UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK wane x UNITED STATES OF AMERICA, 20 Cr. 330 (AJN) v. GHISLAINE MAXWELL, Defendant. wn x GHISLAINE MAXWELL’S MOTION TO SUPPRESS IDENTIFICATION Jeffrey S. Pagliuca Laura A. Menninger HADDON, MORGAN & FOREMAN P.C. 150 East 10th Avenue Denver, 2 Phone: Christian R. Everdell COHEN & GRESSER LLP 800 Third Avenue New York, NY 10022 Phone: Bobbi C. Sternheim Law Offices of Bobbi C. Sternheim 225 Broadway, Suite 715 New York. NY 10007 Attorneys for Ghislaine Maxwell EFTA00090466

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TABLE OF CONTENTS BACKGROUND 2..0...cc.ccccssesseeseeseesuessessessesseeseeseesessesseeseeseesesessesussusesseussneeuseuseuseuesuesussuesueeeeeeeeeeeee 1 ARGUMENT ...0.0...cccccccescssesessssssesesssesesesessesseescnsessssusessssseneessssuensesesusosseeeeuseseesnensesseseenseceneneeseceeees 2 EFTA00090467

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TABLES OF AUTHORITIES Cases Manson vy. Brathwaite, 432 U.S. 98 (1977) .occcccccccccceceeeeeeeeeeeeeeeeseeseeeeeeeseeeeseeseeseeeeeesseeseeeseeeee 2,3 Raheem y. Kelly, 257 F.3d 122 (2d Cir. 2001) ..ccccccccccceceeceeeeceeeeeeeeeeeeeeseeceeeeeeeseeseeeesesseesesesaees 3 Stovall v. Denno, 388 U.S. 293 (1967) .o.ccccccccccccceceeseseeseeeeseeeeseeseseeeeeeeseeeeeeeaesaeseeeesesaeeeeeeeeesaeeeeaes 2 United States v. Concepcion, 983 F.2d 369 (2d Cir. 1992) ooocccccccccccceeceeeceeeeeeeeeeeeeeeeeeeeeeeeeeeeeaes 3 United States v. Hemmings, 482 F. App'x 640 (2d Cir. 2012).......ccccccccecscesesesesessseeeseeeseseeeeeeneeeeeees 3 ii EFTA00090468

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Defendant Ghislaine Maxwell, through counsel, moves to prohibit the Government from offering testimony from Accuser 4 EE identifying Ms. Maxwell as a perpetrator of any crime. Any in-court identification is tainted by unduly suggestive photo array procedures employed by the Government that violate Ms. Maxwell’s right to due process under the United States Constitution for the following reasons: BACKGROUND Accuser 4, ES was first contacted by the FBI in 2007. Sg was interviewed on August 7, 2007 by Agents iS and asked about any abuse by Jeffrey Epstein. [a a HE (lid not identify Ms. Maxwell as someone who recruited her, groomed her, or otherwise interacted with her in Palm Beach, Florida, or any other location. She identified yy HEE Ss someone she interacted with and who took nude photographs of her at Mr. Epstein’s After her FBI interview, [J represented by counsel, filed Jj lawsuits against Jeffrey Epstein iS GE. Neither of those lawsuits mentions Ms. Maxwell. ij ee ee a During her deposition in connection with the lawsuil, a ES She did not identify Ms. Maxwell as having had any role in any alleged sexual abuse or trafficking. EFTA00090469

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On June 23, 2021, almost twenty years after the alleged events, and 14 years after yyy HE lid not identify Ms. Maxwell as the perpetrator of any crime, the Government presented J with a series of Jj photographs, attached as Exhibit A. x EE {be photographic identification procedure used was the functional equivalent of a one-on-one show-up. Any identification is tainted and should therefore be suppressed by the Court. ARGUMENT A defendant's right to due process includes the right not to be the object of suggestive police identification procedures that create “a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384 (1968); accord Neil v. Biggers, 409 U.S. 188, 198 (1972): see also Manson v. Bratirwaite, 432 U.S. 98, 106 n.9, 114 (1977). This principle applies both to show-ups, see, e.g., Stovall v. Denno, 388 U.S. 293 (1967), and to photographic identifications. Simmons v. United States, 390 U.S. 377, 384 (1968). N EFTA00090470

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When a defendant challenges the admissibility of identification testimony given by a witness who made a pretrial identification, the Court is required to conduct a two-part inquiry, asking first whether the pretrial identification procedures were unduly suggestive and, if so, whether the identification is nonetheless independently reliable. Raheem v. Kelly, 257 F.3d 122, 133 (2d Cir. 2001). A Government arranged photo array is unduly suggestive when a procedure “give[s] rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States at 384 (1968); see also United States v. Hemmings, 482 F. App'x 640, 646 (2d Cir. 2012). In the context of a photo array, familiar examples of a suggestive presentation include the “use of a very small 39 66, number of photographs,” “the use of suggestive comments,” or the display of the accused’s photograph in a way that “so stood out from all of the other photographs as to suggest to an identifying witness that that person was more likely to be the culprit.” United States v. Concepcion, 983 F.2d 369, 377 (2d Cir. 1992). ee | he photo looks like a mug shot, is different than the others, and the manner in which it was presented was unduly suggestive. Where, as here, pretrial procedures have been unduly suggestive, the court must determine whether an in-court identification will be the product of the suggestive procedures or whether instead it is independently reliable. The factors to be considered include “the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” Neil v. Biggers, 409 U.S. at 199-200; accord Manson v. Brathwaite, 432 U.S. EFTA00090471

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at 114. The factors must be assessed in light of the totality of the circumstances, and the linchpin of admissibility is reliability. Here, the factors weigh heavily in favor of suppression. EE in interviews, court filings, and under oath, never identified Ms. Maxwell as anyone who abused her in any fashion. There was no “opportunity” for JJ to “view the criminal at the time of the crime” because Ms. Maxwell did not participate in any crime. There was no prior description of Ms. Maxwell by J and the length of time between the alleged event and the suggestive identification procedure was extraordinarily long. Accordingly, any identification, both out of court and in court, should be suppressed. Dated: October 18, 2021 Respectfully submitted, S/ Jeffrey S. Pagliuca Jeffrey S. Pagliuca Laura A. Menninger HADDON, MORGAN & FOREMAN P.C. 150 East 10th Avenue Denver, CO 80203 Phone: Christian R. Everdell COHEN & GRESSER LLP 800 Third Avenue New York, NY_ 10022 Phone: a Bobbi C. Sternheim Law Offices of Bobbi C. Sternheim 225 Broadway, Suite 715 New York, NY 10007 Phone: Attorneys for Ghislaine Maxwell EFTA00090472

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Certificate of Service I hereby certify that on October 18, 2021, I electronically filed the foregoing Memorandum of Ghislaine Maxwell's Motion to Suppress Identification with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following: U.S. Attorney’s Office, SDNY One Saint Andrew’s Plaza New York, NY_10007 EFTA00090473