Case Document Filed Page of UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK UNITED STATES OF AMERICA GHISLAINE MAXWELL Defendant Cr AJN REPLY MEMORANDUM OF LAW IN SUPPORT OF MS MAXWELLS MOTION TO DISMISS COUNTS FIVE AND SIX OF THE SUPERSEDING INDICTMENT BECAUSE THE ALLEGED MISSTATEMENTS ARE NOT PERJURIOUS AS A MATTER OF LAW Jeffrey Pagliuca Laura A Menninge HADDO MORGA FOREMA P.C East 10th A enue er CO Phone Chris ian Everdell COHEN GRES SER LLP Third A enue York NY Phone:21 Bobbi Sternheim aw Offices of Bobbi ernheim West 19th Street Floor New York NY Phone Atto rn ey for Gh i slain axw ll i TABLE TA3B-2LE O4F6 C-2ON4TE-7NT3S i TA3B-2LE O4F6 ii TA3B-2LE O4F6 i I The5 De6f-6a4mat ion Ac4ti-3on II The5 Que6sti-4ons W3e-5re7 9F6un-9da4menta4ll-3y a4nd F-3a4tally Ambi-3guous I The5 Que6sti-4ons a3nd Answ-6e4rs W6e-5re7 e4rtific4a4te of5 S-3e-5rvic5e Case Document Filed Page of ii TABLE Case5s Bronst-2on v4 United States U.S Giuff-3re3 v4 M3ax4w-2e4ll S-3upp 3d United States v5 Bonac5or-10sa C-2ir United States v5 Bonds F6 S-3upp 2d C-2a4l United States v5 C-2hujoy F6 S-3upp 3d V4a4 United States v5 C-2icale4se F6 S-3upp 2d United States v5 Earp 4th Ci-3r United States v5 Edli-2nd C-4i United States v5 L-3andau F6 S-3upp United States v5 L-3ight-3e4 United States v5 L-3it-3v4ak C-2ir United States v5 M3anapat-11 United Stat-3e4s v3 N-2ae4ge4le United States v5 Re5v-5e4ron 10M3arti-4ne4z C-5ir United States v5 Rue5dli-3ng-9e4r F6 S-3upp Ka6n Rul-3e4s F6e4d C-2iv 6b Case Document Filed Page of i TABLE O-7rde7r 6De6nyin-11g Mot-2ion t-3o Joi-2n Unde6r Rule Doe6 v4 United St-9ates No C-2iv Ma3rr6a4/John-2son F6la A4pr Moti-4on fo3r J-7oinder5 Doe6 v4 9United States No C-2iv M-10a4rr6a4/John-2son S.D F6la Ja5n R-2oss Gow E3mail re5 state3ment on be4h-9a4lf of4 Ghisl-2a4ine Ma5x-9we6ll-13 da4ted Ja5n Case Document Filed Page of Case Document Filed Page of The government misunderstands both the law and the facts related to the Giuffre Maxwell defamation litigation Although the government aspires to present a more streamlined presentation at trial Resp fn it is unlikely to meet this goal What follows is a very truncated discussion of some of the facts to place the questions and answers in Ms Maxwells depositions from that civil action in context I The Defamation Action In two alleged Epstein victims brought an action under the Crime Victims Rights Act CVRA against the United States government purporting to challenge Epsteins plea agreement They alleged the government violated their CVRA rights by entering into the agreement Seven years later on December Ms Giuffre moved to join the CVRA action claiming she too had her CVRA rights violated by the government On January Ms Giuffre filed a corrected joinder motion The issue presented in her joinder motion was narrow whether she should be permitted to join the CVRA action as a party under Federal Rule of Civil Procedure specifically whether she was a known victim of Mr Epstein and the Government owed them CVRA duties Ex at Yet the court noted the bulk of the motion consists of copious factual details that Giuffre and her co-movant would pro if allowed to join Id brackets omitted Ms Giu fre gratuitously included pro ocative and lurid details of her alleged se ual activities as an alleged ictim of se ual tra ficking Id At the time the filed the motion Ms Giuffre and her la wy ers knew that the media had been following the Epstein crimin a case and the CVRA action While they deliberately filed the motion ithout disclosing Ms Giuffre name claiming the need fo pri ac and secrec the made no attempt to file the motion under seal Quite the contrary the filed the motion publicl As the district court noted in ruling on the joinder motion Ms Giuffre name several Case Document Filed Page of individuals and she offers details about the type of sex acts performed and where they took place Ex Lat The court ruled the lurid details are unnecessary The factual details regarding whom and where the Jane Does engaged in sexual activities are immaterial and impertinent especially considering that these details involve non-parties who are not related to the respondent Government Id Accordingly these unnecessary details shall be stricken Id The court then struck all Ms Giuffres factual allegations relating to her alleged sexual activities and her allegations of misconduct by non-parties Id at The court