UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ann x UNITED STATES OF AMERICA, : y 20 Cr. 330 (AJN) GHISLAINE MAXWELL, Defendant. x MEMORANDUM OF GHISLAINE MAXWELL IN SUPPORT OF HER MOTION UNDER THE FOURTH AMENDMENT, MARTINDELL, AND THE FIFTH AMENDMENT TO SUPPRESS ALL EVIDENCE OBTAINED FROM THE GOVERNMENT’S SUBPOENA TO, AND TO DISMISS COUNTS FIVE AND SIX Jeffrey S. Pagliuca Laura A. Menninger HADDON, MORGAN & FOREMAN P.C. Denver, CO 80203 Mark S. Cohen Christian R. Everdell COHEN & GRESSER LLP Tork y 9 Bobbi C. Sternheim New York Ny LUUL) Attorneys for Ghislaine Maxwell EFTA00015303

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TABLE OF CONTENTS TABLE OF CONTENTS ......cccccccccccsscsecsecseseesecseseesecsecsecsesscsecseeecsecseesecsecsesseeeeecsecseesceseecaseases i TABLE OF AUTHORITIES .......c.ccccccccsecseceeseesesscsecsecsesesseseeseescsecseesecsessesseeesecsecseescesenseeseess ii FACTUAL BACKGROUND ....c..cccccccccscessecsecscescescsseessessecsecsesscoecoecousessecseesenseascouceacesseeseesees 1 ARGUMENT ..0..cccccceccscceccecsceecescesessesssessecsecsescascsaseuseasecsecsesscascouceusesseesecsenseascoucescesseeseesees 2 I. The government’s violation of the Fourth Amendment requires suppression. ...........00004 2 A. The subpoena violated the Fourth Amendment because it was unconstitutionally OVEPDTOAM. ooo. ee ee ecee eee eeeeeeeeseeeeeeeseeseeeeesesseseesessesseseesesseseeasseseeseeeesseseeseeeeseeseeeeeeeseseeeeeenee 4 B. The government’s subpoena iii was an unconstitutional warrantless Fourth Amendment Search, ..........ccccccccsesessssesesssssesesssseseensesseessesesesuesseeseeusessesensesenenenseseeeeesesseses 6 1. The third-party doctrine does not compel a different result. .......00ccccceeeeeeeeeeeeee 8 C. The government’s subpoena A. an unconstitutional Fourth Amendment SCiZUTe. ...........cccccececeseeeeeseeeeceesesseeseeceeeeecsescecsseescecsessecseseseeseeeceeececeseseeesesess 11 Il. The government’s violation of Martindell requires suppression. .........0c0cccccsceseesseeseeeeeee 11 Ill. The government’s violation of the Fifth Amendment requires suppression. ............0000000 15 COnClUSION 00... ...ceccescsesseeseeceeseeceeceescescsesssesscecsesaescuecesscessscstseescseseuaescaeessesaeecieeeescoaeeneteeeees 17 Certificate Of Service ..icccccccccccesceececseeeeseeseeeesecsecseeseeseseeeseeesesseessessesesesaeeaeenseeseeesnseeueeae 18 i EFTA00015304

