being coerced and sexually
• 2:44
  Speaker 1: abused by a professor, but confirmed that the experience would
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  Speaker 1: not in any way interfere with her ability to be
• 2:51
  Speaker 1: fair and impartial. Neither the government nor the defense counsel
• 2:56
  Speaker 1: challenged those jurors for cause. The parties then exercised their
• 3:00
  Speaker 1: peremptory strikes and the jury was seated. 2. Juror 50
• 3:05
  Speaker 1: Juror 50 completed the questionnaire and was questioned by Judge
• 3:09
  Speaker 1: Nathan Jeringvor Dyer. In his questionnaire, Juror 50 repeatedly made
• 3:13
  Speaker 1: clear that he could be fair and impartial. In response
• 3:17
  Speaker 1: to question number 13, He indicated that he could decide
• 3:20
  Speaker 1: the case based solely on the evidence or lack of
• 3:23
  Speaker 1: evidence presented in court and not on the basis of conjecture, suspicion, bias, sympathy,
• 3:29
  Speaker 1: or prejudice. He also accepted the principle that the law
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  Speaker 1: provides that a defendant in a criminal case is presumed
• 3:36
  Speaker 1: innocent and the government is required to prove guilt beyond
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  Speaker 1: a reasonable doubt. Juror 50 indicated that There was nothing
• 3:44
  Speaker 1: about the nature of the case and the accusations as
• 3:47
  Speaker 1: summarized in the questionnaire that might make it difficult for
• 3:50
  Speaker 1: him to be fair and impartial. He repeated these assurances
• 3:54
  Speaker 1: at oral voir dire. Juror 50 checked the no box
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  Speaker 1: in response to question 48, which asked whether he or
• 4:03
  Speaker 1: a friend or family member had ever been the victim
• 4:06
  Speaker 1: of sexual harassment, sexual abuse, or a sexual assault. He
• 4:10
  Speaker 1: also checked the no box in response to the question
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  Speaker 1: of whether he or any of his relatives or close
• 4:15
  Speaker 1: friends had ever been the victim of a crime. Juror
• 4:19
  Speaker 1: number 50 was seated. Following the verdict, he discussed his
• 4:22
  Speaker 1: experience as a juror during interviews with multiple journalists. During
• 4:26
  Speaker 1: these interviews, juror 50 stated that he was a survivor
• 4:30
  Speaker 1: of childhood sexual abuse, which he did not disclose until
• 4:33
  Speaker 1: high school, and that his experience of sexual abuse was
• 4:36
  Speaker 1: did not affect his ability to view Maxwell as innocent
• 4:39
  Speaker 1: until proven guilty. He also stated that he did not
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  Speaker 1: recall the details of the juror questionnaire, which he flew through,
• 4:46
  Speaker 1: but he believed he answered the questions honestly. 3. The
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  Speaker 1: Hearing Following these reports, the government filed a letter highlighting
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  Speaker 1: juror 50's public statements and requesting that the district court
• 4:58
  Speaker 1: conduct a hearing. After briefing, Judge Nathan ordered a limited
• 5:02
  Speaker 1: hearing focused on Juror 50's potential failure to respond truthfully
• 5:06
  Speaker 1: to the questions during the jury selection process that asked
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  Speaker 1: for the material information. Judge Nathan denied Maxwell's request to
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  Speaker 1: directly question Juror 50, which was committed to her sound discretion,
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  Speaker 1: but permitted the parties to propose questions in advance of
• 5:21
  Speaker 1: the hearing. The parties did so, and Maxwell submitted a
• 5:25
  Speaker 1: letter renewing her request to question Juror 50 directly and
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  Speaker 1: proposing 21 pages of questions on topics including the nature
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  Speaker 1: and length of the juror 50's sexual abuse, the nature
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  Speaker 1: of the sexual abuse experienced by any of juror 50's
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  Speaker 1: family or friends, his own employment responsibilities, the impact of
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  Speaker 1: his sexual abuse on his life and personal relationships, whether
• 5:49
  Speaker 1: juror 50 ever sought mental health counseling or spoke with
• 5:53
  Speaker 1: a therapist, how he came to give media interviews, and
• 5:56
  Speaker 1: whether he was attempting to be viewed as as a
• 5:58
  Speaker 1: champion of victims of sexual abuse. The district court held
• 6:03
  Speaker 1: the hearing on March 8, 2022, at which Juror 50
• 6:07
  Speaker 1: testified under a grant of immunity. Juror 50 testified that
• 6:11
  Speaker 1: his answers to three questions were not accurate. Questions 25,
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  Speaker 1: whether he or a close associate had been a victim
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  Speaker 1: of a crime, 48, whether he or a friend or
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  Speaker 1: a family member had ever been a victim of sexual
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  Speaker 1: harassment or abuse, and 49, whether he or a family
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  Speaker 1: member had been accused of sexual harassment or abuse. He
• 6:31
  Speaker 1: explained that when he was 9 or 10 years old,
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  Speaker 1: he was sexually abused by a stepbrother, who he no
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  Speaker 1: longer considered part of the family, and the stepbrother's friend.
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  Speaker 1: He explained that he answered question 49, no, because he
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  Speaker 1: no longer considered the stepbrother part of his family, although
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  Speaker 1: he should have answered yes. He also acknowledged that he
• 6:50
  Speaker 1: should have answered yes to question 25 because he was
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  Speaker 1: the crime victim, although he read the question at the
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  Speaker 1: time to inquire about robbery, mugging, or similar crimes. Juror
• 7:01
  Speaker 1: 50 also testified that his failure to disclose his experience
• 7:05
  Speaker 1: was an inadvertent mistake. He explained that he completely skimmed
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  Speaker 1: way too fast when completing the questionnaire. He did so,
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  Speaker 1: he explained, in light of the context. He started the
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  Speaker 1: questionnaire after several hours. waiting in security lines, and after
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  Speaker 1: technical issues with the instructions. He was preoccupied with his
• 7:24
  Speaker 1: own recent romantic breakup and with disruptions in the jury room,
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  Speaker 1: and he rushed to complete the questionnaire because he thought
• 7:30
  Speaker 1: it virtually impossible that he would be selected as a
• 7:33
  Speaker 1: juror given the number of people completing the questionnaire. He
• 7:37
  Speaker 1: did not generally think about his personal history of sexual abuse,
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  Speaker 1: and it did not occur to him while carelessly speeding
• 7:43
  Speaker 1: through the questionnaire. At Oral Vordire, juror 50, had not
• 7:47
  Speaker 1: been asked the questions Judge Nathan posed to prospective jurors
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  Speaker 1: who answered affirmatively to questions 25, 48, or 49 and
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  Speaker 1: therefore was not asked questions about sexual abuse. At the hearing,
• 7:59
  Speaker 1: Judge Nathan examined Juror 50 in detail and Juror 50
• 8:03
  Speaker 1: emphasized that his experiences did not affect his ability to
• 8:07
  Speaker 1: be fair and impartial or his ability to fairly assess
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  Speaker 1: the credibility of victim witnesses or his ability to impartially
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  Speaker 1: judge Maxwell's guilt. 4. the district court's decision. Judge Nathan
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  Speaker 1: denied Maxwell's motion for a new trial in a detailed
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  Speaker 1: written opinion. First, Judge Nathan concluded that Juror 50's answers
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  Speaker 1: were not deliberately inaccurate, crediting Juror 50's testimony in light
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  Speaker 1: of his demeanor and consistent logical answers to her questions. Second,
• 8:35
  Speaker 1: Judge Nathan concluded that she would not have granted a
• 8:39
  Speaker 1: four-cause challenge to Juror 50 had he provided accurate information.
