December 4, 2025 • 27 mins
When the government files a brief in response to a defendant's appeal, its function is to present arguments and legal reasoning supporting the lower court's decision and opposing the defendant's arguments for overturning that decision. This brief serves to defend the conviction or ruling made against the defendant in the lower court.
Typically, the government's brief will address the legal issues raised by the defendant on appeal, analyze relevant case law, statutes, and constitutional principles, and argue why the lower court's decision should be upheld. It may also address any procedural or evidentiary issues raised by the defendant.
In essence, the government's brief is a key component of the appellate process, where both sides present their arguments to the appellate court, which will ultimately decide whether to affirm, reverse, or modify the lower court's decision.
In this episode, we begin our look at the United States Governments brief in response to Ghislaine Maxwell's attempt at appealing her sentence.
to contact me:
bobbycapucci@protonmail.com
source:
gov.uscourts.ca2.57831.79.0_1.pdf (courtlistener.com)
Become a supporter of this podcast: https://www.spreaker.com/podcast/the-epstein-chronicles--5003294/support.
Typically, the government's brief will address the legal issues raised by the defendant on appeal, analyze relevant case law, statutes, and constitutional principles, and argue why the lower court's decision should be upheld. It may also address any procedural or evidentiary issues raised by the defendant.
In essence, the government's brief is a key component of the appellate process, where both sides present their arguments to the appellate court, which will ultimately decide whether to affirm, reverse, or modify the lower court's decision.
In this episode, we begin our look at the United States Governments brief in response to Ghislaine Maxwell's attempt at appealing her sentence.
to contact me:
bobbycapucci@protonmail.com
source:
gov.uscourts.ca2.57831.79.0_1.pdf (courtlistener.com)
Become a supporter of this podcast: https://www.spreaker.com/podcast/the-epstein-chronicles--5003294/support.
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:00):
What's up, everyone, and welcome back to the Epstein Chronicles.
In this episode, we're going to continue on taking a
look at the United States government's brief in response to
Glenn Maxwell's attempt to appeal her sentence. One. Maxwell is
not entitled to enforce the NPA. As an initial matter,
Maxwell has no right to invoke the protections of the NPA.
(00:23):
Maxwell was not a signatory of the agreement. While the
third party beneficiary doctrine is a tenant of contract law,
its application to plea agreements under federal law is a
separate question because plea agreements differ from commercial contracts in
meaningful respects United States versus Feldman, nine thirty nine F
dot three d one eighty two, one eighty nine, Second Circuit,
(00:45):
twenty nineteen. We have long recognized that plea agreements are
significantly different from commercial contracts. It's doubtful that a third
party beneficiary can enforce a plea agreement. See United States
versus Lopez, nine four f dot two d d thirty three,
thirty seven for a Circuit nineteen ninety one, observing that
we are unaware of authority supporting application of a third
(01:08):
party beneficiary principles to a plea agreement in a criminal case.
United States versus Mariama Viju Number fifteen R two forty
twenty sixteen, w L one zero seven eight four to
one at four ND Texas, January eleventh, twenty sixteen, explaining
that the right to enforce a plea deal does not
(01:29):
exist for its own sake. Rather, it is a means
to achieve fairness in plea bargaining, and enforcement by third
parties adds nothing to protecting the defendant's rights. In any event,
even under the third party beneficiary law on which Maxwell relies,
she would have to show that the original parties intended
the agreement to directly benefit her as a third party.
(01:52):
United States versus Wilson, two sixteen FT. Three d six
forty five six sixty three seven Circuit two thousand, dooming
without deciding that third party could enforce immunity agreement. See
also United States versus. Florida International Airways Incorporated. Eight fifty
three f supp two D twelve oh nine twelve twenty
(02:13):
eight SD. Florida, twenty twelve. Third party must show that
a direct and primary object of the contracting parties was
to confer a benefit on the third party. Quoting Bocheese
versus Town of ponts Inlet, four h. Five ft. Three d.
Nine sixty four nine eighty two eleven Circuit two thousand
and five. Here Maxwell has failed to make the requisite
(02:36):
showing she is not named in the provision naming four
potential co conspirators, and she has offered no evidence that
the parties to the NPA intended to confer a benefit
on her. Specifically, Accordingly, Maxwell may not enforce the NPA two.
The NPA's terms bind only the USAO SDFL. Even if
(02:58):
Maxwell had a right to invoke the NBA protections, it
would not bar the charges in this case. By its terms,
the MPa only applies to prosecutions brought by the USAO SDFL.
The agreement was signed on the authority of Alexander Acosta,
United States Attorney for the Southern District of Florida, and
in exchange for Epstein's plea in state court, the USAO
(03:21):
SDFL agreed to defer prosecution in this district, that is,
the Southern District of Florida. The USAO SDFL further promise
that no prosecution by the Federal Bureau of the Investigation
and the us Attorney's office will be instituted in this district.
An agreement by the us AOSDFL not to prosecute Epstein
(03:43):
in Southern District of Florida is an agreement intended to
apply only to the USAO SDFL and only to the
Southern District of Florida. Moreover, the agreement was signed by
officials of the USAO SDFL and no other canpuments of
the Department of Justice. Accordingly, the plain terms of the
(04:03):
NPA may clear that the agreement only binds the USAO SDFL.