said the striking of the lurid details was a sanction for Ms Giuffres improper inclusion of them in her motion See id at The district court found not only that the lurid details were unnecessary but also that the entire oinder motion was entirely unnecessary Id at Ms Giuffre and her lawyers knew the motion with all its lurid details was unnecessary because as the court pointed out the motion itself recognized that she would be able to participate as a fact witness to achieve the same result she sought as a party ee id at ee also id at noting that in the motion Ms Giuffre lawyers said that regardless of whe her this Court grants the Motion they will call her as a witness at any trial The court denied Giuffresjoinder motion Id at One of the non-parties Ms Giuffre named repeatedly in the joinder motion was Ms Maxwell Ex at According the lurid details Ms Giuffre included in the motion Ms Maxwell personall was invol ed in a se ual abuse and sex trafficking scheme created by Epstein Ms Maxwell approached Giuffre in when Giuffre was fifteen ears old to recruit her into the scheme Id at Ms Maxwell was one of the main women Epstein used to procure under-aged girls for sexual activities Id Ms Maxwell was a primary co-conspirator ith Epstein in his scheme Id Case Document Filed Page of She persuaded Giuffre to go to Epsteins mansion in a fashion very similar to the manner in which Epstein and his other co-conspirators coerced do ze ns of other children Id Ms Maxwell appreciated the immunity she acquired under Epsteins plea agreement because the immunity protected her from prosecution for the crimes she committed in Florida Id Ms Maxwell assist ed in internationally trafficking Giuffre and numerous other young girls for sexual purposes Id Giuffre was forced to watch Epstein Ms Maxwell and others engage in illegal sexual acts with dozens of underage girls Id In the joinder motion Giuffre also alleged she was forced to have sex with Harvard law professor Alan Dershowit model scout Jean Luc Brunel and many other powerful men including numerous prominent American politicians powerful business executi es foreign presidents a well-known Prime Minister and other world leaders Id at Giuffre said after serving for four years as a ex slave she managed to escape to a foreign country and hide out from Epstein and his co-conspirators for years Id at Giuffre suggested the government was part of Epstein conspiracy when it ecretl negotiated a non-prosecution agreement with Epstein precluding federal prosecution of Epstein and his co-conspirators Id at The governments secrec Giuffre alleged wa motivated its fear that Giuffre would raise powerful objections to the agreement that would have hed tremendous public light on Epstein and other powerful individuals Id at As Giuffre and her lawyers pected before District Jud Marra in the CVRA action could strike the lurid details of Giuffre allegations in the joinder motion members of the media obtained copies of the motion printed the lurid details in tabloid news publications and sou ht comment from Ms axw ell Professor Dersho wi and others On January UK la wy ers for Ms axw ell sent represen tativ es of British media organi za tions an email containin a quotable statement on behalf of Ms Maxwell The email Case Document Filed Page of was sent to more than and probably less than media representatives The email to the media members read Ex.N To Whom It May Concern Please find attached a quotable statement on behalf of Ms Maxwell No further communication will be provided by her on this matter Thanks for your understanding Best Ross Ross Gow ACUITY Reputation Jane Doe is Virginia Roberts-so not a new individual The allegations made by Victoria Roberts against Ghislaine Maxwell are untrue The original allegations are not new and have been fully responded to and shown to be untrue Each time the story is re told sic it changes with new salacious details about public figures and world leaders and now it is alleged by Ms Roberts sic that Alan Derschowitz sic is involved in having sexual relations with her which he denies Ms Roberts claims are obvious lies and should be treated as such and not publicised as news as they are defamatory Ghislaine Maxwells original response to the lies and defamatory claims remains the same Maxwell strongly denies allegations of an unsavoury nature which ha appeared in the British press and