• 8:44
  Speaker 1: At the hearing, Judge Nathan As juror 50 the questions,
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  Speaker 1: she asked other jurors who indicated a personal experience with
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  Speaker 1: sexual assault or abuse. She concluded that juror 50's credible
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  Speaker 1: responses to those questions under oath at the hearing established
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  Speaker 1: that he would not have been struck for cause if
• 9:01
  Speaker 1: he had provided accurate responses to the questionnaire. As Judge
• 9:05
  Speaker 1: Nathan explained, other jurors who answered the questions similarly were
• 9:09
  Speaker 1: not even challenged for cause and she would not have
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  Speaker 1: granted a challenge had one been made. She also rejected
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  Speaker 1: the notion that these similarities between Juror 50's life experiences
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  Speaker 1: and the issues at trial required her to excuse Juror
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  Speaker 1: 50 for cause. B. Applicable Law Federal Rule of Criminal
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  Speaker 1: Procedure 33 permits a district court to vacate any judgment
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  Speaker 1: and grant a new trial if the interest of justice
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  Speaker 1: so requires. As this court has explained, the defendant bears
• 9:37
  Speaker 1: the burden of proving that he is entitled to a
• 9:39
  Speaker 1: new trial under Rule 33 and before ordering a new
• 9:43
  Speaker 1: trial pursuant To Rule 33, a district court must find
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  Speaker 1: that there is a real concern that an innocent person
• 9:50
  Speaker 1: may have been convicted. United States v. McCourty, 562 F. 3d, 458, 475,
• 9:53
  Speaker 1: 2nd Circuit, 2009. Post inquiries into juror conduct are strongly disfavored.
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  Speaker 1: Such inquiries seriously disrupt the finality of the process. Tanner v.
• 10:08
  Speaker 1: United States, 483, U.S. 107, 120 and 121, 1987. Permitting
• 10:10
  Speaker 1: post-verdict scrutiny of juror conduct would undermine pillars that undergird
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  Speaker 1: the jury trial right, including full and frank discussions in
• 10:23
  Speaker 1: the jury room, jurors' willingness to return an unpopular verdict,
• 10:27
  Speaker 1: and the community's trust in a system that relies on
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  Speaker 1: the decision of laypeople. Such inquiries may instead lead to
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  Speaker 1: evil consequences, subjecting juries to harassment, inhibiting jury room deliberation,
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  Speaker 1: burdening courts with meritless applications, increasing temptation for jury tampering,
• 10:45
  Speaker 1: and creating uncertainty in jury verdicts. United States v. Ionello, 866, F. 2D 540-543,
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  Speaker 1: 2nd Circuit, 1989. Accordingly, a defendant seeking Rule 33 relief
• 10:59
  Speaker 1: based on alleged juror misrepresentations during voir dire must satisfy
• 11:04
  Speaker 1: a stringent two-part test. First, a party must demonstrate that
• 11:08
  Speaker 1: a juror failed to answer honestly a material question on
• 11:12
  Speaker 1: voir dire. McDonough Power Equipment, Inc., versus Greenwood, 464 U.S., 548, 556, 1984. Second,
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  Speaker 1: the party must show that a correct response would have
• 11:25
  Speaker 1: provided a valid basis for a challenge for cause. To
• 11:29
  Speaker 1: satisfy this prong, a court must determine whether, if the
• 11:32
  Speaker 1: juror had answered truthfully, it would have granted a hypothetical
• 11:35
  Speaker 1: strike for cause. United States v. Stewart, 433 F. 3D, 273, 304,
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  Speaker 1: Second Circuit, 2006. A party may challenge a juror for
• 11:47
  Speaker 1: cause based only on narrowly specified, provable, and legally cognizable basis.
• 11:53
  Speaker 1: United States v. Torres, 128 F. 3d, 3843, 2nd Circuit, 1997.
• 12:01
  Speaker 1: In the context of Vore Dyer, challenges for cause generally
• 12:04
  Speaker 1: fall into one of three limited categories. Actual bias, implied bias,
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  Speaker 1: and inferable bias. Actual bias is bias in fact, the
• 12:14
  Speaker 1: existence of a state of mind that leads to an
• 12:16
  Speaker 1: inference that the person will not act with entire impartiality.
• 12:21
  Speaker 1: Implied bias, also called presumed bias, is a bias conclusively
• 12:25
  Speaker 1: presumed as a matter of law. This court has emphasized
• 12:28
  Speaker 1: that this category is narrow and reserved for exceptional situations,
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  Speaker 1: generally meaning circumstances in which jurors are related to the
• 12:36
  Speaker 1: parties or were victims of the alleged crime itself. ID
• 12:40
  Speaker 1: at 45 and 46. Finally, bias may be inferred when
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  Speaker 1: a juror discloses a fact that bespeaks a risk partiality
• 12:49
  Speaker 1: sufficiently significant to warrant granting the trial judge discretion to
• 12:53
  Speaker 1: excuse the juror for cause, but not so great as
• 12:56
  Speaker 1: to make mandatory a presumption of bias. Where there are
• 13:00
  Speaker 1: concrete allegations of juror misconduct, a court may conduct a
• 13:04
  Speaker 1: post-verdict hearing, see United States v. Baker, 899 F. 3D 123-130,
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  Speaker 1: Second Circuit, 2018. The inquiry should be limited to only
• 13:15
  Speaker 1: what is absolutely necessary to determine the facts with precision. Ionello,
• 13:20
  Speaker 1: 866 F. 2D, at 544. The proper functioning of the jury
• 13:25
  Speaker 1: system requires that the courts protect jurors from being harassed
• 13:29
  Speaker 1: and beset by a defeated party in an effort to
• 13:32
  Speaker 1: secure from them evidence of fact which might establish misconduct
• 13:36
  Speaker 1: sufficient to set aside a verdict. Moten 582 f. 2d at 664. Accordingly,
• 13:45
  Speaker 1: the district court has the power and the duty to
• 13:47
  Speaker 1: supervise and closely control such inquiries. United States v. Calvis
• 13:53
  Speaker 1: 821 f. 2d 887 896 2nd Circuit 1987. For example, the
• 13:59
  Speaker 1: district court may choose to personally conduct the questioning of
• 14:02
  Speaker 1: a juror in order to avoid intruding on the jury's deliberations.
• 14:07
  Speaker 1: CEG Calvis 821 F. 2D at 896. At such a hearing,
• 14:13
  Speaker 1: and with limited exceptions, the juror may not testify about
• 14:17
  Speaker 1: any statement made or incident that occurred during the jury's deliberations.
• 14:22
  Speaker 1: The effect of anything on that juror or another juror's
• 14:25
  Speaker 1: vote or any juror's mental processes concerning the verdict or indictment.
• 14:30
  Speaker 1: The court may not receive a juror's affidavit or evidence
• 14:33
  Speaker 1: of a juror's statement on these matters. FedR Evidence 606B1.