Maxwell's argument that the NPA binds the USAO SDNY relies
on a separate provision of the agreement, which says that
the United States also agrees that it will not institute
any criminal charges against any potential co conspirators of Epstein,
(04:25):
including but not limited to, a list of four individuals
does not include the defendant. But her argument that the
term United States means the entire federal government requires the
term to be read in isolation. As Judge Nathan explained,
terms like the United States or the government are common
shorthand for a single US Attorney's office, and the plea
(04:47):
agreement need not painstakingly spell out the office of the
United States Attorney for such and such district in every
instance to make clear that it applies only to the
district where it was signed two ft three d at
one twenty. The mere use of the term government in
the plea agreement does not create an affirmative appearance that
(05:08):
the agreement contemplated barring districts other than the particular district
entering into the agreement. United States versus Gonzales, ninety three
f Dot app x two sixty eight two seventy Second Circuit,
two thousand and four. Although paragraph twelve b uses the
term United States rather than the term government, this is
(05:29):
a distinction from our prior case law without difference. Reading
the NPA as a whole confirms that conclusion. The very
next sentence of the agreement states that the federal grand
jury investigation will be suspended. The grand jury investigation is
the one that USAOSDFL agreed to defer in the same agreement,
(05:51):
and not any potential federal grand jury investigations in other districts. Furthermore,
the NPA elsewhere refers to the United States on occasion
that could only mean the USAO SDFL. For instance, the
NPA commits the United States, that is, the USAO SDFL
to providing EPSTEIN with a list of victims A. One
(06:12):
seventy seven. The United States shall provide Epstein's attorneys with
a list of individuals whom it has identified as victims.
Another provision states that the NPA will not be made
part of the public record and commits the United States
again the us AOSDFL to providing notice to Epstein if
it receives a Freedom of Information Act request requiring disclosure
(06:34):
of the agreement A. One seventy eight. The mere fact
that the co conspirators provision of the NPA use the
phrase United States rather than US Attorney's Office is not
evidence at the party's intended an unusually broad immunity provision
see Kerstang versus John Wiley and Sons, Incorporated, five sixty
(06:55):
eight US five nineteen five forty twenty thirteen. We are
not aware, however, of any canon interpretation that forbids interpreting
different words used in different parts of the same statute
to mean roughly the same thing, as Judge Nathan concluded.
Given the repeated limitations of the commitments in the NPA
to the USAO SDFL, including the commitment not to prosecute Epstein.
(07:20):
It's not plausible that the parties intended to drastically expand
the agreement's scope in the single sentence on the prosecution
of co conspirators without clearly saying so. Maxwell also points
to the NPA provision stating that Epstein seeks to resolve
globally his state and federal criminal liability. Based on that statement,
(07:40):
Maxwell argues that Epstein's purpose in negotiating the NPA was
to obtain a global resolution that would, among other things,
provide maximum protection for any alleged co conspirators. But the
cited provision only says that Epstein sought to resolve his liability,
not anyone else's. Furthermore, under Maxwell's reading, Epstein bargained for
(08:01):
a truly global resolution only for his co conspirators and
limited his own global resolution expressly to the USAO SDFL.
There is no reason to believe that Epstein expressly sought
and obtained broader immunity for his co conspirators than he
did for himself. Lacking any support in the text of
the NPA itself, Maxwell attempts to show the NPA applies
(08:24):
here based on the negotiations between defendant and Prosecutor Russo
eight oh one f. Dot two d At six twenty six.
In particular, Maxwell claims that the negotiating history of the
NPA shows that senior levels of Main Justice were directly
involved in the negotiation and approval of the NPA, even
to the extent that the separate presentations were made to
(08:47):
and approval of the NPA was obtained from the office
of the Deputy Attorney General. This assertion, however, mischaracterizes the
record and further underscores the absence of any senior approvals
negotiating the NPA. The pages to which Maxwell cites described
activities after the NPA was signed in which Justice Department
(09:08):
officials in Washington refused to believe Epstein of his obligations
under the NPA. The OPR report reflects that the obviice
of the Deputy Attorney General reviewed the NPA, but only
after it was signed, when Epstein tried to get out
of it. Even then, however, those officials did not approve
the NPA. Statement by the Assistant Attorney General that she
(09:29):
did not review approved the agreement either before or after
it was signed. The Department, however, only reviewed the issue
of federal jurisdiction and never reviewed the NPA or any
specific provisions. Maxwell also cobbles together instances in which the
USAO SDFL and the FBI in Florida enlisted the assistance
of other components of the federal government or considered acting
(09:53):
outside of Florida, such as the USAO sdfl's contact with
witnesses in New York. These disparate and unconnected events do
not show the USAO SDFL acted on behalf of the
entire federal government when entering into the NPA, or that
Epstein understood the USAO SDFL to be doing so. Maxwell
(10:15):
also advances several arguments attempting to minimize or sidestep the
court's precedent. For example, Maxwell argues that ANNABY applies only
if the charges in the indictment are sufficiently distinct from
the counts resolved by the earlier agreement, not so. The
irrelevant portions of a NABBY concerned an argument by the
defendants that, in seeking to have a plea agreement in
(10:37):
the Eastern District of New York bar the pending charges
in the Southern District of New York, they were seeking
only the same protection accorded by the double jeopardy clause
seven seventy one Ft. Two d At. Six seventy two.
This Court rejected that argument, reasoning that even if the
double jeopardy clause applied, notwithstanding to the defendants that were
(10:58):
never in jeopardy on these charges in the Eastern District,
the defendants would not be entitled to relief because the
pending charges extended for an additional two years and thus
were not the same charges that were dismissed. Thus, Annaby
did not hold that its rule that a plea agreement
binds only the office of the United States Attorney for
the district in which the plea is entered, unless it
(11:20):
affirmatively appears that the agreement contemplates a broader restriction applies
only if the charges are sufficiently distinct, and, as Judge
Nathan recognized, no subsequent Second Circuit case applying an abbe
has so held. Next, Maxwell argues that this court should
disregard its own precedents and instead apply Eleventh Circuit law
(11:42):
because the NPA was negotiated in Florida with Southern District
of Florida prosecutors in exchange for Epstein's agreement to plead
guilty in Florida State Court, but this court has consistently
applied an abbe even when considering plea agreements from out
of district districts. Prisco three ninety one FT nine twenty
one District of New Jersey, United States versus Asheroff three,
(12:04):
twenty twenty six twenty eight, Second Circuit, two thousand and nine,
Eastern District of Virginia, Gonzales ninety three f. Appendix at two,
seventy District of New Mexico, United States versus Brown Number
ninety nine, twelve thirty L two thousand and two WL
three four two four four nine nine four at two,
Second Circuit, two thousand and four, Southern District, Florida. These
(12:27):
decisions are consistent with choice of law principles in criminal cases,
where the governing law is always that of the forum
state in the forum court has jurisdiction. American Conflicts Law
three seventy five, fifth Edition, twenty twenty one. See two
Attorney client privilege in the United States, Section twelve ten.