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TABLE OF AUTHORITIES Cases Boyd v United States, 116 U.S. 616 (1886) ...ccccccccccccceeeeeeeeeeeeeeeseeeeeeeeeeseeaeeeeeeseseeeaeeneease 3,6, 15 Carpenter v. United States, 138 S. Ct. 2206 (2018) .occcccccccccccceceeeeeeeeeeeeeeeeeeeeeeeeseeeeeeenes 3,5,6,9 Colorado v. Bannister, 449 U.S. 1 (A980) ....cccccceccccccccceeeceeeceeeeceeeceeeeeeeeeeeeeceeesseseeeesseeesseseesssseesee 3 DeMassa v. Nunez, 770 F.2d 1505 (9th Cir. 1985)......00.cccccccccececcceeceeeeeeeeeeeeeeeeeeeeeeeeeeeeeseeeeeeeeeees 10 Doe v. Broderick, 225 F.3d 440 (4th Cir. 2000) ......00.0cccccccccccceeecceeeceeeeeeeeseeeeseeeeseeeeeeeeeeeeeeeees 10, 13 Fisher v. United States, 425 U.S. 391 (1976) ......c.c.ccccccccccccecsceseeeeesceecesceseeeeceseeeseeseeseeeessesseeses 3,15 Hale v. Henkel, 201 U.S. 43 (1906) ......cccccccccccccceccceecceeeeceecceeeeceececeeeceeeseeecceeceeseceeeeseeecceeeeeeeeeeeee 2.4 In re Grand Jury Subpoena Duces Tecum, 945 F.2d 1221 (2d Cir. 1991) .occcececceececeeeeeeeeeeeee 14 In re Grand Jury Subpoena, JK-15-029, 828 F.3d 1083 (9th Cir. 2016) w..cccccce cee 4,5, 11 Katz v. United States, 389 U.S. 347 (1967) wocccccccccccccccccccceccccceeeccceeececeeeeeceeeecceceesceeeeeesssseeeesssese 2.6 Murphy v. Waterfront Comm'n of New York Harbor, 378 U.S. 52 (1964) w.cccccccecceeeeeeeeeeeeeeeee 2 Palmieri v. State of New York, 779 F.2d 861 (2d Cir. 1985) .o.cccccccccceceeeeeeeeeeeeeeeteeeeeeeeeeeeeeeee 14 People v. Gutierrez, 222 P.3d 925 (Colo. 2009) ...ccccccccecceccceeeeteeeeeeeeeeeeaeeeeeeeseeeeseeseeeeeeeeseneeeees 10 People v. Mason, 989 P.2d 757 (Colo. 1999) .oocccccccccceeeeeeeeeeeeeceseeeeeeeeeeeeeseeeeeeeeseeesesaeseseneeseees 8 Smith v. Maryland, 442 U.S. 735, 740 (1979) oo.ccccccccccccccceeceeeseeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeseseeee passim United States v. Calandra, 414 U.S. 338 (1974) .occcccccccccccccceeccceeeceececeeeceeeceeeeeeeesceecseeesceeeeseseeeesees 6 United States v. Di Re, 332 U.S. 581 (1948) o.ccccccccceccccceceecceeceeceeceeceseseseeeeseeaeeeeceeesessesssessesseees 6 United States v. Dionisio, 410 U.S. 1 (1973) ...cccccccccccccceccceecceecceeecceeecceecceeeeceecceeccesseceeeseeesseeesee 2.15 United States v. Miller, 425 U.S. 435 (1976). .......0.ccccccccccccceeeeeseceeeeeeeeceseeceseeeseeeeseeeseseeessensee 9.10 United States v. Oshatz, 700 F. Supp. 696 (S.D.N.Y. 1988) .....c.cccccceeeeceeeeeeeceeeeeeeeeeeeceeeeneeeeeeeee 16 United States v. Place, 462 U.S. 696 (1983) ..cccccccccccccccecsccccescececsecccesescceceeeecesseeeceeeeecsseeessseseeeseses 3 United States v. Thomas, 736 F.3d 54 (Ast Cir. 2013) .o.ccccccccccccccccececeeeeeeeeeeeeeeeeceeeeeeeeeeeeeeeeeeeeuee 6 EFTA00015305

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Constitutional Provisions ULS. CONST. amend. TV ooo. ccccccccccecceecceeeeeeeeeececesseececsesecesseseeececeeeseeseeececeeaeeececeeeececeeeeees passim ULS. CONST. amend. Voi... ccccccccccceceeeceeeeeeceeeeececeeseeeeeeeseecesseaseecesseeeseeeseeceseeuseeeeeeeeceeeeeeees passim iii EFTA00015306