• 14:39
  Speaker 1: This court reviews the denial of a Rule 33 motion
• 14:42
  Speaker 1: for abuse of discretion, United States v. Archer 977, F. 3D 181, 187,
• 14:49
  Speaker 1: 2nd Circuit, 2020. A district court only abuses its discretion
• 14:54
  Speaker 1: if its decision rests on an error of law, such
• 14:57
  Speaker 1: as application of the wrong legal principle or a clearly
• 15:00
  Speaker 1: erroneous factual finding, or its decision cannot be located within
• 15:04
  Speaker 1: the range of permissible decisions. This court has only, on
• 15:09
  Speaker 1: rare occasions, overturned a verdict or remanded for an evidentiary
• 15:13
  Speaker 1: hearing based on the failure of a juror to disclose
• 15:16
  Speaker 1: information during jury selection. All right, we're going to wrap
• 15:20
  Speaker 1: up this episode here. And in the next episode, dealing
• 15:33
  Speaker 1: with the topic, we're going to pick up where we
• 15:35
  Speaker 1: left off, and that's with Part C, the discussion. All
• 15:40
  Speaker 1: of the information that goes with this episode can be
• 15:42
  Speaker 1: found in the description box. What's up, everyone, and welcome
• 15:47
  Speaker 1: back to the program. In this episode, we're getting right
• 15:49
  Speaker 1: back to that brief by the United States government in
• 15:53
  Speaker 1: response to Glenn Maxwell's attempt to appeal her sentence. Part C,
• 15:59
  Speaker 1: the discussion. Judge Nathan conducted a thorough inquiry and determined
• 16:03
  Speaker 1: that Juror 50's inadvertent errors on the jury questionnaire did
• 16:07
  Speaker 1: not undermine Maxwell's right to a fair trial. Maxwell does
• 16:11
  Speaker 1: not meaningfully engage with Judge Nathan's careful opinion, instead suggesting
• 16:15
  Speaker 1: that Juror 50's testimony at the hearing was patently absurd.
• 16:20
  Speaker 1: These conclusory arguments fall short of establishing that Judge Nathan
• 16:24
  Speaker 1: abused her discretion in finding that this case does not
• 16:28
  Speaker 1: present the extraordinary circumstances that justify overturning a jury's verdict
• 16:33
  Speaker 1: based on an error during voir dire. Maxwell's claims fell
• 16:38
  Speaker 1: at the first step of McDonough because Juror 50's errors
• 16:41
  Speaker 1: were inadvertent. Juror 50 testified as much at the hearing,
• 16:45
  Speaker 1: providing a detailed narrative of why his errors were a
• 16:48
  Speaker 1: failure of diligence as he rushed through the questionnaire while distracted.
• 16:53
  Speaker 1: Judge Nathan credited this explanation in light of his demeanor,
• 16:57
  Speaker 1: which she closely observed as he testified, including during his
• 17:01
  Speaker 1: answers to questions he appeared not to expect. She explained
• 17:06
  Speaker 1: that his answers were logical explanations and generally internally consistent.
• 17:11
  Speaker 1: Given in a calm and straightforward manner, Juror 50's explanations
• 17:15
  Speaker 1: were consistent with his sworn statements months earlier at Oral
• 17:19
  Speaker 1: Vore Dyer and his testimony that his sexual abuse history
• 17:27
  Speaker 1: Judge Nathan also noted that Juror 50's answers aligned with
• 17:31
  Speaker 1: his incentives. By testifying under a grant of immunity, he
• 17:34
  Speaker 1: could not be prosecuted for his false answers on the questionnaire,
• 17:38
  Speaker 1: but he could be prosecuted for false testimony at the hearing.
• 17:42
  Speaker 1: and had he hidden his sexual abuse in order to
• 17:44
  Speaker 1: get on the jury, he would not have immediately disclosed
• 17:47
  Speaker 1: it to the media after trial. To the contrary, in
• 17:50
  Speaker 1: one video interview with the media, Juror 50 appears genuinely
• 17:55
  Speaker 1: and completely surprised to learn that the questioner asked about
• 17:58
  Speaker 1: his history of sexual abuse. Maxwell does not directly challenge
• 18:02
  Speaker 1: Judge Nathan's factual findings on this point, much less demonstrate
• 18:06
  Speaker 1: that they are clearly erroneous. Instead, relying on United States v. Langford,
• 18:10
  Speaker 1: 990 F. 2D 6568, Second Circuit, 1993, Maxwell argues that McDonough's
• 18:18
  Speaker 1: first step is satisfied by any falsehood, deliberate or otherwise.
• 18:23
  Speaker 1: This argument misses the mark. This prong requires a showing
• 18:27
  Speaker 1: of deliberate dishonesty by the juror rather than mere honest mistake.
• 18:31
  Speaker 1: This court has explained that, in McDonough, the Supreme Court
• 18:35
  Speaker 1: found that the juror's good faith failure to respond to
• 18:38
  Speaker 1: though mistaken, did not satisfy even the first prong of
• 18:41
  Speaker 1: the test. United States v. Schall, 41 F. 3D, 811, 815,
• 18:47
  Speaker 1: 2nd Circuit, 1994. The defendant in Schall also relied on
• 18:51
  Speaker 1: Langford to contend that a new trial was appropriate, even
• 18:54
  Speaker 1: if he can't establish the juror's dishonesty. This court rejected
• 18:58
  Speaker 1: that argument, concluding that such a contorted reading of Langford
• 19:02
  Speaker 1: is incorrect because it would eliminate the threshold requirement of
• 19:06
  Speaker 1: the McDonough test, Juror dishonesty. And this court concluded that
• 19:11
  Speaker 1: the defendant failed to satisfy the first prong of the
• 19:14
  Speaker 1: test because defense counsel explicitly conceded the good faith of
• 19:18
  Speaker 1: the juror. ID at 816, see United States v. McCoy, 995, F. 3D, 32, 51,
• 19:26
  Speaker 1: 2nd Circuit, 2021. Holding that district court properly recognized the
• 19:31
  Speaker 1: initial question to be explored is whether the juror's nondisclosure
• 19:35
  Speaker 1: was deliberate or inadvertent. Maxwell's claim also fails at the
• 19:40
  Speaker 1: second step of McDonough. The hearing established that Juror 50
• 19:43
  Speaker 1: harbored no bias, approached his jury service with an open mind,
• 19:47
  Speaker 1: and was committed to deciding the case based on the
• 19:49
  Speaker 1: evidence and the district court's legal instructions. As Judge Nathan
• 19:53
  Speaker 1: found Juror 50's credible responses to questions asked of all
• 19:57
  Speaker 1: jurors who indicated prior personal experiences with sexual abuse under
• 20:02
  Speaker 1: oath at the hearing established that he would not have
• 20:04
  Speaker 1: been struck for cause if he had provided accurate responses
• 20:08
  Speaker 1: to the questionnaire. Judge Nathan would have asked Juror 50
• 20:12
  Speaker 1: follow-up questions during Vordire to determine if it would have
• 20:16
  Speaker 1: granted a challenge for cause. Judge Nathan asked those questions
• 20:20
  Speaker 1: at the hearing, and Juror 50's sworn responses made clear
• 20:24
  Speaker 1: that he was a fair and impartial juror who did
• 20:27
  Speaker 1: not harbor any bias and who would not have been
• 20:30
  Speaker 1: excused for cause. Nor was Juror 50 the subject of
• 20:34
  Speaker 1: any bias, actual, implied, or inferred. After assessing Juror 50's demeanor,
• 20:39
  Speaker 1: Judge Nathan found that he repeatedly and credibly affirmed that
• 20:43
  Speaker 1: his personal history of sexual abuse would not affect his
• 20:46
  Speaker 1: ability to serve as a fair and impartial juror in
• 20:49
  Speaker 1: any way, belying any suggestion that he was actually biased
• 20:55
  Speaker 1: against Maxwell. Judge Nathan also correctly rejected Maxwell's central argument
• 21:00
  Speaker 1: that she should imply or infer bias based on the
• 21:04
  Speaker 1: purported similarities between juror 50's personal history and the issues
• 21:08
  Speaker 1: at trial. Judge Nathan explained that she need not imagine
• 21:12
  Speaker 1: a wholly hypothetical universe to reach that conclusion. During Vore Dyer,
• 21:17
  Speaker 1: she asked every follow-up question requested by the defendant with
• 21:20
  Speaker 1: regard to a juror's personal experience with sexual assault, abuse,
• 21:24
  Speaker 1: or harassment. Although for a majority of these eight jurors,
• 21:28
  Speaker 1: the defendant did not propose any follow-up questions. One prospective
• 21:33
  Speaker 1: juror described her own childhood sexual abuse at an age
• 21:36
  Speaker 1: closer to the victims in this case. Another described a
• 21:39
  Speaker 1: friend's recent coercive sexual abuse by a professor. Maxwell did
• 21:44
  Speaker 1: not even bring a four-cause challenge as to either. Similarly,
• 21:48
  Speaker 1: four-cause challenge against Juror 50 would not have prevailed. On appeal,
• 21:53
  Speaker 1: Maxwell contends that had Juror 50 answered the questionnaire accurately,
• 21:57
  Speaker 1: it clearly would have provided a basis for a four-cause challenge.