elsewhere and reserves her right to seek redress at the repetition of such old defamatory claims Eight years after Epstein guilty plea Giuffre brought the defamation action repeating many of the allegations she made in her CVRAjoinder motion The complaint alleged that the January statement contained the follo ing deliberate falsehood a That Giuffre sworn allegations against Ghislaine Maxwell are untrue That the allegations have been shown to be untrue That Giuffre claims are obvious lies Case Document Filed Page of The defamation litigation was legally very complicated and New York law afforded many statutory common law and constitutional defenses to Ms Maxwell which may become relevant at another time In addition to strong legal defenses Ms Maxwells defense of truth was exceptional It was clear that given the wording of Mr Gow statement proof of falsity of one or more of Giuffres claims would be enough to defeat the civil action Very quickly there were many provable obvious lies A few examples Contrary to her claim of slavery Giuffre lived independently from her parents with her fiance lon before meeting Epstein or Ms Maxwell and held a number of jobs in and Giuffres employment at the Mar-a-Lago spa began in fall when she was not This falsity was important to Giuffres story for many reasons Palm Beach Police investigation revealed no evidence that Ms Maxwell was involved in sexual abuse of minors sexual trafficking or production or possession of child pornography No nude photograph of Giuffre was displayed in Epsteins home Giuffre tales about foreign presidents and prime ministers were untrue All of the famous people Giuffre claimed to have been sexually trafficked to denied these claims which were completely implausible Importantly Giuffre post-dates the allegations contained in the superseding indictment Indictme nt by three years her claims and admissions she did not meet Epstein until lon after the accusers named in the Indictment Her strong connection with these accusers developed through her awyers who likel represent at le ast two of the accusers and some of the witnesses Virtua ll every issue in the defamation action was contested A review of the docket unfortunately reflects over one-thousand entries The parties disagreed about the scope and meaning of virtually all of Judge Sweets discover orders including those related to Ms Maxwell depositions Significantly Judge Sweets Order prefaced a ll the listed categories with the words sexual acti it an sexual acti ities Case Document Filed Page As expected both depositions were hostile The questions posed to Ms Maxwell were poorly phrased without regard to the rules of evidence Accordingly counsel for Ms Maxwell was required to object many times As this court knows civil litigants are limited to three types of objections form foundation and privilege When those objections are posed the examiner has the opportunity to ask for the basis of the objection It is not incumbent indeed it is no permitted for the objecting lawyer to expound on the basis for the objection unless asked Virtually all of the questions that form the basis of Counts Five and Six were the subject of valid objections A prerequisite to use of deposition testimony at trial is that the testimony must be admissible under the Federal Rules of Evidence as if the deponent were present and testifying Fed Civ The form and foundation of the questions asked were improper and largely not relevant in the context of the defamation action It is unlikely hat an of the answers would have been admitted at any trial II The Questions Were Fundamentally and Fatally Ambiguous In addition to being poorly phrased the questions were unquestionably ambiguous When a line of questioning is so vague as to be fundamentally ambiguous the answers associated with the questions posed may be insufficient as a matter of law to support a perjury conviction United States Lighte 2d 2d Cir se also Unit States Bonacorsa F.2d 2d Cir Precise questioning is imperative as a predicate for the offense of perjury Bronston Unit Stat U.S A question is fundamentally ambiguous when it is not a phrase with a meaning about which men of ordinary intellect could agree nor one which could be used with mutual understanding by a questioner and answerer unless it were defined at the time it were sought and offered as testimony Light F.2d at cleaned up Here the