Ghislaine Maxwell Supreme Court petition

No. 24-____ WILSON-EPES PRINTING CO., INC. - (202) 789-0096 - WASHINGTON, D.C. 20002 IN THE Supreme Court of the United States GHISLAINE MAXWELL, AKA SEALED DEFENDANT 1, Petitioner, v. UNITED STATES OF AMERICA, Respondent. On Petition for Writ of Certiorari to the United States Court of Appeals for the Second Circuit PETITION FOR WRIT OF CERTIORARI DAVID OSCAR MARKUS Counsel of Record MARKUS/MOSS PLLC 40 N.W. Third Street Penthouse One Miami, FL 33128 (305) 379-6667 dmarkus@markuslaw.com Counsel for Petitioner April 10, 2025 (i) QUESTION PRESENTED This Court long has recognized that "when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." Santobello v. New York, 404 U.S. 257 (1971). And, of course, it is well settled that plea agreements and non-prosecution agreements are interpreted using ordinary principles of contract construction, requiring that the plain language of the agreement must govern interpretation and that ambiguities must be resolved against the Government. Nevertheless, Circuits are split on whether promises in a plea agreement in one district on behalf of the "United States" or the "Government" binds the Government in other districts. The question presented here is: Under Santobello and common principles of contract interpretation, does a promise on behalf of the "United States" or the "Government" that is made by a United States Attorney in one district bind federal prosecutors in other districts? ii PARTIES TO THE PROCEEDING Petitioner Ghislaine Maxwell was the Defendant in the district court and the Appellant in the Second Circuit. Respondent is the United States. RELATED PROCEEDINGS This case arises from the following proceedings: • United States v. Maxwell, 118 PROT1 256 (2d Cir. 2024), reh'g denied, November 25, 2024. Judgment entered September 17, 2024. • United States v. Maxwell, 534 PROT2. 3d 299 (S.D.N.Y. 2021). (iii) TABLE OF CONTENTS Page QUESTION PRESENTED.................................. i PARTIES TO THE PROCEEDINGS.................. ii RELATED PROCEEDINGS ............................... ii TABLE OF AUTHORITIES................................ vi OPINIONS BELOW............................................ 1 JURISDICTION .................................................. 1 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED...... 1 STATEMENT OF THE CASE ............................ 1 PROCEDURAL BACKGROUND ....................... 2 A. Entry of the Non-Prosecution Agree￾ment........................................................... 2 B. Criminal Proceedings in the District C. The Second Circuit's Decision .................. 6 REASONS FOR GRANTING THE PETITION.. 7 I. The circuits are split as to whether a promise on behalf of the "United States" or the "Government" by a United States Attorney's office in one district is binding upon United States Attorney's offices in other districts............................................ 7 iv TABLE OF CONTENTS - Continued Page A. The Third, Fourth, Eighth and Ninth Circuits have faithfully applied Santobello's instruction that promises in plea agreements must be binding on the government, applying basic principles of contract law to find that obligations entered into on behalf of the "United States" or the "Government" apply to the federal government throughout the nation .... 9 B. The Second and the Seventh Circuits apply the opposite presumption. They refuse to enforce a promise made on behalf of the "United States" or "the Government" except against the particular United States Attorney's office which entered into the agreement, unless the agreement expressly reiterates that the term "United States" does in fact mean the entire country as a whole .................... 11 II. The Second Circuit's decision below is wrong and violates the principles set forth in this Court's prior opinions .......... 12 A. Both Annabi and the opinion below were wrongly decided under Santobello and Giglio .......................... 13 B. Ordinary principles of contract interpretation compel Annabi and Maxwell to be reversed........................ 14 v TABLE OF CONTENTS - Continued Page C. The available evidence suggests that the NPA was meant to bind the Southern District of New York ........... 16 III. This case is an ideal vehicle for resolving the split over this important and recurring question .................................... 19 CONCLUSION .................................................... 19 APPENDIX vi TABLE OF AUTHORITIES CASES Page(s) Giglio v. United States, 405 U.S. 150 (1972)............................... 8, 13, 14 Commonwealth v. Cosby, 666 Pa. 416, 252 A.3d 1092 (Pa. 2021)..... 14 In re Altro, 180 PROT3 372 (2d Cir. 1999) ...................... 16 Margalli-Olvera v. Immigration and Naturalization Service, 43 PROT4 345 (8th Cir. 1994)....................... 10, 15 Santobello v. New York, 404 U.S. 257 (1971)................................. 7, 8, 13 Thomas v. Immigration and Naturalization Service, 35 PROT5 1332 (9th Cir. 1994)..................... 10, 11 Thompson v. United States, 431 F. App'x 491 (7th Cir. 2011) .............. 12, 16 United States v. Annabi, 771 PROT6. 670 (2d Cir. 1985) ..... 6, 11, 12, 16, 18 United States v. Carmichael, 216 PROT7 224 (2d Cir. 2000) ...................... 16 United States v. Carter, 454 PROT8 426 (4th Cir. 1972)..................... 9, 10 United States v. Gebbie, 294 PROT9 540 (3d Cir. 2002) ...................... 9 United States v. Johnston, 199 PROT10 1015 (9th Cir. 1999)................... 11 United States v. Jordan, 509 PROT11 191 (4th Cir. 2007)..................... 14 vii TABLE OF AUTHORITIES - Continued Page(s) United States v. Maxwell, 118 PROT12 256 (2d Cir. 2024).... 1, 6, 8, 12, 16-18 United States v. Maxwell, 534 PROT13. 3d 299 (S.D.N.Y. 2021)........ 1 United States v. McDowell, No. 94-CR-787-1, 2006 WL 1896074 (N.D. Ill. 2006) .......................................... 12 United States v. O'Doherty, 64 PROT14 209 (7th Cir. 2011)....................... 16 United States v. Rubbo, 396 PROT15 1330 (11th Cir. 2005)................. 15 United States v. Transfiguracion, 442 PROT16 1222 (9th Cir. 2006)................... 16 United States v. Van Thournout, 100 PROT17 590 (8th Cir. 1996)..................... 10, 14 United States v. Warner, 820 PROT18 678 (4th Cir. 2016)..................... 14 United States v. Williams, 102 PROT19 923 (7th Cir. 1996)..................... 14, 15 STATUTES 18 PROT20. § 2255 ........................................... 2, 15 28 PROT21. § 1254(l)........................................ 1 RULES Fed. R. Civ. P. 35(b)...................................... 12 viii TABLE OF AUTHORITIES - Continued OTHER AUTHORITIES Page(s) Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (2012) .................................... 15, 17 U.S. Dept. of Justice, Justice Manual (updated Feb. 2018), https://www.just ice.gov/jm/jm-9-27000-principles-federal￾prosecution................................................ 18 PETITION FOR WRIT OF CERTIORARI Ghislaine Maxwell respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Second Circuit. OPINIONS BELOW The opinion of the Second Circuit (App.1) is reported at United States v. Maxwell, 118 PROT22 256 (2d Cir. 2024). The Second Circuit's order denying Maxwell's petition for rehearing en banc (App.92) is not pub￾lished in the Federal Reporter. The district court's order denying Maxwell's motion to dismiss (App.52) is available at United States v. Maxwell, 534 PROT23. 