• 22:01
  Speaker 1: In particular, Maxwell challenges Judge Nathan's finding that Juror 50
• 22:05
  Speaker 1: was credible and unbiased, relying on a few isolated statements
• 22:09
  Speaker 1: drawn from various parts of the hearing's transcript and some
• 22:13
  Speaker 1: from post-verdict statements. As described above, Judge Nathan explained how
• 22:17
  Speaker 1: Juror 50's explanation for his erroneous answers was plausible and consistent,
• 22:23
  Speaker 1: and she found him credible after assessing his demeanor through
• 22:26
  Speaker 1: challenging questioning. She also properly disregarded his post-verdict statements about
• 22:31
  Speaker 1: the case, explaining that a juror's view of a case
• 22:34
  Speaker 1: and defendant would necessarily change after reviewing 13 days of
• 22:39
  Speaker 1: evidence that persuaded 12 jurors of the defendant's guilt. Actual
• 22:43
  Speaker 1: and inferred bias are both committed to the province of
• 22:45
  Speaker 1: the trial judge, and Judge Nathan's findings that neither existed
• 22:49
  Speaker 1: were not clearly erroneous. See Torres 128, F. 3D at 44.
• 22:56
  Speaker 1: A finding of actual bias is based upon determinations of
• 22:59
  Speaker 1: demeanor and credibility and are within a trial judge's provenance.
• 23:04
  Speaker 1: United States v. Greer, 285, F. 3D, 158, 172, Second Circuit, 2002.
• 23:12
  Speaker 1: A finding of inferred bias is, by definition, within the
• 23:15
  Speaker 1: discretion of the trial court. Maxwell also argues that Judge
• 23:19
  Speaker 1: Nathan should have implied bias, highlighting some similarities between Juror
• 23:23
  Speaker 1: 50's sexual abuse and and the sexual abuse discussed at trial.
• 23:27
  Speaker 1: That falls far short of requiring the district court to
• 23:30
  Speaker 1: imply bias. First, as Judge Nathan explained, the law is
• 23:34
  Speaker 1: not that bias must be implied when a juror has
• 23:37
  Speaker 1: a personal experience similar to the issues at trial. Rather,
• 23:41
  Speaker 1: this court has consistently refused to create a set of
• 23:44
  Speaker 1: unreasonably constricting presumptions that jurors be excused for cause and
• 23:49
  Speaker 1: due to certain occupational or other special relationships which might
• 23:53
  Speaker 1: bear directly or indirectly on the circumstances of a given case.
• 23:58
  Speaker 1: This case is not within one of the rare extreme
• 24:01
  Speaker 1: circumstances where a mandatory presumption of bias applies. C. Torres, 128, F. 3D
• 24:06
  Speaker 1: at 45. Greer, 285, F. 3D at 172. Second, although there
• 24:07
  Speaker 1: are some similarities between Juror 50's childhood sexual abuse, there
• 24:10
  Speaker 1: are also differences. Juror 50 was younger than the trial
• 24:21
  Speaker 1: victims at the time of their abuse. He was abused
• 24:24
  Speaker 1: by a family member, and he disclosed his abuse much earlier.
• 24:28
  Speaker 1: And critically, juror 50 credibly testified at the hearing that
• 24:32
  Speaker 1: he was able to put aside his experience of sexual
• 24:34
  Speaker 1: abuse and judge the evidence fairly. This is not the
• 24:38
  Speaker 1: sort of extreme situation that calls for a mandatory removal.
• 24:43
  Speaker 1: More generally, it's entirely appropriate for jurors to rely on
• 24:46
  Speaker 1: their common sense and life experiences to a judge guilt.
• 24:51
  Speaker 1: These very human elements constitute one of the strengths of
• 24:54
  Speaker 1: our jury system, and we cannot and should not excommunicate
• 24:58
  Speaker 1: them from jury deliberations. Quoting United States, Owen v. McMahon, 435, F. 2d, 813, 818,
• 25:04
  Speaker 1: 2nd Circuit, 1970. On these facts, to imply or infer
• 25:12
  Speaker 1: that Juror 50 was biased simply because he was himself
• 25:16
  Speaker 1: a victim of sexual abuse in a trial related to
• 25:18
  Speaker 1: sexual abuse and sex trafficking, and despite his own credible
• 25:22
  Speaker 1: testimony under the penalty of perjury, establishing that he could
• 25:26
  Speaker 1: be an even-handed and impartial juror would be tantamount to
• 25:30
  Speaker 1: concluding that an individual with a history of sexual abuse
• 25:33
  Speaker 1: can never serve as a fair and impartial juror in
• 25:36
  Speaker 1: such a trial. That is not the law, nor should
• 25:39
  Speaker 1: it be. Finally, Maxwell suggests that Judge Nathan abused her
• 25:44
  Speaker 1: discretion by precluding defense counsel from questioning Juror 50 and
• 25:48
  Speaker 1: precluding inquiry into Juror 50's statements to journalists. As to
• 25:52
  Speaker 1: the former, the manner in which the hearing proceeds is
• 25:54
  Speaker 1: committed to a district court's sound discretion, Moten 582 F. 2D
• 25:58
  Speaker 1: at 666, including specifically the extent to which parties may
• 26:05
  Speaker 1: participate in questioning the witnesses, INLO 866 F. 2D at 544.
• 26:12
  Speaker 1: Judge Nathan reasonably decided to lead the questioning herself, with
• 26:16
  Speaker 1: repeated opportunities both before and during the hearing for counsel
• 26:20
  Speaker 1: to suggest questions. And Judge Nathan's decision is reinforced by
• 26:24
  Speaker 1: counsel's request for vexatious, intrusive, unjustified subpoenas. and for questions
• 26:30
  Speaker 1: that swept well beyond Juror 50's ability to be impartial
• 26:33
  Speaker 1: juror and instead probe deeply into other aspects of his life.
• 26:38
  Speaker 1: As to Juror 50's statements to journalists, it is not
• 26:41
  Speaker 1: entirely clear which statements Maxwell thinks should have been part
• 26:44
  Speaker 1: of the hearing. The hearing, of course, covered both the
• 26:47
  Speaker 1: substance of his sexual abuse and the fact of his
• 26:50
  Speaker 1: statements to journalists. See A. 275. asking whether Juror 50 understood
• 26:56
  Speaker 1: from your interviews that the fact that you were abused
• 26:59
  Speaker 1: would be a known fact in the world. It appears
• 27:01
  Speaker 1: that in Maxwell's view, Judge Nathan should have inquired into
• 27:05
  Speaker 1: whether and how his sexual abuse affected the deliberations in
• 27:09
  Speaker 1: the jury room. BR 71, suggesting that Juror 50 operated
• 27:14
  Speaker 1: as an unsworn expert on the subject of traumatic memory.