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Ghislaine Maxwell moves under the Fourth Amendment, Martindell v. Int'l Tel. & Tel. Corp., 594 F.2d 291 (2d Cir. 1979), and the Fifth Amendment, to suppress all evidence the government obtained from a grand jury subpoena it issued .:: to dismiss Counts Five and Six, which are the fruits of that unlawful subpoena. FACTUAL BACKGROUND Ms. Maxwell’s Motion under the Due Process Clause to Suppress and Dismiss Counts 5 and 6 sets forth the facts relevant to this motion. Ms. Maxwell incorporates those facts by reference here. In summary, the government obtained file, including heii PF by way of a grand jury subpoena enforced through an ex parte Pe Although the government claimed not to know what was in a and ha had no role in instigating the investigation of Maxwell, both of these representations fT ere false. In turn, the government i (ii _ in nel PO See Motion under the Due Process Clause to Suppress and Dismiss Counts 5 and 6, Ex. C, at 3. The government could have been, but was not, more targeted in its approach. The government has not provided Maxwell with a copy of the subpoena, but the record shows that the subpoena was incredibly broad and, as explained below, ultimately unlawful. The subpoena violated the Fourth Amendment because it was overbroad and because it effected a warrantless search and seizure of material in which Maxwell had a reasonable expectation of privacy. Moreover, by securing a modification of the Protective Order through a secret, ex parte proceeding, the government violated Martindell v. Int'l Tel. & Tel. Corp., 594 EFTA00015307

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F.2d 291 (2d Cir. 1979), which required the government to give Maxwell notice and an opportunity to be heard on its request. And in bypassing Martindell and eviscerating the guarantee of confidentiality provided by the Protective Order, the government trampled on Maxwell’s Fifth Amendment privilege against self-incrimination, which she declined to invoke in reliance on the protections afforded her by Martindell and the Protective Order. This Court should (1) suppress all evidence the government obtained rom and any other evidence derived therefrom; or (2) suppress the April and July 2016 depositions and all evidence derived therefrom; and (3) dismiss Counts Five and Six. ARGUMENT I. The government’s violation of the Fourth Amendment requires suppression. The Fourth Amendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. The “Fourth Amendment provides protection against a grand jury subpoena poo duces tecum too sweeping in its terms ‘to be regarded as reasonable.’” United States v. Dionisio, 410 U.S. 1, 11-12 (1973) (quoting Hale v. Henkel, 201 U.S. 43, 76 (1906), abrogated in part on other grounds by Murphy v. Waterfront Comm'n of New York Harbor, 378 U.S. 52, 68 (1964)). The government engages in a “search” for Fourth Amendment purposes when its conduct encroaches on an individual’s legitimate expectation of privacy. See Katz v. United States, 389 U.S. 347, 351 (1967) (“[T]he Fourth Amendment protects people, not places.”). Absent an exception to the warrant requirement, a governmental search is unconstitutional unless the government conducts it under a warrant issued based on probable cause to believe a crime has been committed and that evidence of the crime is likely to be found in the place searched. EFTA00015308

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Carpenter v. United States, 138 §. Ct. 2206, 2213 (2018) (holding that an “official intrusion into [the] private sphere generally qualifies as a search and requires a warrant supported by probable cause”). “[A] compulsory production of . . . private books and papers . . . is the equivalent of a search and seizure—and an unreasonable search and seizure—within the meaning of the fourth amendment.” Boyd v United States, 116 U.S. 616, 634-35 (1886), overruling in part on other grounds as recognized in Fisher v. United States, 425 U.S. 391, 407-08 (1976). Finally, “The Fourth Amendment protects ‘effects’ as well as people from unreasonable searches and seizures.” United States v. Place, 462 U.S. 696, 716 (1983) (Brennan, J. concurring). It thus “protects two different interests of the citizen—the interest in retaining possession of property and the interest in maintaining personal privacy.” Jd. (cleaned up). “A seizure threatens the former, a search the latter.” /d. Like a search, a seizure is “per se unreasonable within the meaning of the Fourth Amendment unless it is accomplished pursuant to a judicial warrant issued upon probable cause and particularly describing the items to be seized.” Id. at 701; see Colorado v. Bannister, 449 U.S. 1, 3 (1980). Here, the grand jury subpoena was unconstitutionally overbroad because it sought production fir file and was therefore akin to a general warrant. Moreover, there is no dispute the government did not establish probable cause to believe hat | file contained evidence of a crime. PO ee | OY Nor is there a dispute that the government lacked a warrant. Fo ee Pd Since the government had neither probable cause nor a warrant, heii must be suppressed because the subpoena ol EFTA00015309