3d 299 (S.D.N.Y. 2021). JURISDICTION The Second Circuit issued its opinion on September 17, 2024. Maxwell's motion for en banc review was denied on November 25, 2024. This Court has jurisdiction under 28 PROT24. § 1254. CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED There are no pertinent constitutional or statutory provisions involved in the matter at issue in this case. STATEMENT OF THE CASE Despite the existence of a non-prosecution agree￾ment promising in plain language that the United States would not prosecute any co-conspirator of Jeffrey Epstein, the United States in fact prosecuted Ghislaine Maxwell as a co-conspirator of Jeffrey Epstein. Only because the United States did so in the Second Circuit and not elsewhere, her motion to dismiss the 2 indictment was denied, her trial proceeded, and she is now serving a 20 year sentence. In light of the disparity in how the circuit courts interpret the enforceability of a promise made by the "United States," Maxwell's motion to dismiss would have been granted if she had been charged in at least four other circuits (plus the Eleventh, where Epstein's agreement was entered into). This inconsistency in the law by which the same promise by the United States means different things in different places should be addressed by this Court. PROCEDURAL BACKGROUND A. Entry of the Non-Prosecution Agreement. In September 2007, after an extended period of negotiation with high-level representatives of the United States that included Main Justice, Jeffrey Epstein entered into a non-prosecution and plea agreement ("NPA") with the United States Attorney's Office for the Southern District of Florida. (App.24- 38). In return for pleading guilty to state charges in Florida, receiving and serving an eighteen-month sentence, and consenting to jurisdiction and liability for civil suits under 18 PROT25. § 2255, the United States agreed not to prosecute Epstein in the Southern District of Florida for the offenses from 2001-2007 then under investigation. In addition, after lengthy negotiations, the United States agreed that "[i]n consideration of Epstein's agreement to plead guilty and provide compensation in the manner described above, if Epstein successfully fulfills all of the terms of this agreement, the United States also agrees that it will not institute any criminal charges against any potential co-conspirators of Epstein, including but not limited to [four named individuals]." (App.30-31). 3 This co-conspirator clause, containing no geographic limitation on where in the United States it could be enforced, was actively negotiated at the same time as the terms of Epstein's protection for his own criminal prosecution, which was expressly limited to a bar on prosecutions in the Southern District of Florida only (App.26). A previous version of the co-conspirator language limited it to the Southern District of Florida before it was amended to refer more broadly to the "United States," and the co-conspirator clause was relocated in the document. (App.95, 108-126). The NPA also contained an express recitation that it was not binding on the State Attorney's office in Florida (App.30), but it contained no such recitation setting forth that it was not binding on other United States Attorney's offices. Relying on the NPA, Epstein pleaded guilty in Florida state court on June 30, 2008, and fulfilled all his obligations under the NPA. B. Criminal Proceedings in the District Court. In July 2019, Epstein was indicted in the Southern District of New York on charges of sex trafficking and conspiracy related to conduct in Florida and New York between 2003 and 2005. The NPA did not pose an impediment to this indictment because Epstein's protection therein had been limited to charges brought in the Southern District of Florida. Epstein died while incarcerated on August 10, 2019. One year later, after Epstein died in jail, Ghislaine Maxwell was indicted in the Southern District of New York for her alleged actions as a co-conspirator of Epstein, on charges that were the same as had been brought against Epstein. Initially, Maxwell was charged with crimes in the 1994 to 1997 timeframe, 4 presumably in an effort to circumvent the time frame covered by the NPA. On March 29, 2021, the government added in its superseding indictment an alleged sex trafficking offense (Count Six) related to conduct and offenses wholly within the timeframe and subject matter cov￾ered by the NPA. The sole complainant to the allega￾tions in Count Six had been presented to the Grand Jury in the Southern District of Florida and her evidence formed the basis of a conspiracy charge and a sex trafficking charge in a proposed indictment of Epstein that was dropped pursuant to the terms of the NPA. Thus, the complainant's allegations were part of those for which Epstein pleaded guilty and paid restitution, in exchange (in part) for his co￾conspirators to be immune from prosecution. Maxwell moved to dismiss based on the express plain language of the NPA which precluded charges by the United States against any co-conspirator of Epstein: In consideration of Epstein's agreement to plead guilty and to provide compensation in the manner described above, if Epstein successfully fulfills all the terms and condi￾tions of this agreement, the United States also agrees that it will not institute any criminal charges against any potential co-conspirators of Epstein, including but not limited to [four named individuals]... (App.30-31) (emphasis added). Alternatively, Maxwell sought discovery and a hearing to establish affirma￾tive evidence of intent to bind the United States as a whole. 5 Maxwell's motion was denied without a hearing. Although the district court did not order discovery, it did order the government to disclose to Maxwell "any evidence supporting a defense under the NPA." The government responded that its review "did not include search terms relevant to the NPA, and the Government has not searched [the SDFL prosecutor's] inbox for communications relating to the NPA." It also stated that it did not intend to request or review emails for any other USAO-SDFL or Department of Justice attorney or otherwise perform a comprehen￾sive review of the internal e-mails of that prosecutor's office from its wholly separate investigation, including by asking for any other material gathered by OPR as part of its investigation. The District Court found that Maxwell was a beneficiary of the NPA and had standing to enforce its terms, but concluded that the NPA did not grant immunity to Maxwell in the Southern District of New York. The case proceeded to trial and the jury found Maxwell guilty on, inter alia, Count Six. (App.39). She was sentenced to a 240 month (20 year) term of incarceration. (App.41). In 2019, the Department of Justice Office of Profes￾sional Responsibility ("OPR") issued a lengthy report on its extensive investigation into whether the federal government's 2007-08 resolution of the federal inves￾tigation of Epstein through the NPA was improper. See Appendix F, Excerpts of the Department of Justice Office of Professional Responsibility Report (App.93). OPR's investigation overlapped the prosecutions of Epstein and Maxwell in the Southern District of New York. The OPR report did not contain a finding as to whether the co-conspirator clause of the NPA bound districts other than the Southern District of 6 Florida, but it reported that "witnesses" (none of whom were on the defense side) stated that the clause provided transactional immunity and that it "found no policy prohibiting a U.S. Attorney from declining to prosecute third parties or providing transactional immunity." (App.128-129). C. The Second Circuit's Decision. On appeal, Maxwell argued that the NPA barred her prosecution in the Southern District of New York by its express language. The Second Circuit disagreed, affirming the district court's opinion that under United States v. Annabi, 771 PROT26. 670, 672 (2d Cir. 1985), the co-conspirator clause in the NPA did not preclude Maxwell's prosecution in the Southern District of New York notwithstanding that the clause expressly stated that the "United States" is barred from such a prosecution. United States v. Maxwell, 118 PROT27 256 (2d. Cir. 2024). The court applied Annabi even though the NPA had been negotiated in the Eleventh Circuit where no similar precedent exists or applies. The parties certainly expected that the law of the Eleventh Circuit, where the NPA was entered into, would apply. Nevertheless, quoting Annabi, the Second Circuit held that "[a] plea agreement binds only the office of the United States Attorney for the district in which the plea is entered unless it affirmatively appears that the agreement contemplates a broader restriction." Id. at 263. The court found that neither the text of the NPA nor the "negotiation history" showed that the co-conspirator clause was "meant to" bind other dis￾tricts, even though the clause contains no limiting language and even though government witnesses told OPR that the clause was, in fact, meant to provide transactional immunity. (App.128). 