Choice of law scholars have long recognized that criminal law
(12:49):
local in nature, and it's settled that in criminal prosecutions,
the court will routinely apply the substantiative law of the
Forum American Conflicts Law three ninety In any event, eleven
Circuit law would not support Maxwell's claim. Maxwell does not
cite any Eleven Circuit decisions addressing when one U s
Attorney's office is bound by a plea agreement with another
(13:12):
US attorney's office, but in context, the Eleventh Circuit held
that a US attorney's promise made in a plea agreement
that a criminal defendant would not be deported was unenforceable
because the US attorney lacked authority to make that promise.
San Pedro VERSUS United States seventy nine FD ten sixty
five ten seventy two Eleven Circuit nineteen ninety six. In
(13:34):
the Eleventh Circuit were to apply the reasoning of san
Pedro to the issue in this case, it would likely
reach the same result because US attorneys only has authority
to act within his district US Code twenty eight, section
five forty seven, and must seek the approval of each
affected US Attorney's office before entering into any non prosecution
(13:54):
agreement that purports to bind another district See Justice Manual
Section nine twenty seven six forty one. No district or
division shall make any agreement, including any agreement not to prosecute,
which purports to bind any other district or division, without
the approval of the United States Attorneys in each affected
district and or the appropriate Assistant Attorney General. Finally, Maxwell
(14:19):
devotes much of her brief to criticizing an abby. But
this Court's rule is sound, as it ensures that a
criminal defendant or even as here a co conspirator, will
not receive the windfall of immunity that was never intended
by the parties to the original agreement, while leaving parties
free to enter into legitimate multi district resolutions if they wish.
(14:41):
Nor has Maxwell's parade of horribles come to pass in
the decades since an ABBI was decided. Furthermore, the same
rule has long been applied in the Seventh Circuit see
Thompson versus United States four point thirty one, Appendix four
ninety one, four ninety three seven Circuit twenty eleven, United
States versus. Rourke, seventy four ft three D eight oh
(15:02):
two eight oh seven and dot five seven Circuit nineteen
ninety six. In any event, this Court need not engage
in a point by a point analysis of the merits
of an abby because it remains binding precedent see United
States versus Wilkerson, three sixty one f Dot three D
seven seventeen seven thirty two, Second Circuit, two thousand and four. Thus,
(15:24):
Epstein's NPA with the USAO SDFL does not bar this
prosecution of Maxwell, and Judge Nathan correctly denied the motions
to dismiss. All right, we're gonna wrap up right here
and then the next episode we'll pick up where we
left off, and that's with the District Court did not
abuse its discretion in declining to conduct a hearing. All
(15:46):
of the information that goes with this episode can be
found in the description box. What's up everyone, and welcome
back to the Epstein Chronicles. In this episode, we're gonna
pick up where we left off with the United States
brief and response to glaim Maxwell in her attempt at
an appeal number three. The District Court did not abuse
(16:06):
its discretion in declining to conduct a hearing. Finally, Maxwell
argues that the District Court erred by denying hermotions to
dismiss without an evidentiary hearing. But, as Judge Nathan explained,
the cases cited by Maxwell in support of her request
for a hearing mostly involved oral arguments where there was
no written record of the full set of terms reached
(16:29):
by the parties, and all of which involved defendants with
first hand knowledge of the negotiations. This is no such case.
The NPA's terms are clear. Furthermore, Maxwell had an unusually
large amount of information about the NPA's negotiation history in
the form of the OPR report, yet identifies no evidence
(16:49):
that the Department of Justice made any promises not contained
in the NPA here as below. Maxwell's further request for
a hearing rests on mere conjecture Judge Nathan did not
abuse her discretion. Point number two. The district court correctly
concluded that the charges were timely. In two thousand and three,
(17:10):
Congress extended the statue of limitations for offenses involving the
sexual or physical abuse of a minor to allow prosecution
so long as the victim remains alive. US Code eighteen,
Section thirty two, eighty three. Attempting to undermine the clear
legislative intent, Maxwell argues that the amendment did not apply
to her case because her crimes both predated the amendment
(17:32):
and did not involve sexual abuse. These arguments fly in
the face of the statutory text, legislative history, this Court's
own decisions, and the persuasive authority of other circuits. The
charges fell squarely within the amended statue of limitations, and
this Court should affirm Judge Nathan's well reasoned decisions denying
Maxwell's motions to dismiss the charges as untimely a applicable
(17:58):
law once standard of review. This Court reviews d. Novo
both the denial of a motion to dismiss an indictment
and the application of a statute of limitations. United States vers. Sampson,
eight ninety eight FT. Three d two seventy two, seventy six,
two seventy eight, Second Circuit twenty eighteen two statutes of
(18:20):
limitations for offenses against children US Code eighteen, section thirty
two eighty three and child abduction and sex offenses US
Code eighteen, Section thirty two, ninety nine. Most federal non
capital offenses carry a five year statute of limitations see
US Code eighteen, section thirty two eighty two A. In
(18:41):
nineteen ninety, Congress enacted a provision titled Extension of Child
Statute of Limitations, which provided that no statute of limitation
that would otherwise preclude prosecution for an offense involving the
sexual or physical abuse of a child under the age
of eighteen shall preclude such a prosecute US before the
child reaches the age of twenty five. The Crime Control
(19:04):
Act of nineteen ninety Pub. Dot L. Number one zero
one Dash six forty seven, Title two, Section two twenty
five A one oh four STA T four seven eight
nine four seven nine eight codified at US Code eighteen,
Section thirty five oh nine K nineteen ninety This provision
extended the federal criminal limitation period for child sex abuse offenses,
(19:28):
making it easier to prosecute offenders who commit sex crimes
that may be difficult to detect quickly. Winingarten versus the
United States eight sixty five f dot three D forty
eight fifty four, Second Circuit twenty seventeen. In nineteen ninety four,
Congress recodified this provision, moving it to US Code eighteen,
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Section thirty two eighty three with identical language. Violent Crime
Control and Law Enforcement Act of nineteen ninety four, pub.