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| | was in fact a Fourth Amendment search. And even if the government's conduct did not amount to a search, it constituted a seizure, which likewise should have been supported by probable cause and warrant. A. The subpoena violated the Fourth Amendment because it was unconstitutionally overbroad. The subpoena iii was unconstitutionally overbroad, and this Court should suppress all evidence produced in response. “[A]n order for the production of books and papers may constitute an unreasonable search and seizure within the 4th Amendment.” Hale, 201 U.S. at 76. Because the Fourth Amendment was drafted with a particular eye to the abuse of general warrants, id. at 71, a subpoena that is “unreasonably overbroad” effects an unreasonable search under the Fourth Amendment, Jn re Grand Jury Subpoena, JK-15-029, 828 F.3d 1083, 1088 (9th Cir. 2016). An overbroad subpoena is “equally indefensible as a search warrant would be if couched in similar terms.” /d. (quoting Hale, 201 U.S. at 77). A subpoena is overbroad when the government fails to make a “reasonable effort to request only those documents that are relevant and non- privileged, consistent with the extent of its knowledge about the matter under investigation.” Jd. Here, the government by its own admission made no effort—must less a reasonable effort—to tailor and target the subpoena cM As the prosecutor said ol EFTA00015310

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See Motion under the Due Process Clause to Suppress and Dismiss Counts 5 and 6, Ex. D, at 17 (emphasis added). The government's representations to PF were, of course, false. The government met with fore it issued the subpoena, it knew what was in nevertheless disclaimed any ability to narrowly tailor any subpoena. Given “its knowledge about the matter under investigation,” the government’s failure to make any effort, much less a “reasonable effort,” to request “only those documents that are relevant and non-privileged,” renders the subpoena overbroad and unconstitutional. See In re Grand Jury Subpoena, JK-15- 029, 828 F.3d at 1088. So overbroad was the subpoena ha i actually produced to the government It is obvious why the Fourth Amendment requires suppression /d. at 1089. This type of overbroad subpoena is exactly what the Fourth Amendment is designed to prohibit: searches that invade “the privacies of life” from “arbitrary” power and “police surveillance” that is “too permeating.” See Carpenter, 138 S. Ct. at 2213 (quoting Smith v. Maryland, 442 U.S. 735, 740 (1979)). Otherwise, “when the government seeks all material of a broad generic type that a party possesses—every piece of paper in a corporation’s files, for example, or, as in this case,” every piece of paper in A file, “a reasonable possibility that some of that material would be relevant would suffice to validate the subpoena, no matter how vast its sweep, and no matter the wn EFTA00015311

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degree to which the subpoena would reach private material of no pertinence to the grand jury’s inquiry.” See In re Grand Jury Subpoena, JK-15-029, 828 F.3d at 1089. The Fourth Amendment does not allow such a sweeping search, which would be nothing but a modern-day general warrant. /d. at 1088.' This Court should suppress all evidence the government obtained from the subpoena 7 B. The government’s subpoena of as an unconstitutional warrantless Fourth Amendment search. Apart from its overbreadth, the subpoena violated the Fourth Amendment because it amounted to a warrantless search without probable cause. The Fourth Amendment protects people, not places. Katz, 389 U.S. at 351. Thus, “when an individual ‘seeks to preserve something as private,’ and [her] expectation of privacy is ‘one that society is prepared to recognize as reasonable,’ . . . that official intrusion into that private sphere generally qualifies as a search and requires a warrant supported by probable cause.” Carpenter, 138 §. Ct. at 2213 (quoting Smith, 442 U.S. at 740). This definition of a what constitutes a “search” “seeks to secure ‘the privacies of life’ against ‘arbitrary power’” and “to place obstacles in the way of a too permeating police surveillance.” /d. at 2214 (quoting Boyd, 116 U.S. at 630; United States v. Di Re, 332 U.S. 581, 595 (1948)). A “grand jury is. . . ‘without power to invade a legitimate privacy interest protected by the Fourth Amendment.”” United States v. Thomas, 736 F.3d 54, 61 (1st Cir. 2013) (quoting United States v. Calandra, 414 U.S. 338, 346 (1974)). 'Tt is for this reason that this Court should grant Maxwell’s Motion for Discovery of every grand jury subpoena. Without being able to examine the grand jury subpoenas, Maxwell cannot evaluate whether other subpoenas issued _by the grand jury in connection with this case are unconstitutionally overbroad, as the subpoena — is. EFTA00015312