questions were fundamentally ambiguous containing particular undefined terms scheme and recruit for example Case Document Filed Page The government complains that Ms Maxwell has not cited any cases where a perjury count was dismissed pretrial for fundamental ambiguity Resp Of course the government must know that myriad examples exist United States Cicalese Supp 2d is instructive Succinctly the prosecutor did not fulfill her obligation to pin the witness down to the specific object of her inquiry Bronston U.S at Any number of straightforward follow-up questions could have clarified the object of inquiry For example in addition to the attempt question mentioned earlier the government could have cured the ambiguity by supplying the date time or location of the target meeting focusing Cicaleses attention on the specific events at issue See Razzaia Supp at Left naked the governments imprecise question did not meet the standard set in Bronston It cannot provide a jury with a sufficient basis to reasonably conclude that Cicalese willfully lied by answering as he did Id at Asking simple follow-up questions could have resolved the imprecision and fulfilled the governments obligation under Bron ton Whether by strategy or inadvertence the government did not do so The Court granted Cicaleses motion to dismiss the charges against him Id at Similarly in Un ited States Landau Supp S.D N.Y the court dismissed a perjury indictment holding the context of all th pr eced ing qu estions and Landaus grand jury testimony as a whole the prosecutors questions here are fundamentally ambiguous and cannot as a matter of law to support a perjury conviction Landaus motion is therefore granted and the indictment is dismissed Id at emphasis added The same is true here In the context of the questions preceding the selectively quoted testimony in Counts Five and Six and the transcripts as a whole the selected questions were fundamentally ambiguous In Un it ed States Manapat 2d 11th the Ele enth Circuit affirmed an acquittal on the grounds of fundamental ambiguity as a result of the content of the form that was the basis of the prosecution There the defendant applied for an Airman Medical Certificate to the Federal A iation Administration The application included a section entitled Medical History th a contained twenty-four questions re gar din conditions The first twenty Case Document Filed Page one conditions questions were all medical in nature The twenty-second and twenty-third questions however inquired about convictions one about traffic convictions the other about other convictions Manapat answered in the negative to both ques ion tw en ty two and question twenty-three and these answers became the basis for his prosecu ion for knowingly and willfully making false statements any department or agency of the Un it ed tat es In affirming the district courts decision to dismiss he indictmen the Eleventh Circui sta ed Although the sing statements Record of traffic convic ions or Record other convictions may not be ambiguous standing alone they become qui confusing when buried in a list headed Medical History and purportedly concerned with medical conditions In order successfully prosecute an indictmen for making a false statement the government must no remove ques ions from the con ex in which their answers were given in an attempt prove their clarity Id at Also helpful is United States Chujoy Supp 3d Va affd sub nom United States Ed/ind 3d 4th Cir and affd Appx Cir where the court dismissed mul ti perjury and alse statement claims holding Moreover it is no perjurious for the defendant to give an evasive answer a broadly-worded quest i on so long as her response was not false ee nit Stat veron Martin ez 2d 1st Cir In order to sus ain a perjury charge evasions are not enough The government mus show more than that the interdicted statement was unresponsive or guarded At a bare minimum he remark must ha been literally false nit Stat arp 2d 4th Cir The burden is on he questioner to pin the witness down to he specific objec of the questioners inquiry nit St a Naege B.R In the context of per ury charges based on ad ersarial questioning it is not the declarants burden to provide candid answers Accordingly the government failed to offer sufficient evidence that Edlinds fir st two answers-that she had dinner with Kwiatkowski in April-were false reasonable juror