• 27:18
  Speaker 1: Acknowledging Rule 606B' s prohibition on inquiry into jurors' deliberations and
• 27:23
  Speaker 1: mental process, Maxwell argues at the exception for extraneous prejudicial
• 27:28
  Speaker 1: information that was improperly brought to the jury's attention. FedR
• 27:32
  Speaker 1: Evidence 606 B2A applies here. But Maxwell expressly waived this
• 27:38
  Speaker 1: argument in the district court, explaining that she does not
• 27:41
  Speaker 1: seek to impeach the verdict based on the content of
• 27:43
  Speaker 1: deliberations and need not inquire into the content of deliberations
• 27:48
  Speaker 1: to establish her jury bias claim. And in any event,
• 27:51
  Speaker 1: the exception does not apply because the experiences that jurors
• 27:55
  Speaker 1: are understood to bring with them to the jury room
• 27:58
  Speaker 1: are internal matters that do not constitute extraneous information. Warger v. Shavers,
• 28:06
  Speaker 1: 574 U.S. 40, 51, and 52, 2014, rejecting parties' attempt
• 28:10
  Speaker 1: to use the extraneous information exception to establish that a
• 28:14
  Speaker 1: juror should have been excluded under McDonough based on his
• 28:17
  Speaker 1: personal experiences. All right, we're going to wrap up this
• 28:21
  Speaker 1: episode here. And in the next episode, we're going to
• 28:23
  Speaker 1: pick up with point number four. The district court's response
• 28:26
  Speaker 1: to a jury note did not constructively amend the indictment.
• 28:31
  Speaker 1: All of the information that goes with this episode can
• 28:33
  Speaker 1: be found in the description box. What's up, everyone? And
• 28:37
  Speaker 1: welcome back to the Epstein Chronicles. In this episode, we're
• 28:41
  Speaker 1: going to get right back to the United States government's
• 28:44
  Speaker 1: brief in response to Glenn Maxwell's attempt to appeal their sentence.
• 28:50
  Speaker 1: Point number four. The district court's response to a jury
• 28:54
  Speaker 1: note did not constructively amend the indictment. At all times,
• 28:58
  Speaker 1: the government consistently argued that Maxwell enticed and transported Jane
• 29:02
  Speaker 1: to New York with the intent that Jane engage in
• 29:05
  Speaker 1: illegal sexual activity, and that Maxwell conspired to do so
• 29:09
  Speaker 1: regarding Jane and the other victims. That is the issue
• 29:12
  Speaker 1: Judge Nathan instructed the jury to resolve, and that is
• 29:16
  Speaker 1: the criminal conduct charge in counts three and four of
• 29:19
  Speaker 1: the indictment. Accordingly, no constructive amendment or variance occurred. A.
• 29:25
  Speaker 1: Relevant Facts Count 3 and 4 charged Maxwell with arranging
• 29:29
  Speaker 1: for Jane's transportation to New York with the intent that
• 29:32
  Speaker 1: Jane would engage in sex acts with Epstein in violation
• 29:36
  Speaker 1: of New York state law, and with a conspiracy to
• 29:38
  Speaker 1: transport minors to New York for the same purpose. At trial,
• 29:42
  Speaker 1: the government marshaled evidence that Maxwell transported Jane to New
• 29:46
  Speaker 1: York and aided and abetted Epstein in doing so, with
• 29:49
  Speaker 1: the intent that Jane engage in sexual activity there. That
• 29:53
  Speaker 1: evidence included detailed testimony from Jane about Epstein's New York residence.
• 29:58
  Speaker 1: and specific sexual acts that took place in New York
• 30:01
  Speaker 1: while Jane was a minor. The government's summation similarly discussed
• 30:06
  Speaker 1: these charges as encompassing conduct directed at New York. As
• 30:10
  Speaker 1: to count four, the government argued the evidence showed Jane
• 30:14
  Speaker 1: was transported to New York and Maxwell was involved in
• 30:17
  Speaker 1: making travel arrangements. The government also clarified that the crime
• 30:21
  Speaker 1: happened the moment Maxwell, Epstein, and Jane crossed state lines.
• 30:25
  Speaker 1: And to be very clear, when Epstein flew Jane to
• 30:28
  Speaker 1: New York and Maxwell aided and abetted him, that's enough too.
• 30:32
  Speaker 1: For the conspiracy counts, the government referenced its earlier discussion
• 30:36
  Speaker 1: of the elements of the substantive offenses, and the government
• 30:40
  Speaker 1: argued that even though Carolyn and Annie were not sexually
• 30:43
  Speaker 1: abused in New York, that it was Maxwell and Epstein,
• 30:46
  Speaker 1: they both intended it, CTR 2895-96 arguing that Maxwell groomed
• 30:52
  Speaker 1: Annie for abuse after she had already visited Epstein in
• 30:56
  Speaker 1: New York. The district court's jury instructions also permitted the
• 31:00
  Speaker 1: jury to determine only whether Maxwell had intended that Jane,
• 31:04
  Speaker 1: for the substantive counts or the conspiracy victims, engage in
• 31:08
  Speaker 1: sexual activity in New York. During trial, Judge Nathan granted
• 31:12
  Speaker 1: defense requests for limiting instructions at the time evidence came
• 31:17
  Speaker 1: in to make clear that the charges focused on the
• 31:20
  Speaker 1: intent that sexual activity take place in New York. At
• 31:24
  Speaker 1: the conclusion of trial, Judge Nathan instructed the jury that
• 31:28
  Speaker 1: count for alleged that Maxwell knowingly transported Jane with the
• 31:31
  Speaker 1: intent that Jane. with the intent that Jane engage in
• 31:35
  Speaker 1: sexual activity for which any person can be charged with
• 31:38
  Speaker 1: a criminal offense in violation of New York law. Judge
• 31:43
  Speaker 1: Nathan also instructed the jury on one and only one
• 31:46
  Speaker 1: predicate state offense, a violation of New York Penal Law
• 31:50
  Speaker 1: Section 130.55. The instructions on Count 3 incorporated this discussion further.
• 31:56
  Speaker 1: of the elements of Count 4 and the only statute
• 31:59
  Speaker 1: identified was New York Penal Law Section 130.55. During deliberations,
• 32:05
  Speaker 1: the jury sent the following note. Under Count 4, if
• 32:09
  Speaker 1: the defendant aided in the transportation of Jane's return flight,
• 32:13
  Speaker 1: but not the flight to New Mexico, where if the
• 32:15
  Speaker 1: intent was for Jane to engage in sexual activity, can
• 32:19
  Speaker 1: she be found guilty under the second element? The note
• 32:22
  Speaker 1: led to a lengthy discussion at the conclusion of which
• 32:25
  Speaker 1: Judge Nathan determined she should refer the jury back to
• 32:28
  Speaker 1: the jury charge on the second element of count four
• 32:31
  Speaker 1: because the jury note was otherwise too difficult to parse
• 32:34
  Speaker 1: factually and legally. That night, Maxwell filed a letter. seeking
• 32:39
  Speaker 1: reconsideration of Judge Nathan's response and raising the possibility of
• 32:44
  Speaker 1: a constructive amendment or prejudicial variance because, in her view,
• 32:48
  Speaker 1: the notes showed that the jury might convict, based on
• 32:51
  Speaker 1: Jane's testimony, that she was abused in New Mexico. Maxwell
• 32:55
  Speaker 1: asked Judge Nathan to instruct the jury as to the
• 32:58
  Speaker 1: intent elements of counts two and four and to add
• 33:01
  Speaker 1: that an intent that Jane engage in sexual activity in
• 33:05
  Speaker 1: any other state would then New York cannot form the
• 33:07
  Speaker 1: basis for these two element counts 2 and 4. Judge
• 33:11
  Speaker 1: Nathan rejected Maxwell's request, both because the jury did not
• 33:15
  Speaker 1: inquire about count 2 and because the final sentence as
• 33:19
  Speaker 1: just wrong in suggesting that the intent that Jane engage
• 33:22
  Speaker 1: in sexual activity outside of New York may have no relevance.