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Maxwell had a legitimate expectation of privacy in (ili! because she reasonably sought to preserve them as private. Both of _ ii were confidential under the Protective Order, which prohibited om sharing them with third parties, including law enforcement. The Protective Order deliberately excluded a law enforcement exception. While the Protective Order did not apply to evidence produced at trial, the parties settled the defamation action before trial, conclusively establishing the privacy of Maxwell’s deposition testimony. Indeed, under the plain terms of the Protective Order, ies were required to return or destroy all confidential information at the conclusion of the case, including Maxwell’s deposition transcripts refused to do so although ordered to do so by Judge Sweet.* In its application to a. the governmen {a ee ee PY Not only did the government misunderstand how the Protective Order worked, but its argument also supports rather than undermines Maxwell's legitimate expectation of privacy in her deposition transcripts. To be sure, the Protective Order did not apply to evidence produced at trial. That is entirely unremarkable, however, because trials are open to the public and the press. What matters is that the civil case did not go to trial; it settled before trial, and under the Protective Order’s ? Not to mention all the other material she designated as “Confidential” under the Protective Order. * Ascribing a legitimate expectation of privacy i TE: ::. fits Martindell’s admonition that the government may not “insinuate itself into a private civil lawsuit between others.” 594 F.2d at 294. EFTA00015313

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including Maxwell’ end not to share Confidential information with law enforcement ia Motion under the Due Process Clause to Suppress and Dismiss Counts 5 and 6, Ex. F, at 11 (emphases in original). Maxwell thus had a reasonable expectation of privacy in iii and everything else she designated as “Confidential” under the Protective Order.’ Obtaining that confidential material by subpoena therefore amounted to a search under the Fourth Amendment. Because the government had neither probable cause nor a warrant, this Court should suppress the ae: all material Maxwell designated as Confidential. 1. The third-party doctrine does not compel a different result. It is irrelevant that Maxwell’ {iE cre in the possession of f | and not her own attorneys. The third-party doctrine does not apply here because * This argument adheres to Martindell’s holding that the government there should have either moved to intervene or issued a subpoena to obtain the . For one thing, the Fourth Amendment was not at issue in Martindell, so the Court had no occasion to decide whether a warrant might have been required. For another, Martindell does not speak to what showing would have been required for the issuance of a subpoena, probable cause or something less. Even if a warrant weren't required here, a showing of probable cause was. See People v. Mason, 989 P.2d 757, 760 (Colo. 1999) (noting jurisdictions that recognize an expectation of privacy in subpoenaed materials and that require a subpoena duces tecum of such records to be supported by probable cause). Finally, of course, the government didn’t comply with Martindell because it never gave Maxwell notice and an opportunity to quash the subpoena and to challenge the government's misrepresentations through the adversary process. EFTA00015314

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Maxwell did not voluntarily share anything with joe because every other circumstance supported Maxwell’s expectation that iii would be private. The Supreme Court has held that “a person has no legitimate expectation of privacy in information [she] voluntarily turns over to third parties.” Smith, 442 U.S. at 743-44. “That remains true ‘even if the information is revealed on the assumption that it will be used only for a limited purpose.’” Carpenter, 138 S. Ct. at 2216 (quoting United States v. Miller, 425 U.S. 435, 443 (1976)). In Smith v. Maryland, the Court ruled that the government’s use of a pen register—a device used by telephone companies to record the outgoing phone numbers dialed on a landline telephone—was not a search. By placing calls from his landline, the Court reasoned, Smith “voluntarily conveyed” the dialed numbers to the telephone company by “expos[ing] that information to its equipment in the ordinary course of business.” 442 U.S. at 744. The Court held that Smith has “assumed the risk” that the telephone company’s records “would be divulged to police.” Jd. at 745. Similarly, in United States v. Miller, the Court ruled that the government could subpoena an individual’s bank records, including several months of canceled checks, deposit slips, and monthly statements. The Court explained that because the checks were “not confidential communications but negotiable instruments to be used in commercial transactions,” and because the bank statements contained information “exposed to [bank] employees in the ordinary course of business,” Miller had only a limited expectation of privacy. 425 U.S. at 442. The Court determined that Miller had “take[n] the risk, in revealing his affairs to another, that the information [would] be conveyed by that person to the Government.” /d. at 443. EFTA00015315