Dot L Number one zero three dashed THAE three two two,
Title thirty three, Section thirty three zero zero one eight
A Statute one oh eight seventeen ninety six two one
(20:09):
four nine, codified at US Code eighteen, Section thirty two
eighty three, nineteen ninety four. Within a decade, Congress began
to view even the extended Statute of Limitations period in
nineteen ninety four version of the thirty two eighty three
as inadequate in many cases because they were released from
criminal liabilities. Sex abusers whose crimes were not brought to
(20:32):
the attention of federal authorities until after their victims turned
twenty five Wingarten eight sixty five f dot three d
at fifty four. Accordingly, in two thousand and three, Congress
enacted a provision titled No Statute of Limitations for Child
Abduction and Sex Crimes, which amended section thirty two eighty
three to read, no statute of limitations that would otherwise
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preclude prosecution foreign offense involving the sexual or physical abuse
or kidnapping of a child under the age of eighteen
shall preclude such prosecution during the life of the child.
Prosecutorial Remedies and Tools against the Exploitation of Children Today
Act of two thousand and three, The Protect Act pub L.
(21:15):
Number one zero eight twenty one Title two, Section two
two one seventeen Statute six fifty six sixty codified at
US Code eighteen, Section thirty two eighty three, two thousand
and three. In two thousand and six, Congress enacted a
provision titled Longer Statute of Limitations for Human Trafficking related
(21:35):
Offenses and subtitled modification of Statute Applicable to Offense against Children,
which further amended section thirty two eighty three to its
current form to permit the prosecution of such offenses during
the lifetime of the victim or ten years after the offense,
whichever is longer. Violence against Women and Department of Justice
(21:56):
Reauthorization Act of two thousand and six pub dot x L.
Number one oh nine tosh one sixty two, Title eleven,
Section eleven eighty two C one nineteen Statute twenty nine
sixty thirty one twenty six, codified at US Code eighteen,
Section thirty two eighty three, two thousand six. Later, in
(22:17):
two thousand and six, Congress enacted US Code eighteen, section
thirty two ninety nine in a provision titled no Limitation
for Prosecution of Felony sex Offenses, which provides that, notwithstanding
any other law, an indictment may be found or any
information instituted, at any time without limitation for any offense
under Section twelve oh one involving a minor victim, and
(22:40):
for any felony under Chapter one oh nine A and ten,
except for Section twenty two fifty seven and twenty two
fifty seven A or one seventeen or Section fifteen ninety one.
The Adam Walsh Child Protection and Safety Act of two
thousand and six Pub. Dot L. Number one on nine Nineash.
Two forty eight, Title two, Section two eleven one one
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twenty Statute five eighty seven six sixteen codified at US
Code eighteen, Section thirty two ninety nine two thousand six. Sec.
Three Retroactivity under landgraph in Land Graph versus USI Film Products,
five eleven US two forty four, nineteen ninety four. The
Supreme Court set fourth to two part framework for determining
(23:27):
whether a statute may be applied retroactively. At the first step,
if Congress expressly prescribed that a statute applies retroactively to
the antecedent conduct, the inquiry ends in the Court enforces
the statute as it is written, save for constitutional concerns.
Winngarten eight sixty five ft three d At fifty four
(23:47):
and fifty five. If, however, the statute is ambiguous or
contains no express command regarding retroactivity, then the court must
turn to the second step, where a reviewing court must
determine whether a applying the statute to the antecedent conduct
would create presumptively in permissible retroactive effects idea. Fifty five.
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If it would, then the court shall not apply the
statute retroactively absent clear congressional intent to the contrary. If
it would not, then the court shall apply the statute
to antecedent conduct. Be the discussion one, there was no
impermissible retroactivity in applying Section thirty two eighty three to Maxwell.
(24:28):
Maxwell's claims that the district Court aired by applying section
thirty two eighty three's two thousand and three amendment to
her six counts of conviction ie Counts three, four, and
six because they involve conduct that predated the amendment as
an initial matter. This argument ignores the fact that counts
three and six both charge continuing offenses that continued into
(24:51):
two thousand and four, thus post dating Section thirty two
eighty three's amendment. Moreover, under the lang graph framework in
the two thousand and three Amendment properly applies to pre
enactment criminal conduct that still could have been timely prosecuted
at the time of the enactment, As was the case
here a, there was no retroactivity as to count three
(25:13):
and six as an initial matter. Counts three and six
both charge conduct that continued through two thousand and four,
i e. After the two thousand and three Amendment to
section thirty two eighty three, and thus present no retroactivity
concerns for conspiracy charges requiring proof of an overt act,
(25:33):
including US Code eighteen, Section three seventy one, the conspiracy
statute at issue here. The statute of limitations runs from
the date of the last overt act in furtherance of
the conspiracy United States versus. Monaco one ninety four F.
Dot three d three eighty one, three eighty seven and
dot two, Second Circuit, nineteen ninety nine, according to the
(25:55):
United States versus ben Zivi two forty two F. Dot
three d eighty nine ninety seven, Second Circuit, two thousand
and one. Similarly, for a continuing substantative offense, the statute
of limitations only begins to run out when the crime
is complete, meaning when the conduct has run its course.