7 Maxwell moved for rehearing en banc, which was denied. (App.92). REASONS FOR GRANTING THE PETITION This case is the perfect vehicle for resolving an acknowledged circuit split over the proper application of this Court's precedent regarding an important issue of federal criminal law. Despite the fact that the term "United States" has a widely accepted meaning in perhaps every other context, when this term is used in a plea agreement, it means something different in New Jersey than it does across the river in New York City. A criminal defendant who, after receiving a promise that he will not be prosecuted again by the United States, pleads guilty to resolve all criminal liability, is not in fact resolving all criminal liability because the United States remains free to prosecute him anew so long as it does so in the Second or Seventh Circuits. This Court should resolve this conflict, ensuring that plea agreements are enforced consistently throughout the United States so that when the United States makes a promise in a plea agreement, it is held to that promise. I. The circuits are split as to whether a promise on behalf of the "United States" or the "Government" by a United States Attorney's office in one district is binding upon United States Attorney's offices in other districts. In Santobello v. New York, 404 U.S. 257 (1971), this Court held that a prosecutor's promise in a plea agreement binds other prosecutors, even those who might have been unaware of the promise. 404 U.S. at 262. "Th[e] circumstances will vary, but a constant 8 factor is that, when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." Id. And in Giglio v. United States, this Court found that "the prosecutor's office is an entity and as such it is the spokesman for the Government. A promise made by one attorney must be attributed, for these purposes, to the Government." Giglio v. United States, 405 U.S. 150, 154 (1972). Yet despite this binding precedent, the Second Circuit refuses to hold its United States prosecutors to the promises that other United States prosecutors have made on behalf of the United States, instead clinging to the position that a plea agreement binds only the district in which it was entered unless it expressly states otherwise, even if the promise is made on behalf of the "United States." (App.8-12). The Seventh Circuit similarly applies a narrow interpreta￾tion of who is bound by a pledge on behalf of the "United States" or the "Government." This policy jeop￾ardizes the integrity of the plea negotiation process nationwide, which is "an essential component of the administration of justice" that "presuppose[s] fairness in securing agreement between an accused and a prosecutor." Santobello, 404 U.S. at 261. The Second and Seventh Circuit's policy is squarely in conflict with that of the Third, Fourth, Eighth and Ninth Circuits, creating a circuit split with nationwide ramifications pursuant to which the same plea agree￾ment can receive a different interpretation throughout the country on one of its most fundamental aspects (a defendant's potential future criminal liability). This case provides an ideal opportunity to resolve this 9 circuit split regarding an important issue of federal criminal law. A. The Third, Fourth, Eighth and Ninth Cir￾cuits have faithfully applied Santobello's instruction that promises in plea agree￾ments must be binding on the government, applying basic principles of contract law to find that obligations entered into on behalf of the "United States" or the "Government" apply to the federal government through￾out the nation. Third Circuit. In United States v. Gebbie, 294 PROT28 540 (3d Cir. 2002), the Third Circuit squarely addressed the question of "whether promises made on behalf of 'the Government' or 'the United States' by a United States Attorney to a defendant bind other United States Attorneys with respect to the same defendant." Id. at 546-47. After recognizing that the Second and Fourth Circuits "employ opposite default rules" from one another, id. at 547, the Third Circuit agreed with the Fourth Circuit and held that "when a United States Attorney negotiates and contracts on behalf of 'the United States' or 'the Government' in a plea agreement for specific crimes, that attorney speaks for and binds all of his or her fellow United States Attorneys with respect to those same crimes and those same defendants." Id. at 550. It went on to note that "United States Attorneys should not be viewed as sovereigns of autonomous fiefdoms. They represent the United States, and their promises on behalf of the Government must bind each other absent express contractual limitations or disavowals to the contrary." Id. Fourth Circuit. The Fourth Circuit, in United States v. Carter, 454 PROT29 426 (4th Cir. 1972), was the 10 first to hold that a promise on behalf of the United States in one district not to prosecute a defendant is binding upon U.S. Attorney's offices in other districts. Id. at 428. As that court noted, "[t]he United States government is the United States government through￾out all of the states and districts. . . . A contrary result would constitute a strong deterrent to the willingness of defendants accused of multistate crimes to cooperat￾ing in speedy disposition of their cases and in appre￾hending and processing codefendants" Id. The Fourth Circuit concluded, "[a]t stake is the honor of the government[,] public confidence in the fair admin￾istration of justice, and the efficient administration of justice in a federal scheme of government." Id. Eighth Circuit. The Eighth Circuit similarly found in United States v. Van Thournout, 100 PROT30 590 (8th Cir. 1996), that "absent an express limitation, any promises made by an Assistant United States Attorney in one district will bind an Assistant United States Attorney in another district." Id. at 594. Inter￾preting a plea agreement which provided that the "United States" would make certain recommendations regarding the defendant's sentence, the court held that this provision was binding on the U.S. Attorney's office in another district and that the terms of the agreement should be enforced. See also Margalli￾Olvera v. Immigration and Naturalization Service, 43 PROT31 345, 352 (8th Cir. 1994) (finding that "the term 'United States' is a reference to the entire United States government and all the agencies hereof" in the context of determining that the INS is bound by promises made by the U.S. Attorney's office). Ninth Circuit. In Thomas v. Immigration and Naturalization Service, 35 PROT32 1332 (9th Cir. 1994), the Ninth Circuit held that a promise made by the 11 U.S. Attorney's Office on behalf of the "Government" (defined in that agreement to include its "depart￾ments, officers, agents, and agencies") binds not just the office of the U.S. Attorney but also the Immigration and Naturalization Service. 