• 33:26
  Speaker 1: As Judge Nathan explained, this is the same discussion we've
• 33:30
  Speaker 1: had a couple of times. Sexual activity with respect to
• 33:33
  Speaker 1: Jane in New Mexico under the age of 17 can
• 33:36
  Speaker 1: be relevant to intent to transport to New York to
• 33:39
  Speaker 1: engage in sexual activity under the age of 17. Judge
• 33:43
  Speaker 1: Nathan repeated that she did not know how to parse
• 33:46
  Speaker 1: the jury's question exactly, but that her instruction directing the
• 33:50
  Speaker 1: jury to the original charge included a reminder that it's
• 33:53
  Speaker 1: a violation of New York penal law that's charged and
• 33:56
  Speaker 1: is the illegal sexual activity that they're considering. Judge Nathan
• 34:00
  Speaker 1: also pointed out that Maxwell did not seek to exclude
• 34:03
  Speaker 1: Jane's testimony about New Mexico or seek a limiting instruction
• 34:08
  Speaker 1: with respect to that testimony. Judge Nathan added, I have
• 34:11
  Speaker 1: no idea if that's what the jury is asking or
• 34:14
  Speaker 1: many other plausible readings, noted that the defense had proposed
• 34:18
  Speaker 1: an incorrect instruction and concluded no more was required than
• 34:22
  Speaker 1: sending the jury back to the charge. B. Applicable Law
• 34:27
  Speaker 1: A constructive amendment occurs when the charge upon which the
• 34:30
  Speaker 1: defendant is tried differs significantly from the charge upon which
• 34:34
  Speaker 1: the grand jury voted. United States v. Kolofsky, 5F. F4, 279-293,
• 34:41
  Speaker 1: 2nd Circuit, 2021. Not every alteration of an indictment, however,
• 34:46
  Speaker 1: rises to the level of a constructive amendment. United States v. Dove, 884-F.3D, 138-146,
• 34:50
  Speaker 1: 2nd Circuit, 2018. Instead, to prevail... On a constructive amendment claim,
• 35:00
  Speaker 1: a defendant must demonstrate that the terms of an indictment
• 35:03
  Speaker 1: are in effect altered by the presentation of evidence and
• 35:06
  Speaker 1: jury instructions which so modify essential elements of the offense
• 35:11
  Speaker 1: that there is a substantial likelihood that the defendant may
• 35:14
  Speaker 1: have been convicted on an offense other than that charged
• 35:18
  Speaker 1: in the indictment. This court has consistently permitted significant flexibility
• 35:31
  Speaker 1: in proof, provided that the defendant was given notice of
• 35:34
  Speaker 1: the core of criminality to be proven at trial. United
• 35:39
  Speaker 1: States v. Lebedev, 932 F. 3D 4053 Second Circuit, 2019 The
• 35:47
  Speaker 1: core of criminality is the essence of a crime, in
• 35:50
  Speaker 1: general terms, but not the particulars of how a defendant
• 35:53
  Speaker 1: affected the crime. D'Amelio 693 F. 3d at 418. There is
• 35:59
  Speaker 1: no constructive amendment where the allegations in the indictment and
• 36:03
  Speaker 1: the proof at trial both relate to a single set
• 36:05
  Speaker 1: of discrete facts or form part of a single course
• 36:09
  Speaker 1: of conduct with the same ultimate purpose. I.D. at 419
• 36:14
  Speaker 1: through 421. A variance occurs when the charging terms of
• 36:18
  Speaker 1: the indictment are left unaltered, but the evidence offered at
• 36:21
  Speaker 1: trial proves facts materially different from those alleged in the indictment.
• 36:25
  Speaker 1: Reversal due to a variance is appropriate only when the
• 36:27
  Speaker 1: defendant can establish that substantial... Prejudice occurred at trial as
• 36:42
  Speaker 1: a result of the variance, a showing that cannot be
• 36:45
  Speaker 1: made where the pleading and the proof substantially correspond, where
• 36:49
  Speaker 1: the variance is not of a character that could have
• 36:52
  Speaker 1: misled the defendant at trial, and where the variance is
• 36:55
  Speaker 1: not such as to deprive the accused of the right
• 36:58
  Speaker 1: to be protected against another prosecution for the same offense. Kalupski, 5F. 4th
• 37:04
  Speaker 1: at 294 So long as the defendant receives notice of
• 37:09
  Speaker 1: the government's theory, the defendant cannot show prejudice. CEG Banky 685, F. 3D
• 37:16
  Speaker 1: at 119. This court reviews claims of constructed amendment and
• 37:21
  Speaker 1: prejudicial variants De Novo, Dove 884, F. 3D at 146 and 149.
• 37:24
  Speaker 1: Part C. The Discussion There is no likelihood, much less
• 37:33
  Speaker 1: a substantial likelihood, that the jury convicted Maxwell solely because
• 37:37
  Speaker 1: Jane was transported to New Mexico. At no point during
• 37:41
  Speaker 1: the trial, including its summation, did the government argue that
• 37:44
  Speaker 1: the jury could convict on a theory that Maxwell intended
• 37:47
  Speaker 1: Jane to be abused in New Mexico. Similarly, the district
• 37:51
  Speaker 1: court's charge required the jury to decide whether Maxwell intended
• 37:55
  Speaker 1: to violate New York law. The trial contained no instructions
• 37:59
  Speaker 1: describing for the jury Maxwell's argument to the contrary rests
• 38:11
  Speaker 1: entirely on her reading of the jury's note. According to Maxwell,
• 38:15
  Speaker 1: the note shows that the jury decided that there was
• 38:18
  Speaker 1: no corroborating evidence that Maxwell was present for or helped
• 38:21
  Speaker 1: arrange any of Jane's trips to New York, but that
• 38:25
  Speaker 1: the flight logs did corroborate that Maxwell was present for
• 38:28
  Speaker 1: Jane's trip to New Mexico. This reading, she claims, is
• 38:31
  Speaker 1: buttressed by the fact that the jury acquitted on count two, which,
• 38:35
  Speaker 1: in her telling, shows that the jury determined that the
• 38:38
  Speaker 1: only corroborating evidence linking Maxwell to the New Mexico trip
• 38:41
  Speaker 1: was a flight log showing that she was present on
• 38:44
  Speaker 1: the trip, but said nothing about whether she persuaded, induced, enticed,
• 38:48
  Speaker 1: or coerced Jane to take the trip. Judge Nathan correctly
• 38:52
  Speaker 1: rejected this argument. Judge Nathan found that the original jury
• 38:56
  Speaker 1: instructions and the government summation captured the core of criminality
• 39:00
  Speaker 1: charged in the indictment, focusing specifically on conduct directed at
• 39:04
  Speaker 1: a sexual activity in New York. Even if the note
• 39:08
  Speaker 1: revealed that the jury were confused and wondered whether it
• 39:11
  Speaker 1: could convict based on conduct in New Mexico, Judge Nathan's
• 39:14
  Speaker 1: response eased that confusion. As Judge Nathan explained, she sent
• 39:18
  Speaker 1: the jury back to the instruction, which accurately instructed that
• 39:22
  Speaker 1: count four had to be predicated on finding a violation
• 39:25
  Speaker 1: of New York law. That was sufficient. See United States
• 39:28
  Speaker 1: versus Ramy. 108, 126, 2nd Circuit, 2007. Court enjoys considerable
• 39:37
  Speaker 1: discretion in framing a response to a jury note and
• 39:40
  Speaker 1: is only required to answer the particular inquiries posed. As
• 39:44
  Speaker 1: Judge Nathan explained, Maxwell failed to propose a better response, requesting... Instead,
• 39:50
  Speaker 1: a series of instructions that were unresponsive, redundant, and legally inaccurate.