United States versus Epulido five forty three ft three D.
(26:17):
Twenty five forty six, Second Circuit, two thousand and eight.
Here the indictment alleges the conspiracy charged and counts three
and the sex trafficking offense charged in count six continued
through two thousand four A one twenty seven through one
thirty two. See also A one twenty three and one
twenty four one thirty one thirty two describing conduct through
(26:40):
two thousand and four involving victim four. Thus, the statute
of limitations for these two counts did not begin to
run until two thousand and four, well after Congress enacted
the two thousand and three Amendment to section thirty two
eighty three. Maxwell's arguments about retroactivity are therefore inapplicable to
count three and six. All Right, folks, we're gonna wrap
(27:02):
up this episode here and in the next episode discussing
the topic, we're gonna pick up where we left off,
and that's with applying section thirty two eighty three to
Maxwell complies with landgraph. All of the information that goes
with this episode can be found in the description box
What's up, everyone, and welcome back to the Epstein Chronicles.
In this episode, we're going to continue on taking a
look at the United States government's brief in response to
Glenn Maxwell's attempt to appeal her sentence. One. Maxwell is
not entitled to enforce the NPA. As an initial matter,
Maxwell has no right to invoke the protections of the NPA.
(00:23):
Maxwell was not a signatory of the agreement. While the
third party beneficiary doctrine is a tenant of contract law,
its application to plea agreements under federal law is a
separate question because plea agreements differ from commercial contracts in
meaningful respects United States versus Feldman, nine thirty nine F
dot three d one eighty two, one eighty nine, Second Circuit,
(00:45):
twenty nineteen. We have long recognized that plea agreements are
significantly different from commercial contracts. It's doubtful that a third
party beneficiary can enforce a plea agreement. See United States
versus Lopez, nine four f dot two d d thirty three,
thirty seven for a Circuit nineteen ninety one, observing that
we are unaware of authority supporting application of a third
(01:08):
party beneficiary principles to a plea agreement in a criminal case.
United States versus Mariama Viju Number fifteen R two forty
twenty sixteen, w L one zero seven eight four to
one at four ND Texas, January eleventh, twenty sixteen, explaining
that the right to enforce a plea deal does not
(01:29):
exist for its own sake. Rather, it is a means
to achieve fairness in plea bargaining, and enforcement by third
parties adds nothing to protecting the defendant's rights. In any event,
even under the third party beneficiary law on which Maxwell relies,
she would have to show that the original parties intended
the agreement to directly benefit her as a third party.
(01:52):
United States versus Wilson, two sixteen FT. Three d six
forty five six sixty three seven Circuit two thousand, dooming
without deciding that third party could enforce immunity agreement. See
also United States versus. Florida International Airways Incorporated. Eight fifty
three f supp two D twelve oh nine twelve twenty
(02:13):
eight SD. Florida, twenty twelve. Third party must show that
a direct and primary object of the contracting parties was
to confer a benefit on the third party. Quoting Bocheese
versus Town of ponts Inlet, four h. Five ft. Three d.
Nine sixty four nine eighty two eleven Circuit two thousand
and five. Here Maxwell has failed to make the requisite
(02:36):
showing she is not named in the provision naming four
potential co conspirators, and she has offered no evidence that
the parties to the NPA intended to confer a benefit
on her. Specifically, Accordingly, Maxwell may not enforce the NPA two.
The NPA's terms bind only the USAO SDFL. Even if
(02:58):
Maxwell had a right to invoke the NBA protections, it
would not bar the charges in this case. By its terms,
the MPa only applies to prosecutions brought by the USAO SDFL.
The agreement was signed on the authority of Alexander Acosta,
United States Attorney for the Southern District of Florida, and
in exchange for Epstein's plea in state court, the USAO
(03:21):
SDFL agreed to defer prosecution in this district, that is,
the Southern District of Florida. The USAO SDFL further promise
that no prosecution by the Federal Bureau of the Investigation
and the us Attorney's office will be instituted in this district.
An agreement by the us AOSDFL not to prosecute Epstein
(03:43):
in Southern District of Florida is an agreement intended to
apply only to the USAO SDFL and only to the
Southern District of Florida. Moreover, the agreement was signed by
officials of the USAO SDFL and no other canpuments of
the Department of Justice. Accordingly, the plain terms of the
(04:03):
NPA may clear that the agreement only binds the USAO SDFL.
Maxwell's argument that the NPA binds the USAO SDNY relies
on a separate provision of the agreement, which says that
the United States also agrees that it will not institute
any criminal charges against any potential co conspirators of Epstein,
(04:25):
including but not limited to, a list of four individuals
does not include the defendant. But her argument that the
term United States means the entire federal government requires the
term to be read in isolation. As Judge Nathan explained,
terms like the United States or the government are common
shorthand for a single US Attorney's office, and the plea
(04:47):
agreement need not painstakingly spell out the office of the
United States Attorney for such and such district in every
instance to make clear that it applies only to the
district where it was signed two ft three d at
one twenty. The mere use of the term government in
the plea agreement does not create an affirmative appearance that
(05:08):
the agreement contemplated barring districts other than the particular district
entering into the agreement. United States versus Gonzales, ninety three
f Dot app x two sixty eight two seventy Second Circuit,
two thousand and four. Although paragraph twelve b uses the
term United States rather than the term government, this is
(05:29):
a distinction from our prior case law without difference. Reading
the NPA as a whole confirms that conclusion. The very
next sentence of the agreement states that the federal grand
jury investigation will be suspended. The grand jury investigation is
the one that USAOSDFL agreed to defer in the same agreement,
(05:51):
and not any potential federal grand jury investigations in other districts. Furthermore,
the NPA elsewhere refers to the United States on occasion
that could only mean the USAO SDFL. For instance, the
NPA commits the United States, that is, the USAO SDFL
to providing EPSTEIN with a list of victims A. One
(06:12):
seventy seven. The United States shall provide Epstein's attorneys with
a list of individuals whom it has identified as victims.