35 PROT33 at 1337-38. Although the plea agreement in that case defined broadly that all governmental agencies would be bound, the Ninth Circuit cited approvingly to the broader proposition that "the United States govern￾ment as a whole uses United States Attorneys as its authorized agents to negotiate plea bargains in criminal cases, so their authorized agreements bind the government as a whole." Id. at 1340. See also United States v. Johnston, 199 PROT34 1015, 1020-21 (9th Cir. 1999) (recognizing that although a plea agreement which specifically and expressly limits a non-prosecution promise to a particular U.S. attor￾ney's office is enforceable only against that office, this is an exception to the general principle that a plea agreement is binding upon all districts). B. The Second and the Seventh Circuits apply the opposite presumption. They refuse to enforce a promise made on behalf of the "United States" or "the Government" except against the particular United States Attorney's office which entered into the agreement, unless the agreement expressly reiterates that the term "United States" does in fact mean the entire country as a whole. Second Circuit. In the decision below, in reliance on Annabi, 771 PROT35 670, the Second Circuit held that the government's promise that the "United States" would not prosecute any of the defendant's co-conspirators was only enforceable in the Southern 12 District of Florida, and not in the Southern District of New York. United States v. Maxwell, 118 PROT36 256, 261 (2d Cir. 2024). The Maxwell court found that it must "affirmatively appear[] that the agreement contemplates a broader restriction" in order for the "United States" to mean the country as a whole, even if entered into in a district in which the term "United States" does, in fact, mean the country as a whole. Id. at 263. Seventh Circuit. Although the Seventh Circuit has not considered the question presented in the specific context of the enforceability of a promise made in a plea agreement against a different U.S. Attorney's office, it has held in a related context that "[a] prosecutor's agreement will not bind more than the office of the United States Attorney unless the promise explicitly contemplates 'a broader restriction.'" Thompson v. United States, 431 F. App'x 491, 493 (7th Cir. 2011) (finding that a promise on behalf of the government by a prosecutor would not bind the INS). See also United States v. McDowell, No. 94-CR-787-1, 2006 WL 1896074 (N.D. Ill. 2006) (finding in the context of Rule 35(b) motions that "a United States Attorney has sole authority to bind his own office" only and lacks authority to compel a U.S. Attorney in another district to file a Rule 35(b) motion). II. The Second Circuit's decision below is wrong and violates the principles set forth in this Court's prior opinions. The opinion below, which is based on the Second Circuit's prior holding in Annabi, is wrongly decided and should not stand. Rather than the Second Circuit's default rule that a promise made on behalf of the United States does not bind the United States as a whole, the default rule should be that a promise 13 made on behalf of the United States binds the entire United States unless it says so affirmatively (as, in fact, the agreement at issue here did for Epstein himself, but not for his co-conspirators). As set forth above, this is consistent with Santobello and Giglio, and with ordinary principles of contract interpreta￾tion. And it is the only principled way to interpret the plain language of this agreement, as well as the available information on the parties' intent. A. Both Annabi and the opinion below were wrongly decided under Santobello and Giglio. It is impossible to square the Second and Seventh Circuit's policies on plea agreement interpretation with this Court's holdings in Santobello. As this Court correctly determined in that case, "when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." 404 U.S. at 262. There is perhaps no promise the government makes within a plea agreement that is more fundamental than the promise that by pleading guilty, the defend￾ant is resolving his or her legal culpability for the conduct at issue, and that after accepting and serving the penalty contemplated in the agreement, he or she can move forward without fear of additional prosecu￾tion for that conduct. A defendant should be able to rely on a promise that the United States will not prosecute again, without being subject to a gotcha in some other jurisdiction that chooses to interpret that plain language promise in some other way. Only in this way can the pronouncement of Giglio be upheld, for "the prosecutor's office is an entity and as such it is the spokesman for the Government. A promise made 14 by one attorney must be attributed, for these purposes, to the Government." Giglio, 405 U.S. at 154. See also Commonwealth v. Cosby, 666 Pa. 416, 481-82, 252 A.3d 1092, 1131 (Pa. 2021) (finding by the Pennsylva￾nia Supreme Court that a promise made by a prior prosecutor was binding on a subsequent one because "[a]s prosecutors are vested with such 'tremendous' discretion and authority, our law has long recognized the special weight that must be accorded to their assurances."). B. Ordinary principles of contract interpre￾tation compel Annabi and Maxwell to be reversed. A plea agreement is a contract and is to be inter￾preted according to ordinary contract principles. See, e.g., United States v. Williams, 102 PROT37 923, 927 (7th Cir. 1996); United States v. Warner, 820 PROT38 678, 683 (4th Cir. 2016); Van Thournout, 100 PROT39 at 594. In fact, in interpreting plea agreements, these ordi￾nary contract principles are to be employed even more strongly in favor of the defendant because they "are supplemented with a concern that the bargaining process not violate the defendant's right to fundamen￾tal fairness under the Due Process Clause." Williams, 102 PROT40 at 927 (internal quotation omitted). See also United States v. Jordan, 509 PROT41 191, 195-96 (4th Cir. 2007); Van Thournout, 100 PROT42 at 594. Pursuant to these standards of interpretation, words within a contract are to be afforded their ordinary meaning. And to the extent that there is an ambiguity, such an ambiguity is to be construed against the government.1 1 In addition, as discussed below as to the particular plea agreement at issue in this case, the contract interpretation principle known as expressio unius est exclusio alterius compels a 15 As to the first and most basic of these principles, terms within a plea agreement are to be given their ordinary meaning. See, e.g., Williams, 102 PROT43 at 927; Margalli-Olvera, 43 PROT44 at 352; United States v. Rubbo, 396 PROT45 1330, 1334 (11th Cir. 2005). See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts at 69 (2012) ("The ordinary meaning rule is the most fundamental semantic rule of interpretation.") It should be beyond reasonable dispute that the ordinary meaning of the term "the United States" is the country as a whole. This leads to the presumption that if a plea agreement states that the "United States" cannot further prose￾cute an individual, this means that the United States cannot do so anywhere in the United States. If that is not what is intended, and the intent is to bind only a particular district, this can easily be achieved by using the ordinary descriptors for that district. Second, the placement of language informs the in￾tent of the parties. During the course of the NPA negotiations, the co-conspirator immunity clause was severed from Epstein's immunity clause and moved geographically to the end of the NPA after the 2255 section. This is significant because the 2255 sections "were not limited to any district." The 2255 section and the co-conspirator clause were negotiated in tandem and the 2255 language was accepted in return for the global immunity provided to the co-conspira￾tors. The co-conspirator clause was subsequently severed from Epstein's restrictive language and moved geographically below the 2255 as a consequence. The NPA was identified as a hybrid agreement where one section referred to the district-specific language and finding that the NPA precludes Maxwell's prosecution in this case. 16 the other was the more expansive global federal part of the NPA. Third, as every circuit recognizes (including the Second and Seventh), it is a well- settled proposition that ambiguities in a plea agreement are to be resolved against the government. See, e.g., In re Altro, 180 PROT46 372, 375 (2d Cir. 1999); United States v. Carmichael, 216 PROT47 224 (2d Cir. 2000) ("[W]e 'construe plea agreements strictly against the Government.'") (inter￾nal citation omitted); United States v. O'Doherty, 64 PROT48 209, 217 (7th Cir. 2011); United States v. Transfiguracion, 442 PROT49 1222, 1229 (9th Cir. 2006). Annabi, Thompson, and the opinion below flip this guidepost on its head, holding that a promise of immunity from prosecution by "the United States" is to be construed against the defendant. 