could conclude otherwise In nit Stat Ru dling Supp Kan the court after carefully re iewing the allegations found that the perjury charge must be dismissed The Case Document Filed Page court held that the ambiguity of both questions rendered the answers insufficient as a matter of law to support a perjury conviction The courts holding is equally applicable here Precise questioning is imperative as a predicate for the offense of perjury A perjury conviction cannot be based upon evasive answers or even upon misleading answers so long as they are literally true In the face of evasion or misleading answers it is the lawyers duty to bring the witness back to the mark to flush out the whole truth with the tools of adversary examination When a line of questioning is so vague as to be fundamentally ambiguous the answers associated with the questions posed may be insufficient as a matter of law to support a perjury conviction cleaned up And finally although there are more in Unit State Bond Supp 2d Cal the court ruled that using the terms anything like in connection with a perjury prosecution in a professional baseball steroid investigation created a serious problem The government argued similar to the claims here that in context this phrase refers to anything like steroids that could have led to a positive steroid test According to the court the use of the qualifier made the question fundamentally ambiguous requiring dismissal of the count The government at page of its Response incorrectly suggests that the burden was on Ms Maxwell or her counsel to clarify the confused questions particularl regardin the in fi ni time span First that is simply wrong The questioner has the responsibilit to a sk clear questions and to pin down the witness i ca Supp It is the government not Ms Maxwell who is enga in in post-hoc defini ions about undefined terms scheme and interact with Count Five and about the presence of certain items or Epsteins possession of items used in activities her awareness of what Epstein was doin when she wasn with him in a millennium and i ing a massa Count Si Bec a use the questions were so bad the go ernment pends significant ener gy trying to ration a li hat the questioner meant The answers to the bad ambiguous objectionable questions were also literall true Bronst nit Stat U.S make clear that an indi idu a cannot be Case Document Filed Page convicted of perjury for an answer given under oath that is literally true even if it is unresponsive and intended to mislead The Court noted that the burden is on the questioner to pin the witness down to the specific object of the questioners inquiry Id at The answers to the questions in Counts Five and Six are literally true as discussed in detail in Ms Maxwells moving brief I The Questions and Answers Were Immaterial The government is confusing arguable relevance and materialit which are not synonymous Unit States Litvak 3d 2d Cir It is not enough that an alleged misrepresentation concern a variable that mattered to the recipient of the information The government must prove that alleged misstatements were capable of influencing a decision of the intended recipient Id It remains unclear how the go ernment will argue this issue However the questions were improper and could not have produced admissible evidence for a jury to consider There was nothing influenced on the part of the questioners who would not have accepted any answer from Ms Maxwell as true Mo eover the questions were not calculated lead to discoverable evidence CONCLUSION The Court has the necessary transcripts to decide this issue in Ms Maxwell favor pretrial Accordingly Ms Maxwell requests that the Court dismiss Counts Five and Six Dated March e4 spe3 c4 tfully-2 subm-2 it-3 ted J4 e4 ff-3 re3 y4 Pagli-2 uc4 a Je3 ff6 e4 a4 gli-3 uc4 a La5 ura7 A e4 nninger HA4 DD4 ON4 MORG-9 AN4 F4 OREMAN3 Ea5 st Ave6 nue De6 nve4 CO hone4 hristi-3 a4 Eve5 rde7 ll OH4 EN3 GR-2 ES-2 ER L9 LP Third A4 ve4 nue4 Ne6 Y4 ork NY4 hone4 obbi ter5 nhe4 im La5 O4 fic5 e4 of Bobbi-2 ter5 nhe4 im W4 e4 st tre5 e4 F6 loor Ne6 Y4 ork NY4 hone4 Attor-3 ne4 y4 for-3 Ghisl-2 aine M5 ax4 e4 ll Case Document Filed Page Case Document Filed Page Certificate of Service I hereby certify that on March I served by email pursuant Rule of the Courts individual practices in criminal cases the pl mo andum of 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