Another provision states that the NPA will not be made
part of the public record and commits the United States
again the us AOSDFL to providing notice to Epstein if
it receives a Freedom of Information Act request requiring disclosure
(06:34):
of the agreement A. One seventy eight. The mere fact
that the co conspirators provision of the NPA use the
phrase United States rather than US Attorney's Office is not
evidence at the party's intended an unusually broad immunity provision
see Kerstang versus John Wiley and Sons, Incorporated, five sixty
(06:55):
eight US five nineteen five forty twenty thirteen. We are
not aware, however, of any canon interpretation that forbids interpreting
different words used in different parts of the same statute
to mean roughly the same thing, as Judge Nathan concluded.
Given the repeated limitations of the commitments in the NPA
to the USAO SDFL, including the commitment not to prosecute Epstein.
(07:20):
It's not plausible that the parties intended to drastically expand
the agreement's scope in the single sentence on the prosecution
of co conspirators without clearly saying so. Maxwell also points
to the NPA provision stating that Epstein seeks to resolve
globally his state and federal criminal liability. Based on that statement,
(07:40):
Maxwell argues that Epstein's purpose in negotiating the NPA was
to obtain a global resolution that would, among other things,
provide maximum protection for any alleged co conspirators. But the
cited provision only says that Epstein sought to resolve his liability,
not anyone else's. Furthermore, under Maxwell's reading, Epstein bargained for
(08:01):
a truly global resolution only for his co conspirators and
limited his own global resolution expressly to the USAO SDFL.
There is no reason to believe that Epstein expressly sought
and obtained broader immunity for his co conspirators than he
did for himself. Lacking any support in the text of
the NPA itself, Maxwell attempts to show the NPA applies
(08:24):
here based on the negotiations between defendant and Prosecutor Russo
eight oh one f. Dot two d At six twenty six.
In particular, Maxwell claims that the negotiating history of the
NPA shows that senior levels of Main Justice were directly
involved in the negotiation and approval of the NPA, even
to the extent that the separate presentations were made to
(08:47):
and approval of the NPA was obtained from the office
of the Deputy Attorney General. This assertion, however, mischaracterizes the
record and further underscores the absence of any senior approvals
negotiating the NPA. The pages to which Maxwell cites described
activities after the NPA was signed in which Justice Department
(09:08):
officials in Washington refused to believe Epstein of his obligations
under the NPA. The OPR report reflects that the obviice
of the Deputy Attorney General reviewed the NPA, but only
after it was signed, when Epstein tried to get out
of it. Even then, however, those officials did not approve
the NPA. Statement by the Assistant Attorney General that she
(09:29):
did not review approved the agreement either before or after
it was signed. The Department, however, only reviewed the issue
of federal jurisdiction and never reviewed the NPA or any
specific provisions. Maxwell also cobbles together instances in which the
USAO SDFL and the FBI in Florida enlisted the assistance
of other components of the federal government or considered acting
(09:53):
outside of Florida, such as the USAO sdfl's contact with
witnesses in New York. These disparate and unconnected events do
not show the USAO SDFL acted on behalf of the
entire federal government when entering into the NPA, or that
Epstein understood the USAO SDFL to be doing so. Maxwell
(10:15):
also advances several arguments attempting to minimize or sidestep the
court's precedent. For example, Maxwell argues that ANNABY applies only
if the charges in the indictment are sufficiently distinct from
the counts resolved by the earlier agreement, not so. The
irrelevant portions of a NABBY concerned an argument by the
defendants that, in seeking to have a plea agreement in
(10:37):
the Eastern District of New York bar the pending charges
in the Southern District of New York, they were seeking
only the same protection accorded by the double jeopardy clause
seven seventy one Ft. Two d At. Six seventy two.
This Court rejected that argument, reasoning that even if the
double jeopardy clause applied, notwithstanding to the defendants that were
(10:58):
never in jeopardy on these charges in the Eastern District,
the defendants would not be entitled to relief because the
pending charges extended for an additional two years and thus
were not the same charges that were dismissed. Thus, Annaby
did not hold that its rule that a plea agreement
binds only the office of the United States Attorney for
the district in which the plea is entered, unless it
(11:20):
affirmatively appears that the agreement contemplates a broader restriction applies
only if the charges are sufficiently distinct, and, as Judge
Nathan recognized, no subsequent Second Circuit case applying an abbe
has so held. Next, Maxwell argues that this court should
disregard its own precedents and instead apply Eleventh Circuit law
(11:42):
because the NPA was negotiated in Florida with Southern District
of Florida prosecutors in exchange for Epstein's agreement to plead
guilty in Florida State Court, but this court has consistently
applied an abbe even when considering plea agreements from out
of district districts. Prisco three ninety one FT nine twenty
one District of New Jersey, United States versus Asheroff three,
(12:04):
twenty twenty six twenty eight, Second Circuit, two thousand and nine,
Eastern District of Virginia, Gonzales ninety three f. Appendix at two,
seventy District of New Mexico, United States versus Brown Number
ninety nine, twelve thirty L two thousand and two WL
three four two four four nine nine four at two,
Second Circuit, two thousand and four, Southern District, Florida. These
(12:27):
decisions are consistent with choice of law principles in criminal cases,
where the governing law is always that of the forum
state in the forum court has jurisdiction. American Conflicts Law
three seventy five, fifth Edition, twenty twenty one. See two
Attorney client privilege in the United States, Section twelve ten.
Choice of law scholars have long recognized that criminal law
(12:49):
local in nature, and it's settled that in criminal prosecutions,
the court will routinely apply the substantiative law of the
Forum American Conflicts Law three ninety In any event, eleven
Circuit law would not support Maxwell's claim. Maxwell does not
cite any Eleven Circuit decisions addressing when one U s
Attorney's office is bound by a plea agreement with another
(13:12):
US attorney's office, but in context, the Eleventh Circuit held
that a US attorney's promise made in a plea agreement
that a criminal defendant would not be deported was unenforceable
because the US attorney lacked authority to make that promise.