771 PROT50 at 672; 431 Fed. Appx. 492 (App.8). If it is not in fact clear on its face that the United States means the United States as a whole, at most the intent in using this term is ambiguous. Because such ambiguity is to be resolved in favor of the defendant and against the government, 180 PROT51 at 375, the majority interpretation that the United States refers to the country as a whole is correct and the opinion below must be reversed. C. The available evidence suggests that the NPA was meant to bind the Southern District of New York. Despite the Second Circuit's conclusion below that the text and the negotiating history of this NPA suggest an intent to bind only the Southern District of Florida, (App.10), the opposite is true. First, the contractual interpretation principle known as expressio unius est exclusio alterius compels the 17 determination that the NPA precludes Maxwell's prosecution in New York. As the Second Circuit itself noted, although the co-conspirator clause at issue here is "silent" as to whether it intended to preclude co-conspirator prosecution outside the Southern District of Florida, it is not silent as to whether Epstein's future prosecution is limited to the Southern District of Florida. Instead, "the NPA makes clear that if Epstein fulfilled his obligations, he would no longer face charges in that district." (App.9, emphasis in original). The use of narrowing terms as to Epstein's protections, not but not as to co-conspirator protec￾tions, demonstrates that the difference was inten￾tional. See Scalia & Garner, Reading Law: The Interpretation of Legal Texts at 167 ("The whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other."); Id. at 170 (("[A] material variation in terms suggests a variation in meaning."). This intent should have been recognized. Second, the NPA was entered into after extensive negotiation. The language was hotly contested and subject to much revision back and forth, including specifically on the relevant language of the coconspira￾tor clause. (App.95, 108-126). In one of the earlier drafts, the government proposed language that the co-conspirator protection would be limited to the Southern District of Florida. (App.117). Yet the final draft eliminated the limitation to the Southern District of Florida and referred only to the United States. (App.122-24). The OPR report found that gov￾ernment witnesses (who were the only witnesses OPR spoke to) believed the co-conspirator clause was in￾tended to provide transactional immunity. (App.128- 129). This understanding, supported by the NPA itself and the negotiation history contained in the one-sided 18 OPR report, precludes application of Annabi in this case because the intent to bind the United States as a whole, and not just the Southern District of Florida, is clear. Third, the Second Circuit misplaced its reliance on a selective reading of the Judiciary Act of 1789 and the United States Attorneys' Manual to conclude that United States Attorneys are "cabined to their specific district unless otherwise directed." 118 PROT52 at 265. Yet the Second Circuit ignored the Manual's admoni￾tion that United States Attorneys who do not wish to bind other districts should explicitly limit the scope of a non-prosecution agreement to their districts. U.S. Dept. of Justice, Justice Manual (updated Feb. 2018), https://www.justice.gov/jm/jm-9-27000-principles-fede ral-prosecution. The existence of this provision reveals that AUSAs can bind other districts and that it is the obligation of the government to make explicit any limitation in the scope of immunity, and not the other way around. Fourth, the recitals of the NPA reveal that the intent was for a broad, complete resolution of the matters addressed by the agreement. The NPA states that "Epstein seeks to resolve globally his state and federal criminal liability." (App.25). It also states that "the interests of the United States, the State of Florida, and the Defendant will be served" by the agreement. (App.25-26, emphasis added). The recitals do not refer to the specific interests of the Southern District of Florida at all. 19 III. This case is an ideal vehicle for resolving the split over this important and recurring question. This case is especially worthy of review because it cleanly presents the issue at hand, which is ripe for this Court's attention. In this case, the government made a written promise that Epstein's co-conspirators would not be prosecuted by the United States, and Maxwell was in fact prosecuted as a co-conspirator of Epstein by the United States. The only question is whether the government's promise that the "United States" would not prosecute her was enforceable against the U.S. Attorney's office in New York, or only against the Southern District of Florida. The circuit split on this issue is well developed and ripe for the Court's review. CONCLUSION For the foregoing reasons, this Court should grant the petition for certiorari. Respectfully submitted, DAVID OSCAR MARKUS Counsel of Record MARKUS/MOSS PLLC 40 N.W. Third Street Penthouse One Miami, FL 33128 (305) 379-6667 dmarkus@markuslaw.com Counsel for Petitioner April 10, 2025 APPENDIX APPENDIX TABLE OF CONTENTS Page APPENDIX A: OPINION, U.S. Court of Appeals for the Second Circuit (September 17, APPENDIX B: NON-PROSECUTION AGREE￾MENT, Office of the U.S. Attorney for the Southern District of Florida (October 30, 2007) . 24a APPENDIX C: JUDGMENT, U.S. District Court for the Southern District of New York (June 29, 2022) ................................................... 39a APPENDIX D: OPINION AND ORDER, U.S. District Court for the Southern District of New York (April 16, 2021) ........................................... 52a APPENDIX E: ORDER, U.S. Court of Appeals for the Second Circuit (November 25, 2024) ...... 92a APPENDIX F: Excerpts of the Department of Justice Office of Professional Responsibility Report (November 2020) ..................................... 93a 1a APPENDIX A IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT AUGUST TERM 2023 No. 22-1426-cr UNITED STATES OF AMERICA, Appellee, v. GHISLAINE MAXWELL, also known as Sealed Defendant 1, Defendant-Appellant. On Appeal from the United States District Court for the Southern District of New York ARGUED: MARCH 12, 2024 DECIDED: SEPTEMBER 17, 2024 Before: CABRANES,WESLEY, and LOHIER, Circuit Judges. Defendant Ghislaine Maxwell appeals her June 29, 2022, judgment of conviction in the United States District Court for the Southern District of New York (Alison J. Nathan, Judge). Maxwell was convicted of conspiracy to transport minors with intent to engage in criminal sexual activity in violation of 18 PROT53. § 371; transportation of a minor with intent to engage in criminal sexual activity in violation of 18 PROT54. 2a § 2423(a); and sex traffcking of a minor in violation of 18 PROT55. § 1591(a) and (b)(2). She was principally sentenced to concurrent terms of imprisonment of 60 months, 120 months, and 240 months, respectively, to be followed by concurrent terms of supervised release. On appeal, the questions presented are whether (1) Jeffrey Epstein's Non-Prosecution Agreement with the United States Attorney's Offce for the Southern District of Florida barred Maxwell's prosecution by the United States Attorney's Offce for the Southern District of New York; (2) a second superseding indict￾ment of March 29, 2021, complied with the statute of limitations; (3) the District Court abused its discretion in denying Maxwell's Rule 33 motion for a new trial based on the claimed violation of her Sixth Amend￾ment right to a fair and impartial jury; (4) the District Court's response to a jury note resulted in a construc￾tive amendment of, or prejudicial variance from, the allegations in the second superseding indictment; and (5) Maxwell's sentence was procedurally reasonable. Identifying no errors in the District Court's conduct of this complex case, we AFFIRM the District Court's June 29, 2022, judgment of conviction. ANDREW ROHRBACH, Assistant United States Attorney (Maurene Comey, Alison Moe, Lara Pomerantz, Won S. Shin, Assistant United States Attorneys, on the brief), for Damian Williams, United States Attorney for the Southern District of New York, New York, NY, for Appellee. DIANA FABI SAMSON (Arthur L. Aidala, John M. Leventhal, on the brief), Aidala Bertuna & Kamins PC, New York, NY, for Defendant-Appellant. 