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Neither Miller nor Smith supports a conclusion that Maxwell had anything but a legitimate and reasonable expectation of privacy in (iii First, Maxwell did not “voluntarily convey’ i .. her, not the other way around. Moreover, Maxwell declined to an: ii ee EN onc of this was voluntary. Second, Maxwell’s expectation of privacy in iii is not limited in the way Miller’s expectation of privacy was limited in his bank records. To the contrary, both Maxwell’ Sa were confidential under the Protective Order. And while the Protective Order did not apply to evidence produced at trial, the case settled before trial, thereby confirming Maxwell’s legitimate expectation that iii . ould not be shared outside the attorneys working in the case and, if necessary, the district court. Third, Maxwell reasonably understood that the Re ou not be shared with the government fm proposed a law enforcement exception to the Protective Order’s confidentiality requirement, but Maxwell rejected the exception and the district court never adopted it. Unlike in Smith and Miller, Maxwell did not “assume the risk” that her Po would be divulged to the government. Had the government obtained iii from Maxwell’s attorneys, there would be no question that the government’s conduct would constitute a Fourth Amendment search. “[C]lients of an attorney maintain a legitimate expectation of privacy in their client files.” DeMassa v. Nunez, 770 F.2d 1505, 1506 (9th Cir. 1985); see Doe v. Broderick, 225 F.3d 440, 450-52 (4th Cir. 2000) (holding that detective’s examination of a patient file held by a methadone clinic was a search and, without probable cause, violated the patient’s Fourth 10 EFTA00015316

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Amendment rights); see also People v. Gutierrez, 222 P.3d 925, 936 (Colo. 2009) (concluding that a taxpayer has a reasonable expectation of privacy in information conveyed to his tax preparer because “state and federal laws . . . shield a taxpayer's return from unfettered access by government officials”). Because she did not voluntarily a 060UUté<‘CSC‘*@ and because she reasonably believed EE was and would remain private under the Protective Order, Maxwell had a legitimate and reasonable expectation of privacy in her Ee <: though the government obtained them from a third party other than her attorneys. See In re Grand Jury Subpoena, JK-15-029, 828 F.3d at 1090 (“DAS’s current possession of [Kitzhaber’s] emails does not vitiate that claim. The Fourth Amendment protects people, not places. Kitzhaber’s interests therefore attach to the things seized, not merely to the place where they are located.” (cleaned up)). C. The government’s subpoena of as an unconstitutional Fourth Amendment seizure. Although Fourth Amendment challenges typically involve “the subsequent search of the container rather than to its initial seizure by the authorities, . . . a seizure of personal property is per se unreasonable” under the “Fourth Amendment unless it is accomplished pursuant to a judicial warrant issued upon probable cause and particularly describing the items to be seized.” Smith, 462 U.S. at 701-02. Here, the ovnun ili itt PO The government did not obtain a warrant, nor did it establish probable cause for the seizure. For this additional reason, this Court should suppress the Po and all material Maxwell designated as confidential. Il. The government’s violation of Martindell requires suppression. Pt the government circumvented the Second Circuit’s 11 EFTA00015317