San Pedro VERSUS United States seventy nine FD ten sixty
five ten seventy two Eleven Circuit nineteen ninety six. In
(13:34):
the Eleventh Circuit were to apply the reasoning of san
Pedro to the issue in this case, it would likely
reach the same result because US attorneys only has authority
to act within his district US Code twenty eight, section
five forty seven, and must seek the approval of each
affected US Attorney's office before entering into any non prosecution
(13:54):
agreement that purports to bind another district See Justice Manual
Section nine twenty seven six forty one. No district or
division shall make any agreement, including any agreement not to prosecute,
which purports to bind any other district or division, without
the approval of the United States Attorneys in each affected
district and or the appropriate Assistant Attorney General. Finally, Maxwell
(14:19):
devotes much of her brief to criticizing an abby. But
this Court's rule is sound, as it ensures that a
criminal defendant or even as here a co conspirator, will
not receive the windfall of immunity that was never intended
by the parties to the original agreement, while leaving parties
free to enter into legitimate multi district resolutions if they wish.
(14:41):
Nor has Maxwell's parade of horribles come to pass in
the decades since an ABBI was decided. Furthermore, the same
rule has long been applied in the Seventh Circuit see
Thompson versus United States four point thirty one, Appendix four
ninety one, four ninety three seven Circuit twenty eleven, United
States versus. Rourke, seventy four ft three D eight oh
(15:02):
two eight oh seven and dot five seven Circuit nineteen
ninety six. In any event, this Court need not engage
in a point by a point analysis of the merits
of an abby because it remains binding precedent see United
States versus Wilkerson, three sixty one f Dot three D
seven seventeen seven thirty two, Second Circuit, two thousand and four. Thus,
(15:24):
Epstein's NPA with the USAO SDFL does not bar this
prosecution of Maxwell, and Judge Nathan correctly denied the motions
to dismiss. All right, we're gonna wrap up right here
and then the next episode we'll pick up where we
left off, and that's with the District Court did not
abuse its discretion in declining to conduct a hearing. All
(15:46):
of the information that goes with this episode can be
found in the description box. What's up everyone, and welcome
back to the Epstein Chronicles. In this episode, we're gonna
pick up where we left off with the United States
brief and response to glaim Maxwell in her attempt at
an appeal number three. The District Court did not abuse
(16:06):
its discretion in declining to conduct a hearing. Finally, Maxwell
argues that the District Court erred by denying hermotions to
dismiss without an evidentiary hearing. But, as Judge Nathan explained,
the cases cited by Maxwell in support of her request
for a hearing mostly involved oral arguments where there was
no written record of the full set of terms reached
(16:29):
by the parties, and all of which involved defendants with
first hand knowledge of the negotiations. This is no such case.
The NPA's terms are clear. Furthermore, Maxwell had an unusually
large amount of information about the NPA's negotiation history in
the form of the OPR report, yet identifies no evidence
(16:49):
that the Department of Justice made any promises not contained
in the NPA here as below. Maxwell's further request for
a hearing rests on mere conjecture Judge Nathan did not
abuse her discretion. Point number two. The district court correctly
concluded that the charges were timely. In two thousand and three,
(17:10):
Congress extended the statue of limitations for offenses involving the
sexual or physical abuse of a minor to allow prosecution
so long as the victim remains alive. US Code eighteen,
Section thirty two, eighty three. Attempting to undermine the clear
legislative intent, Maxwell argues that the amendment did not apply
to her case because her crimes both predated the amendment
(17:32):
and did not involve sexual abuse. These arguments fly in
the face of the statutory text, legislative history, this Court's
own decisions, and the persuasive authority of other circuits. The
charges fell squarely within the amended statue of limitations, and
this Court should affirm Judge Nathan's well reasoned decisions denying
Maxwell's motions to dismiss the charges as untimely a applicable
(17:58):
law once standard of review. This Court reviews d. Novo
both the denial of a motion to dismiss an indictment
and the application of a statute of limitations. United States vers. Sampson,
eight ninety eight FT. Three d two seventy two, seventy six,
two seventy eight, Second Circuit twenty eighteen two statutes of
(18:20):
limitations for offenses against children US Code eighteen, section thirty
two eighty three and child abduction and sex offenses US
Code eighteen, Section thirty two, ninety nine. Most federal non
capital offenses carry a five year statute of limitations see
US Code eighteen, section thirty two eighty two A. In
(18:41):
nineteen ninety, Congress enacted a provision titled Extension of Child
Statute of Limitations, which provided that no statute of limitation
that would otherwise preclude prosecution for an offense involving the
sexual or physical abuse of a child under the age
of eighteen shall preclude such a prosecute US before the
child reaches the age of twenty five. The Crime Control
(19:04):
Act of nineteen ninety Pub. Dot L. Number one zero
one Dash six forty seven, Title two, Section two twenty
five A one oh four STA T four seven eight
nine four seven nine eight codified at US Code eighteen,
Section thirty five oh nine K nineteen ninety This provision
extended the federal criminal limitation period for child sex abuse offenses,
(19:28):
making it easier to prosecute offenders who commit sex crimes
that may be difficult to detect quickly. Winingarten versus the
United States eight sixty five f dot three D forty
eight fifty four, Second Circuit twenty seventeen. In nineteen ninety four,
Congress recodified this provision, moving it to US Code eighteen,
(19:49):
Section thirty two eighty three with identical language. Violent Crime
Control and Law Enforcement Act of nineteen ninety four, pub.