3a JOSÉ A. CABRANES, Circuit Judge: Defendant Ghislaine Maxwell appeals her June 29, 2022, judgment of conviction in the United States District Court for the Southern District of New York (Alison J. Nathan, Judge). Maxwell was convicted of conspiracy to transport minors with intent to engage in criminal sexual activity in violation of 18 PROT56. § 371; transportation of a minor with intent to engage in criminal sexual activity in violation of 18 PROT57. § 2423(a); and sex traffcking of a minor in violation of 18 PROT58. § 1591(a) and (b)(2). The District Court imposed concurrent terms of imprisonment of 60 months, 120 months, and 240 months, respectively, to be followed by concurrent terms of supervised release of three years, three years, and fve years, respectively. The District Court also imposed a fne of $250,000 on each count for a total of $750,000. On appeal, the questions presented are (1) whether Jeffrey Epstein's Non-Prosecution Agreement ("NPA") with the United States Attorney's Office for the Southern District of Florida ("USAO-SDFL") barred Maxwell's prosecution by the United States Attorney's Offce for the Southern District of New York ("USAO-SDNY"); (2) whether Maxwell's second superseding indictment of March 29, 2021 (the "Indictment") complied with the statute of limitations; (3) whether the District Court abused its discretion in denying Maxwell's Rule 33 motion for a new trial based on the claimed violation of her Sixth Amendment right to a fair and impartial jury; (4) whether the District Court's response to a jury note resulted in a constructive amendment of, or prejudicial variance from, the allegations in the Indictment; and (5) whether Maxwell's sentence was procedurally reasonable. 4a We hold that Epstein's NPA did not bar Maxwell's prosecution by USAO-SDNY as the NPA does not bind USAO-SDNY. We hold that Maxwell's Indictment complied with the statute of limitations as 18 PROT59. § 3283 extended the time to bring charges of sexual abuse for offenses committed before the date of the statute's enactment. We further hold that the District Court did not abuse its discretion in denying Maxwell's Rule 33 motion for a new trial based on one juror's erroneous answers during voir dire. We also hold that the District Court's response to a jury note did not result in a constructive amendment of, or prejudicial variance from, the allegations in the Indict￾ment. Lastly, we hold that Maxwell's sentence is pro￾cedurally reasonable. Accordingly, we AFFIRM the District Court's June 29, 2022, judgment of conviction. I. BACKGROUND1 Defendant Ghislaine Maxwell coordinated, facilitated, and contributed to Jeffrey Epstein's sexual abuse of women and underage girls. Starting in 1994, Maxwell groomed numerous young women to engage in sexual activity with Epstein by building friendships with these young women, gradually normalizing discussions of sexual topics and sexual abuse. Until about 2004, this pattern of sexual abuse continued as Maxwell provided Epstein access to underage girls in various locations in the United States. 1 Unless otherwise noted, the following facts are drawn from the evidence presented at trial and described in the light most favorable to the Government. See United States v. Litwok, 678 PROT60 208, 210-11 (2d Cir. 2012) ("Because this is an appeal from a judgment of conviction entered after a jury trial, the [ ] facts are drawn from the trial evidence and described in the light most favorable to the Government."). 5a 1. Epstein's Non-Prosecution Agreement In September 2007, following state and federal investigations into allegations of Epstein's unlawful sexual activity, Epstein entered into an NPA with USAO-SDFL. In the NPA, Epstein agreed to plead guilty to one count of solicitation of prostitution, in violation of Florida Statutes § 796.07,2 and to one count of solicitation of minors to engage in prostitu￾tion, in violation of Florida Statutes § 796.03.3 He agreed to receive a sentence of eighteen months' imprisonment on the two charges. In consideration of Epstein's agreement, the NPA states that "the United States also agrees that it will not institute any criminal charges against any potential co-conspirators of Epstein, including but not limited to Sarah Kellen, Adriana Ross, Lesley Groff, or Nadia Marcinkova."4 2. Maxwell's Indictment and Trial-Related Proceedings The Indictment fled against Maxwell contained eight counts, six of which proceeded to trial.5 Prior to 2 Florida Statutes § 796.07 provides in relevant part: (2) It is unlawful: (f) To solicit, induce, entice, or procure another to commit prostitution, lewdness, or assignation. 3 Florida Statutes § 796.03, which has since been repealed, provided in relevant part: "A person who procures for prostitution, or causes to be prostituted, any person who is under the age of 18 years commits a felony of the second degree." 4 A-178. 5 Count One charged Maxwell with conspiracy to entice minors to travel to engage in illegal sex acts, in violation of 18 PROT61. § 371. Count Two charged Maxwell with enticement of a minor to travel to engage in illegal sex acts, in violation of 18 PROT62. §§ 2422 and 2. Count Three charged Maxwell with conspiracy to transport 6a the commencement of trial, prospective jurors completed a lengthy questionnaire, with several questions rais￾ing issues relevant to the trial. Based on the completed questionnaires, the parties selected prospective jurors to proceed to in-person voir dire. The District Court ultimately empaneled a jury. During the four-and-a-half-week jury trial, the Government presented evidence of the repeated sexual abuse of six girls. At the conclusion of trial, on December 29, 2021, the jury found Maxwell guilty on all but one count.6 Following the verdict, Juror 50 gave press interviews during which he stated that he was a survivor of child sexual abuse.7 In his answers to the written jury questionnaire, however, Juror 50 answered "no" to three questions asking whether he or a friend or family member had ever been the victim of a crime; whether he or a friend or family member had ever been the victim of sexual harassment, sexual abuse, or sexual assault; and whether he or a friend or family member had ever been accused of sexual harassment, minors with intent to engage in criminal sexual activity, in violation of 18 PROT63. § 371. Count Four charged Maxwell with transportation of a minor with intent to engage in criminal sexual activity, in violation of 18 PROT64. §§ 2423(a) and 2. Count Five charged Maxwell with sex traffcking conspiracy, in violation of 18 PROT65. § 371. Count Six charged Maxwell with sex traffcking of a minor, in violation of 18 PROT66. §§ 1591(a), (b)(2), and 2. Counts Seven and Eight charged Maxwell with perjury, in violation of 18 PROT67. § 1623. The perjury charges were severed from the remaining charges and ultimately dismissed at sentencing. 6 The jury found Maxwell guilty on Counts One, Three, Four, Five, and Six. Maxwell was acquitted on Count Two. 7 Consistent with a juror anonymity order entered for trial, the parties and the District Court referred to the jurors by pseudonym. 7a sexual abuse, or sexual assault.8 Upon learning of the interviews, the Government fled a letter on January 5, 2022, requesting a hearing; Maxwell then moved for a new trial under Federal Rule of Criminal Procedure 33. On March 8, 2022, the District Court held a hearing and Juror 50 testifed - under grant of immunity - that his answers to three questions related to sexual abuse in the jury questionnaire were not accurate but that the answers were an inadvertent mistake and that his experiences did not affect his ability to be fair and impartial. Finding Juror 50's testimony to be credible, the District Court denied Maxwell's motion for a new trial in a written order. Maxwell was subsequently sentenced to a term of 240 months' imprisonment to be followed by fve years' supervised release, and the District Court imposed a $750,000 fine and a $300 mandatory special assessment. This appeal followed. 