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decision in Martindell y. International Telephone & Telegraph Corp. and violated Maxwell’s rights. In Martindell, the government tried to obtain deposition transcripts of twelve individuals deposed in a private shareholders’ derivative lawsuit. 594 F.2d at 292-93. All twelve depositions were taken “pursuant to a court-approved stipulation to the effect that the depositions should be treated as confidential and used solely by the parties for prosecution or defense of the action.” Jd. at 292. Without seeking to intervene, and without serving a subpoena or warrant, the government called and then wrote to the district court to request access to the deposition transcripts. Jd. at 293. The government claimed that the deposition transcripts were relevant to its investigation of perjury, subordination of perjury, and conspiracy related to the 1970 presidential election in Chile. Jd. The government, “moreover, feared that unless it could obtain the deposition transcripts, it would be unable to secure statements from the witnesses because they would claim their Fifth Amendment rights in any investigative interviews.” /d. The district court denied the government’s request, “holding that the deposition testimony had been given in reliance upon the protective order, thus rendering unnecessary invocation by the witnesses of their Fifth Amendment rights, that the requested turnover would raise constitutional issues, and that principles of fairness mandated enforcement of the protective order.” /d. The government appealed, and the Second Circuit affirmed. The Second Circuit was blunt in explaining the government’s missteps: The government may not . . . simply by picking up the telephone or writing a letter to the court (as was the case here), insinuate itself into a private civil lawsuit between others. The proper procedure, as the government should know, was either to subpoena the deposition transcripts for use in a pending proceeding such as a grand jury investigation or trial, in which the issue could be raised by motion to quash or modify the subpoena, see Rule 17(c), or to seek permissive intervention in the private action pursuant to Rule 24(b), for the purpose of obtaining vacation or modification of the protective order. EFTA00015318

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Id. at 294. Either avenue, explained the Court, would provide the real party in interest notice of the government’s request and an opportunity to be heard, either by moving to quash the subpoena or opposing intervention and modification of the protective order. /d. The Court also rejected the government’s argument that the district court was too solicitous of the witnesses’ Fifth Amendment rights. /d. at 295. According to the Government, the witnesses were under no compulsion to testify, and having given testimony, they voluntarily waived any Fifth Amendment right they may have had. /d. But as the Second Circuit explained, the government’s argument ignored the reality of civil litigation: Unless a valid Rule 26(c) protective order is to be fully and fairly enforceable, witnesses relying upon such orders will be inhibited from giving essential testimony in civil litigation, thus undermining a procedural system that has been successfully developed over the years for disposition of civil differences. In short, witnesses might be expected frequently to refuse to testify pursuant to protective orders if their testimony were to be made available to the government for criminal investigatory purposes in disregard of those orders. Id. at 295-96. The Court thus held: [A]bsent a showing of improvidence in the grant of a Rule 26(c) protective order or some extraordinary circumstance or compelling need, none of which appear here, a witness should be entitled to rely upon the enforceability of a protective order against any third parties, including the Government, and that such an order should not be vacated or modified merely to accommodate the government’s desire to inspect protected testimony for possible use in a criminal investigation, either as evidence or as the subject of a possible perjury charge. Id. at 296. Maxwell did not even know the government had (iii until after she was 13 EFTA00015319

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indicted, and she didn’t know for a month more i i Martindell has been binding Second Circuit law for more than forty years, and the government's violation of its holding is no trivial ni iii _ __ In Palmieri v. State of New York, the federal magistrate issued two sealing orders protecting the confidentiality of settlement discussions of a private antitrust case. 779 F.2d 861, 863-64 (2d Cir. 1985). Because the subject matter of the antitrust case overlapped with an ongoing state criminal antitrust case, the state Attorney General moved to intervene in the private antitrust case, to modify the seal orders, to access the settlement material, and to present the material and testimony to a state grand jury. /d. at 862. The district court granted the Attorney General’s request, but the Second Circuit, applying Martindell, reversed. Id. The Second Circuit recognized that the state Attorney General, like the federal government, “enjoys a similarly privileged position with respect to its investigatory powers.” /d. at 866. Those powers, in turn, “raise[d] a rebuttable presumption against modification of the orders.” Jd. Indeed, given the parties’ reliance on the sealing orders, the Attorney General’s “burden [was] heavier than it might otherwise be.” /d. at 865. 14 EFTA00015320