Dot L Number one zero three dashed THAE three two two,
Title thirty three, Section thirty three zero zero one eight
A Statute one oh eight seventeen ninety six two one
(20:09):
four nine, codified at US Code eighteen, Section thirty two
eighty three, nineteen ninety four. Within a decade, Congress began
to view even the extended Statute of Limitations period in
nineteen ninety four version of the thirty two eighty three
as inadequate in many cases because they were released from
criminal liabilities. Sex abusers whose crimes were not brought to
(20:32):
the attention of federal authorities until after their victims turned
twenty five Wingarten eight sixty five f dot three d
at fifty four. Accordingly, in two thousand and three, Congress
enacted a provision titled No Statute of Limitations for Child
Abduction and Sex Crimes, which amended section thirty two eighty
three to read, no statute of limitations that would otherwise
(20:55):
preclude prosecution foreign offense involving the sexual or physical abuse
or kidnapping of a child under the age of eighteen
shall preclude such prosecution during the life of the child.
Prosecutorial Remedies and Tools against the Exploitation of Children Today
Act of two thousand and three, The Protect Act pub L.
(21:15):
Number one zero eight twenty one Title two, Section two
two one seventeen Statute six fifty six sixty codified at
US Code eighteen, Section thirty two eighty three, two thousand
and three. In two thousand and six, Congress enacted a
provision titled Longer Statute of Limitations for Human Trafficking related
(21:35):
Offenses and subtitled modification of Statute Applicable to Offense against Children,
which further amended section thirty two eighty three to its
current form to permit the prosecution of such offenses during
the lifetime of the victim or ten years after the offense,
whichever is longer. Violence against Women and Department of Justice
(21:56):
Reauthorization Act of two thousand and six pub dot x L.
Number one oh nine tosh one sixty two, Title eleven,
Section eleven eighty two C one nineteen Statute twenty nine
sixty thirty one twenty six, codified at US Code eighteen,
Section thirty two eighty three, two thousand six. Later, in
(22:17):
two thousand and six, Congress enacted US Code eighteen, section
thirty two ninety nine in a provision titled no Limitation
for Prosecution of Felony sex Offenses, which provides that, notwithstanding
any other law, an indictment may be found or any
information instituted, at any time without limitation for any offense
under Section twelve oh one involving a minor victim, and
(22:40):
for any felony under Chapter one oh nine A and ten,
except for Section twenty two fifty seven and twenty two
fifty seven A or one seventeen or Section fifteen ninety one.
The Adam Walsh Child Protection and Safety Act of two
thousand and six Pub. Dot L. Number one on nine Nineash.
Two forty eight, Title two, Section two eleven one one
(23:04):
twenty Statute five eighty seven six sixteen codified at US
Code eighteen, Section thirty two ninety nine two thousand six. Sec.
Three Retroactivity under landgraph in Land Graph versus USI Film Products,
five eleven US two forty four, nineteen ninety four. The
Supreme Court set fourth to two part framework for determining
(23:27):
whether a statute may be applied retroactively. At the first step,
if Congress expressly prescribed that a statute applies retroactively to
the antecedent conduct, the inquiry ends in the Court enforces
the statute as it is written, save for constitutional concerns.
Winngarten eight sixty five ft three d At fifty four
(23:47):
and fifty five. If, however, the statute is ambiguous or
contains no express command regarding retroactivity, then the court must
turn to the second step, where a reviewing court must
determine whether a applying the statute to the antecedent conduct
would create presumptively in permissible retroactive effects idea. Fifty five.
(24:08):
If it would, then the court shall not apply the
statute retroactively absent clear congressional intent to the contrary. If
it would not, then the court shall apply the statute
to antecedent conduct. Be the discussion one, there was no
impermissible retroactivity in applying Section thirty two eighty three to Maxwell.
(24:28):
Maxwell's claims that the district Court aired by applying section
thirty two eighty three's two thousand and three amendment to
her six counts of conviction ie Counts three, four, and
six because they involve conduct that predated the amendment as
an initial matter. This argument ignores the fact that counts
three and six both charge continuing offenses that continued into
(24:51):
two thousand and four, thus post dating Section thirty two
eighty three's amendment. Moreover, under the lang graph framework in
the two thousand and three Amendment properly applies to pre
enactment criminal conduct that still could have been timely prosecuted
at the time of the enactment, As was the case
here a, there was no retroactivity as to count three
(25:13):
and six as an initial matter. Counts three and six
both charge conduct that continued through two thousand and four,
i e. After the two thousand and three Amendment to
section thirty two eighty three, and thus present no retroactivity
concerns for conspiracy charges requiring proof of an overt act,
(25:33):
including US Code eighteen, Section three seventy one, the conspiracy
statute at issue here. The statute of limitations runs from
the date of the last overt act in furtherance of
the conspiracy United States versus. Monaco one ninety four F.
Dot three d three eighty one, three eighty seven and
dot two, Second Circuit, nineteen ninety nine, according to the
(25:55):
United States versus ben Zivi two forty two F. Dot
three d eighty nine ninety seven, Second Circuit, two thousand
and one. Similarly, for a continuing substantative offense, the statute
of limitations only begins to run out when the crime
is complete, meaning when the conduct has run its course.
United States versus Epulido five forty three ft three D.
(26:17):
Twenty five forty six, Second Circuit, two thousand and eight.
Here the indictment alleges the conspiracy charged and counts three
and the sex trafficking offense charged in count six continued
through two thousand four A one twenty seven through one
thirty two. See also A one twenty three and one
twenty four one thirty one thirty two describing conduct through
(26:40):
two thousand and four involving victim four. Thus, the statute
of limitations for these two counts did not begin to
run until two thousand and four, well after Congress enacted
the two thousand and three Amendment to section thirty two
eighty three. Maxwell's arguments about retroactivity are therefore inapplicable to
count three and six. All Right, folks, we're gonna wrap
(27:02):
up this episode here and in the next episode discussing
the topic, we're gonna pick up where we left off,
and that's with applying section thirty two eighty three to
Maxwell complies with landgraph. All of the information that goes
with this episode can be found in the description box
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