8 Question 2 asked "[h]ave you, or any of your relatives or close friends, ever been a victim of a crime?" Question 48 asked "[h]ave you or a friend or family member ever been the victim of sexual harassment, sexual abuse, or sexual assault? (This includes actual or attempted sexual assault or other unwanted sexual advance, including by a stranger, acquaintance, supervisor, teacher, or family member.)" Finally, Question 49 asked [h]ave you or a friend or family member ever been accused of sexual harassment, sexual abuse, or sexual assault? (This includes both formal accusations in a court of law or informal accusations in a social or work setting of actual or attempted sexual assault or other unwanted sexual advance, including by a stranger, acquaintance, supervisor, teacher, or family member. See A-299, A-310. 8a II. DISCUSSION 1. The NPA Between Epstein and USAO-SDFL Did Not Bar Maxwell's Prosecution by USAO-SDNY Maxwell sought dismissal of the charges in the Indictment on the grounds that the NPA made between Epstein and USAO-SDFL immunized her from prose￾cution on all counts as a third-party benefciary of the NPA. The District Court denied the motion, rejecting Maxwell's arguments. We agree. We review de novo the denial of a motion to dismiss an indictment.9 In arguing that the NPA barred her prosecution by USAO-SDNY, Maxwell cites the portion of the NPA in which "the United States [ ] agree[d] that it w[ould] not institute any criminal charges against any potential co￾conspirators of Epstein."10 We hold that the NPA with USAO-SDFL does not bind USAO-SDNY. It is well established in our Circuit that "[a] plea agreement binds only the offce of the United States Attorney for the district in which the plea is entered unless it affrmatively appears that the agreement contemplates a broader restriction."11 And while Maxwell contends that we cannot apply Annabi to an agreement negotiated and executed outside of this Circuit, we have previously done just that.12 Applying Annabi, we 9 See, e.g., United States v. Walters, 910 PROT68 11, 22 (2d Cir. 2018). 10 A-178. 11 United States v. Annabi, 771 PROT69 670, 672 (2d Cir. 1985). We recognize that circuits have been split on this issue for decades. See United States v. Harvey, 791 PROT70 294, 303 (4th Cir. 1986); United States v. Gebbie, 294 PROT71 540, 550 (3d Cir. 2002). 12 See, e.g., United States v. Prisco, 391 F. App'x 920, 921 (2d Cir. 2010) (summary order) (applying Annabi to plea agreement 9a conclude that the NPA did not bar Maxwell's prosecu￾tion by USAO-SDNY. There is nothing in the NPA that affrmatively shows that the NPA was intended to bind multiple districts. Instead, where the NPA is not silent, the agreement's scope is expressly limited to the Southern District of Florida. The NPA makes clear that if Epstein fulflled his obligations, he would no longer face charges in that district: After timely fulflling all the terms and conditions of the Agreement, no prosecution for the offenses set out on pages 1 and 2 of this Agreement, nor any other offenses that have been the subject of the joint investigation by the Federal Bureau of Investigation and the United States Attorney's Offce, nor any offenses that arose from the Federal Grand Jury investigation will be instituted in this District, and the charges against Epstein if any, will be dismissed.13 entered into in the District of New Jersey); United States v. Gonzalez, 93 F. App'x 268, 270 (2d Cir. 2004) (summary order) (same, to agreement entered into in the District of New Mexico). Nor does Annabi, as Maxwell contends, apply only where subsequent charges are "suffciently distinct" from charges covered by an earlier agreement. In Annabi, this Court rejected an interpreta￾tion of a prior plea agreement that rested on the Double Jeopardy Clause, reasoning that even if the Double Jeopardy Clause applied, the subsequent charges were "suffciently distinct" and therefore fell outside the Clause's protections. Annabi, 771 PROT72 at 672. This Court did not, however, conclude that the rule of construction it announced depended on the similarities between earlier and subsequent charges. 13 A-175 (emphasis added). The agreement's scope is also limited in an additional section: THEREFORE, on the authority of R. Alexander Acosta, United States Attorney for the Southern District of 10a The only language in the NPA that speaks to the agreement's scope is limiting language. The negotiation history of the NPA, just as the text, fails to show that the agreement was intended to bind other districts. Under our Court's precedent, the negotiation history of an NPA can support an inference that an NPA "affrmatively" binds other districts.14 Yet, the actions of USAO-SDFL do not indicate that the NPA was intended to bind other districts. The United States Attorney's Manual that was operable during the negotiations of the NPA required that: No district or division shall make any agreement, including any agreement not to prosecute, which purports to bind any other district(s) or division without the express written approval of the United States Attorney(s) in each affected district and/or the Assistant Attorney General of the Criminal Division.15 Nothing before us indicates that USAO-SDNY had been notifed or had approved of Epstein's NPA with USAO-SDFL and intended to be bound by it. And the Assistant Attorney General for the Criminal Division stated in an interview with the Offce of Professional Responsibility that she "played no role" in the NPA, either by reviewing or approving the agreement. Florida, prosecution in this District for these offenses shall be deferred in favor of prosecution by the State of Florida, provided that Epstein abides by the following conditions and the requirements of this Agreement set forth below. Id. (emphasis added). 14 See United States v. Russo, 801 PROT73 624, 626 (2d Cir. 1986). 15 United States Attorney's Manual § 9-27.641 (2007). 11a The history of the Offce of the United States Attorney is instructive as to the scope of their actions and duties. The Judiciary Act of 1789 created the Offce of the United States Attorney, along with the offce of the Attorney General. More specifcally, the Judiciary Act provided for the appointment, in each district, of a "person learned in the law to act as attorney for the United States in such district, who shall be sworn or affrmed to the faithful execution of his offce, whose duty it shall be to prosecute in such district all delinquents for crimes and offences, cognizable under the authority of the United States, and all civil actions in which the United States shall be concerned."16 The Judiciary Act thus emphasized that U.S. Attorneys would enforce the law of the United States but did not determine that the actions of one U.S. Attorney could bind other districts, let alone the entire nation. In fact, the phrase "in such district," repeated twice, implies that the scope of the actions and the duties of the U.S. Attorneys would be limited to their own districts, absent any express exceptions. Since 1789, while the number of federal districts has grown signifcantly, the duties of a U.S. Attorney and their scope remain largely unchanged. By statute, U.S. Attorneys, "within [their] district, shall (1) prosecute for all offenses against the United States; (2) prosecute or defend, for the Government, all civil actions, suits or proceedings in which the United States is concerned."17 Again, the scope of the duties of a U.S. Attorney is 16 An Act to Establish the Judicial Courts of the United States, ch. 20, § 35, 1 Stat. 73, 92-93 (1789) (emphasis added). 17 28 PROT74. § 547. 