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Here, the government did not even attempt the Martindell process the Attorney General Ill. The government’s violation of the Fifth Amendment requires suppression. The Fifth Amendment provides: “No person . . . shall be compelled in any criminal case to be a witness against himself.” U.S. CONsT. amend. V. For three separate reasons ee violates the Fifth Amendment. First, the Fifth Amendment “proscribe[s] the compelled production of . . . a Testimonial Communication that is incriminating.” Fisher, 425 U.S. at 408; see Dionisio, 410 U.S. at 11 (“The grand jury cannot require a witness to testify against himself.”). The subpoena ofl ; | contravenes this proscription because it literally “compels production” of Maxwell’s incriminating testimony PY Second, “a compulsory production of the private books and papers . . . [also] is compelling . . . him to be a witness against himself, within the meaning of the fifth amendment.” Boyd, 116 U.S. at 634-35. Even if the subpoena does not literally require Maxwell to “testify against herself,” Dionisio, 410 U.S. at 11, Maxwell {a were private and confidential under the Protective Order. Supra Part I.B. Compelling production of these “private” papers is itself a Fifth Amendment violation. Third, the government’s circumvention of Martindell unconstitutionally burdens Maxwell’s Fifth Amendment ich 2 7 7_ ___e ee the government’s conduct, and it authorized her to civ TE c.: the shield of the Protective Order without worrying whether the government could “insinuate itself” into the EFTA00015321

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case and use her own words against her. 594 F.2d at 294. The Fifth Amendment would mean nothing if an individual were told by a district court that she need not invoke its protections because the government could not use her testimony against her—or at least could not do so without notice and an opportunity to be heard—only to find out that the testimony she offered with the district court’s blessing was the primary evidence against her in a criminal case and the basis of perjury charges. That is the lesson of United States v. Oshatz, in which this Court quashed a government subpoena issued to a court reporter for a transcript of a deposition offered by the defendant in a civil proceeding. 700 F. Supp. 696, 697 (S.D.N.Y. 1988). Oshatz (who had been indicted at the time of his deposition) was deposed and did not invoke his Fifth Amendment privilege against self-incrimination on “the understanding that a protective order would preserve his Fifth Amendment rights.” /d. at 699. Applying Martindell, this Court quashed the government’s subpoena and refused to release the deposition transcript because the “government [had] not argued that the protective order was improvidently granted or that there [were] some extraordinary circumstances or compelling need.” /d. at 701. Here, as in Oshatz, Maxwell was deposed on “the understanding that a protective order would preserve” the confidentiality of her testimony. And even though Maxwell had not been indicted at the time of her depositions, the threat of an investigation was obvious, and that threat was the very reason the Protective Order deliberately excluded a law-enforcement exception. (Moreover, Maxwell moved the court to require | og disclose any law enforcement investigation of which she was aware.) As in Oshatz, the Protective Order was designed to preserve Maxwell’s Fifth Amendment rights. Where this Court in Oshatz granted a motion to quash, here it should grant a motion to suppress. EFTA00015322

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For these reasons, this Court should suppress iii under the Fifth Amendment. Conclusion For these reasons, this Court should: (1) suppress all evidence the government obtained from and any other evidence derived therefrom; or (2) suppress the April and July 2016 depositions and all evidence derived therefrom; and (3) dismiss Counts Five and Six. Maxwell requests an evidentiary hearing on this Motion. Dated: January 25, 2021 Respectfully submitted, s/ Jeffrey S. Pagliuca Jeffrey S. Pagliuca Laura A. Menninger HADDON, MORGAN & FOREMAN P.C. Denver, CO 80203 Mark S. Cohen Christian R. Everdell COHEN & GRESSER LLP Bobbi C. Sternheim Law Offices of Bobbi C. Sternheim New York, NY 10011 Attorneys for Ghislaine Maxwell 17 EFTA00015323

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Certificate of Service I hereby certify that on January 25, 2021, I served by email, pursuant Rule 2(B) of the Court’s individual practices in criminal cases, the Memorandum of Ghislaine Maxwell in Support of Her Motion Under the Fourth Amendment, Martindell, and the Fifth Amendment to Suppress All Evidence Obtained from the government's Subpoena te and to Dismiss Counts Five and Six upon the following: U.S. Attorney’s Office, SDNY w_ York, 10007 s/ Christian R. Everdell EFTA00015324