• 39:55
  Speaker 1: See Rami 506 F. 3D at 126. Judge Nathan's response to
• 40:01
  Speaker 1: the jury note was sound and did not constructively amend
• 40:04
  Speaker 1: the indictment. All right, folks, we're going to wrap up
• 40:07
  Speaker 1: right there. And in the next episode, we're going to
• 40:09
  Speaker 1: pick up with Maxwell's contrary views rest on extensive speculation.
• 40:14
  Speaker 1: All of the information that goes with this episode can
• 40:17
  Speaker 1: be found on in the description box. What's up, everyone,
• 40:21
  Speaker 1: and welcome back to the Epstein Chronicles. In this episode,
• 40:25
  Speaker 1: we're picking right back up where we left off with
• 40:27
  Speaker 1: the United States government's brief in response to Glenn Maxwell's
• 40:31
  Speaker 1: attempt to appeal her sentence. Maxwell's contrary view rests on
• 40:36
  Speaker 1: extensive speculation about which flights and evidence the jury was
• 40:41
  Speaker 1: referencing in the note. The trial included, among other evidence,
• 40:44
  Speaker 1: testimony by Jane and about taking numerous flights both on
• 40:48
  Speaker 1: Epstein's private planes and on commercial carriers. Maxwell ignores that evidence,
• 40:54
  Speaker 1: focusing on a specific trip referenced in the flight logs.
• 40:57
  Speaker 1: Even if Maxwell correctly identified the flight at issue, it
• 41:01
  Speaker 1: still betrayed no jury confusion. The origin of that trip
• 41:04
  Speaker 1: was New York, and the jury's focus was on the
• 41:07
  Speaker 1: return flight, which it could have inferred was a flight
• 41:10
  Speaker 1: to New York where Maxwell intended Jane to engage in
• 41:13
  Speaker 1: sexual activity. Her view also rests on adopting one specific
• 41:18
  Speaker 1: reading of a note that, as Judge Nathan explained, was
• 41:21
  Speaker 1: decidedly ambiguous as to the precise legal questioning being asked.
• 41:26
  Speaker 1: See Romney, 506F. 3d, at 126. District Court enjoys considerable discretion
• 41:34
  Speaker 1: in construing the scope of a jury inquiry. Maxwell herself
• 41:38
  Speaker 1: initially understood the note to be about aiding and abetting liability.
• 41:43
  Speaker 1: and whether sexual activity was a sufficiently significant or motivating
• 41:47
  Speaker 1: purpose for the travel. See United States v. Kim, 471F,
• 41:52
  Speaker 1: Appendix 82, 84, 2nd Circuit, 2012. Affirming jury instructions that
• 41:59
  Speaker 1: prostitution must be a significant or motivating purpose of the
• 42:03
  Speaker 1: interstate transportation. Maxwell only came to the theory. She now
• 42:07
  Speaker 1: advances after a lengthy discussion spanning 10 pages of the transcript.
• 42:12
  Speaker 1: and that reading is far from clear. The jury's question
• 42:15
  Speaker 1: does not ask whether certain facts are sufficient for guilt.
• 42:19
  Speaker 1: It asks whether Maxwell can be found guilty if a
• 42:21
  Speaker 1: certain fact is true. Maxwell can be found guilty based
• 42:25
  Speaker 1: in part on sexual activity occurring in New Mexico, which
• 42:29
  Speaker 1: is probative of Maxwell's intent and role in transporting Jane.
• 42:33
  Speaker 1: That is a perfectly sensible question for the jury to ask. Indeed,
• 42:37
  Speaker 1: it was repeatedly raised by defense counsel to Judge Nathan
• 42:41
  Speaker 1: at trial. Setting aside the jury note, Maxwell's positions require
• 42:46
  Speaker 1: the jury to have reached a series of odd conclusions.
• 42:49
  Speaker 1: Jane testified at length about her travel to New York
• 42:53
  Speaker 1: and the ensuing sexual abuse there. It would make little
• 42:56
  Speaker 1: sense for the jury to reject that testimony and then
• 42:59
  Speaker 1: conclude that Maxwell arranged the unidentified commercial return Flight Maxwell
• 43:04
  Speaker 1: now emphasizes, for which there is no documentary evidence in
• 43:08
  Speaker 1: the record, including no specific corroboration of Maxwell's role in
• 43:12
  Speaker 1: arranging that flight. Compare BR 79 and 80. The jury
• 43:16
  Speaker 1: likely believed that if they found Maxwell had some role
• 43:20
  Speaker 1: in arranging Jane's return flight from New Mexico after the
• 43:23
  Speaker 1: sexual abuse had already taken place, they could convict her
• 43:27
  Speaker 1: on the transportation count. With TR 3133, defense argument that
• 43:33
  Speaker 1: there is no evidence Maxwell arranged a return flight from
• 43:36
  Speaker 1: New Mexico. Maxwell suggests that the jury thought the flight
• 43:40
  Speaker 1: records to be critical evidence, but the flight logs also
• 43:43
  Speaker 1: demonstrate that Jane was flown to New York on Epstein's
• 43:46
  Speaker 1: private jet, corroborating her testimony on that point. See BR79,
• 43:51
  Speaker 1: citing GX662-R at 44. The same is true regarding Maxwell's
• 43:57
  Speaker 1: comparison of counts 2 and 4. In Maxwell's view, the
• 44:01
  Speaker 1: jury rejected nearly all of the evidence of Maxwell's enticement
• 44:04
  Speaker 1: of Jane to New York for lack of corroboration, and
• 44:07
  Speaker 1: then convicted her based on an unsupported speculative leap about
• 44:12
  Speaker 1: rearranging an unidentified return flight from New Mexico. That is
• 44:16
  Speaker 1: not plausible, and it certainly is not a substantially likely
• 44:20
  Speaker 1: conclusion that can be drawn from an inscrutable jury note.
• 44:24
  Speaker 1: For similar reasons, no variance occurred. As discussed above, the
• 44:28
  Speaker 1: proof at trial corresponded to the allegations in the indictment,
• 44:32
  Speaker 1: namely evidenced an argument that Maxwell enticed and transported Jane
• 44:36
  Speaker 1: and to New York in order to facilitate sexual abuse there.
• 44:41
  Speaker 1: Maxwell has also aware that the government's proof would include
• 44:44
  Speaker 1: conduct in New Mexico. Maxwell, therefore, had fair, adequate notice
• 44:49
  Speaker 1: that the conspiracies included conduct at Epstein's New Mexico home,
• 44:54
  Speaker 1: which is all that is required. United States v. Solomonese,
• 44:57
  Speaker 1: 352 F. 3D, 608-622, 2nd Circuit, 2003. In any event, the government...
• 45:05
  Speaker 1: produced on November 6, 2021, more than three weeks before trial,
• 45:10
  Speaker 1: notes from an interview with Jane describing sexual abuse in
• 45:13
  Speaker 1: New Mexico. That is sufficient. See Lebdewev, 932F. 3D at 54,
• 45:20
  Speaker 1: rejecting a prejudiced argument, in part because the government disclosed
• 45:24
  Speaker 1: the evidence and exhibits four weeks prior to trial. Point
• 45:28
  Speaker 1: number five. The sentence was procedurally reasonable. A. Applicable law.
• 45:33
  Speaker 1: A district court. commits procedural error if, among other things,
• 45:37
  Speaker 1: it makes a mistake in its guidelines, calculation, or fails
• 45:41
  Speaker 1: adequately to explain its chosen sentence. United States v. Kavara,
• 45:45
  Speaker 1: 550 F. 3d, 180, 190, 2nd Circuit, 2008. This court reviews
• 45:52
  Speaker 1: a district court's application of the guidelines de novo, while
• 45:55
  Speaker 1: factual determinations underlying a district court's guidelines, calculations, are reviewed
• 46:01
  Speaker 1: for clear error. United States v. Kramer, 777, F. 3D, 597, 601,
• 46:07
  Speaker 1: 2nd Circuit, 2015. In explaining the sentence, the district court
• 46:12
  Speaker 1: must show that it has considered the party's arguments and
• 46:15
  Speaker 1: that it has reasoned basis for exercising its own legal
• 46:18
  Speaker 1: decision-making authority. Cavera, 550, F. 3D, at 193. B. The Discussion
• 46:27
  Speaker 1: Maxwell argues that the district court erred by applying a
• 46:30
  Speaker 1: four-level leadership enhancement, under 3b1. 1 of the sentencing guidelines. That
• 46:36
  Speaker 1: enhancement applies when a defendant was an organizer or leader
• 46:40
  Speaker 1: of a criminal activity that was otherwise extensive, which must
• 46:44
  Speaker 1: include the defendant's leadership of at least one other criminal participant,
• 46:48
  Speaker 1: USSG Section 3b1. 1 and CMT No. 2. Maxwell contests only
• 46:55
  Speaker 1: whether the evidence showed that she led another criminal participant.
• 47:00
  Speaker 1: On that point, Judge Nathan found that Maxwell led Sarah Kellan.
• 47:04
  Speaker 1: Two witnesses, both pilots for Epstein, testified that Kellan was
• 47:08
  Speaker 1: Maxwell's assistant. Judge Nathan found that testimony credible, in part
• 47:12
  Speaker 1: because it was corroborated by other testimony that Maxwell was
• 47:16
  Speaker 1: Epstein's number two and the lady of the house. In
• 47:19
  Speaker 1: Palm Beach, where much of the abuse occurred and where
• 47:22
  Speaker 1: Kellan worked, the trial evidence showed that Kellan scheduled sexualized
• 47:26
  Speaker 1: massages and took nude photographs of Kellan Even after Kellan
• 47:30
  Speaker 1: took over some of Maxwell's duties, Maxwell continued to manage
• 47:33
  Speaker 1: her by virtue of her position in the house, a
• 47:37
  Speaker 1: fact corroborated by a household manual directing staff to tend
• 47:41
  Speaker 1: to the specific needs of Epstein, Maxwell, and their other guests,
• 47:44
  Speaker 1: as well as flight records showing that Maxwell and Kellan
• 47:47
  Speaker 1: flew together on Epstein's planes dozens of times. The clear
• 47:51
  Speaker 1: inference from this record is that Maxwell instructed Kellan regarding
• 47:55
  Speaker 1: how to schedule massages and and run part of the
• 47:58
  Speaker 1: scheme that Maxwell was previously handled, at which point Kellan
• 48:02
  Speaker 1: switched to making phone calls to schedule appointments following Maxwell's directions.
• 48:07
  Speaker 1: Maxwell argues that Judge Nathan erred because a defense witness
• 48:11
  Speaker 1: testified that she, rather than Kellan, was Maxwell's assistant. That
• 48:15
  Speaker 1: uncorroborated testimony is not enough to render Judge Nathan's finding
• 48:20
  Speaker 1: clearly erroneous. Moreover, what matters is whether Maxwell exercised supervisory
• 48:26
  Speaker 1: authority over Kellan, not whether Kellan or another individual was
• 48:30
  Speaker 1: formerly Maxwell's assistant. Maxwell also argues that when imposing the
• 48:35
  Speaker 1: 240-month sentence, which was above the guidelines, range of 188
• 48:39
  Speaker 1: to 235 months imprisonment, Judge Nathan then failed to provide
• 48:44
  Speaker 1: reasons for its upward variance. Maxwell's one-sentence argument is so
• 48:48
  Speaker 1: cursory and undeveloped that it should be deemed waived. See
• 48:52
  Speaker 1: United States v. Bodie, 711 F. 3D 299 313 2nd Circuit 2013.
• 48:58
  Speaker 1: It is settled appellate rule that issues adverted to in
• 49:04
  Speaker 1: a perfunctory manner, unaccompanied by some sort at developed argumentation,
• 49:09
  Speaker 1: are deemed waived. In any event, Judge Nathan engaged in
• 49:13
  Speaker 1: a lengthy discussion of the sentencing factors when imposing sentence,
• 49:17
  Speaker 1: including Maxwell's pivotal role in heinous and predatory sexual abuse
• 49:21
  Speaker 1: of minor girls. In describing the seriousness of the offense,
• 49:25
  Speaker 1: Judge Nathan found that Maxwell's crimes to be both extensive
• 49:29
  Speaker 1: and far-reaching, and concluded that the damage done to these
• 49:32
  Speaker 1: young girls was incalculable as a result of the painful, horrific,
• 49:37
  Speaker 1: and lasting impact of the trauma that they endured. After
• 49:40
  Speaker 1: an extensive discussion of Maxwell's horrifying crimes, Judge Nathan explained
• 49:45
  Speaker 1: that this conduct demands a substantial sentence that meets the
• 49:49
  Speaker 1: scope of the conduct and the scope of the harm,
• 49:52
  Speaker 1: and that the sentence must send an unmistakable message of
• 49:55
  Speaker 1: general deterrence to those who engage in and facilitate the
• 49:59
  Speaker 1: sexual abuse and trafficking of underage victims, that nobody is
• 50:04
  Speaker 1: above the law. Accordingly, Judge Nathan concluded that a very serious,
• 50:09
  Speaker 1: a very significant sentence is necessary to achieve the purposes
• 50:12
  Speaker 1: of punishment under U.S. Code 18, Section 3553A, SA 462.
• 50:19
  Speaker 1: This discussion belies any claim that Judge Nathan inadequately explained
• 50:24
  Speaker 1: the sentence. Conclusion. The judgment of conviction should be affirmed.
• 50:29
  Speaker 1: Dated June 29, 2023, and this was signed by Damian Williams.
• 50:35
  Speaker 1: All right, so that concludes the United States government's brief
• 50:39
  Speaker 1: in response to Maxwell trying to get that appeal. And
• 50:43
  Speaker 1: as you can tell from this brief, the United States
• 50:46
  Speaker 1: government is not convinced and they shouldn't be. Maxwell had
• 50:50
  Speaker 1: a fair trial. She was found guilty. Now she needs
• 50:53
  Speaker 1: to sit in prison and rot. And when all is
• 50:56
  Speaker 1: said and done with this process of her appealing, my
• 50:58
  Speaker 1: guess is that's exactly what's going to occur. But until then,
• 51:03
  Speaker 1: we'll continue our journey through the dark-ass disgusting sewers known
• 51:07
  Speaker 1: as Jeffrey Epstein's Criminal Enterprise. All of the information that
• 51:11
  Speaker 1: goes with this episode can be found in the description box.