12a cabined to their specifc district unless otherwise directed.18 In short, Annabi controls the result here. Nothing in the text of the NPA or its negotiation history suggests that the NPA precluded USAO-SDNY from prosecut￾ing Maxwell for the charges in the Indictment. The District Court therefore correctly denied Maxwell's motion without an evidentiary hearing. 2. The Indictment Is Timely Maxwell argues that Counts Three and Four of the Indictment are untimely because they do not fall within the scope of offenses involving the sexual or physical abuse or kidnapping of a minor and thereby do not fall within the extended statute of limitations provided by § 3283.19 Separately, Maxwell contends that the Government cannot apply the 2003 amendment to § 3283 that extended the statute of limitations to 18 This does not suggest that there are no instances in which a U.S. Attorney's powers do not extend beyond their districts. For instance, under 28 PROT75. § 515 a U.S. Attorney can represent the Government or participate in proceedings in other districts, but only when specifcally directed by the Attorney General: The Attorney General or any other offcer of the Department of Justice, or any attorney specially appointed by the Attorney General under law, may, when specifcally directed by the Attorney General, conduct any kind of legal proceeding . . . which United States attorneys are authorized by law to conduct, whether or not he is a resident of the district in which the proceeding is brought. 19 18 PROT76. § 3283 provides: "[n]o statute of limitations that would otherwise preclude prosecution for an offense involving the sexual or physical abuse, or kidnaping, of a child under the age of 18 years shall preclude such prosecution during the life of the child, or for ten years after the offense, whichever is longer." 13a those offenses that were committed before the enactment into law of the provision. On both points, we disagree and hold that the District Court correctly denied Maxwell's motions to dismiss the charges as untimely. We review de novo the denial of a motion to dismiss an indictment and the application of a statute of limitations.20 First, Counts Three and Four of the Indictment are offenses involving the sexual abuse of minors. The District Court properly applied Weingarten v. United States. 21 In Weingarten, we explained that Congress intended courts to apply § 3283 using a case-specifc approach as opposed to a "categorical approach."22 We see no reason to depart from our reasoning in Weingarten. Accordingly, the question presented here is whether the charged offenses involved the sexual abuse of a minor for the purposes of § 3283 based on the facts of the case. Jane, one of the women who 20 United States v. Sampson, 898 PROT77 270, 276, 278 (2d Cir. 2018). 21 865 PROT78 48, 58-60 (2d Cir. 2017); see also United States v. Maxwell, 534 PROT79. 3d 299, 313 14 (S.D.N.Y. 2021). 22 The "categorical approach" is a method of statutory inter￾pretation that requires courts to look "only to the statutory defnitions of the prior offenses, and not to the particular facts underlying those convictions" for sentencing and immigration purposes. Taylor v. United States, 495 U.S. 575, 600 (1990). We properly reasoned in Weingarten that § 3283 met none of the conditions listed by Taylor that might require application of the categorical approach. See Weingarten, 865 PROT80 at 58-60. First, "[t]he language of § 3283[] . . . reaches beyond the offense and its legal elements to the conduct 'involv[ed]' in the offense." Id. at 59- 60. Second, legislative history suggests that Congress intended § 3283 to be applied broadly. Id. at 60. Third, a case-specifc approach would not produce practical diffculties or potential unfairness. Id. 14a testifed at trial, gave evidence that she had been sexually abused when transported across state lines as a minor. Counts Three and Four thus qualify as offenses, and § 3283 applies to those offenses. Second, Maxwell argues that Counts Three, Four, and Six of the Indictment are barred by the statute of limitations because the extended statute of limitations provided by the 2003 amendment to § 3283 does not apply to pre-enactment conduct. In Landgraf v. USI Film Products, the Supreme Court held that a court, in deciding whether a statute applies retroactively, must frst "determine whether Congress has expressly prescribed the statute's proper reach."23 If Congress has done so, "the inquiry ends, and the court enforces the statute as it is written."24 If the statute "is ambiguous or contains no express command regarding retroactivity, a reviewing court must determine whether applying the statute to antecedent conduct would create presumptively impermissible retroactive effects."25 Here, the inquiry is straightforward. In 2003, Con￾gress amended § 3283 to provide: "No statute of limitations that would otherwise preclude prosecution for an offense involving the sexual or physical abuse, or kidnaping, of a child under the age of 18 years shall preclude such prosecution during the life of the child."26 The text of § 3283 - that no statute of 23 511 U.S. 244, 280 (1994); see also Weingarten, 865 PROT81 at 54-55. 24 In re Enter. Mortg. Acceptance Co., LLC, Sec. Litig., 391 PROT82 401, 406 (2d Cir. 2004) (citing Landgraf, 511 U.S. at 280). 25 Weingarten, 865 PROT83 at 55 (citation and internal quotation marks omitted). 26 PROTECT Act, Pub. L. No. 108-21, § 202, 117 Stat. 650, 660 (2003). 15a limitations that would otherwise preclude prosecution of these offenses will apply - plainly requires that it prevent the application of any statute of limitations that would otherwise apply to past conduct. The statutory text makes clear that Congress intended to extend the time to bring charges of sexual abuse for pre-enactment conduct as the prior statute of limitations was inadequate. This is enough to conclude that the PROTECT Act's amendment to § 3283 applies to Maxwell's conduct as charged in the Indictment. 3. The District Court Did Not Abuse Its Discretion in Denying Maxwell's Motion for a New Trial Maxwell contends that she was deprived of her constitutional right to a fair and impartial jury because Juror 50 failed to accurately respond to several questions related to his history of sexual abuse as part of the jury questionnaire during jury selection. Following a special evidentiary hearing, the District Court denied Maxwell's motion for a new trial. We review a District Court's denial of a motion for a new trial for abuse of discretion.27 We have been extremely reluctant to "haul jurors in after they have 27 See Rivas v. Brattesani, 94 PROT84 802, 807 (2d Cir. 1996). "[W]e are mindful that a judge has not abused her discretion simply because she has made a different decision than we would have made in the frst instance." United States v. Ferguson, 246 PROT85 129, 133 (2d Cir. 2001). We have repeatedly explained that the term of art "abuse of discretion" includes errors of law, a clearly erroneous assessment of the evidence, or "a decision that cannot be located within the range of permissible decisions." In re Sims, 534 PROT86 117, 132 (2d Cir. 2008) (citation and internal quotation marks omitted). 16a reached a verdict in order to probe for potential instances of bias, misconduct or extraneous influences."28 While courts can "vacate any judgment and grant a new trial if the interest of justice so requires," Fed. R. Crim. P. 33(a), they should do so "sparingly" and only in "the most extraordinary circumstances."29 A district court "has broad discretion to decide Rule 33 motions based upon its evaluation of the proof produced" and is shown deference on appeal.30 A Rule 33 motion based on a juror's alleged erroneous response during voir dire is governed by McDonough Power Equipment, Inc. v. Greenwood. 31 Under McDonough, a party seeking a new trial "must frst demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause."32 The District Court applied the McDonough stand￾ard, found Juror 50's testimony credible, and deter￾mined that Juror 50's erroneous responses during voir dire were "not deliberately incorrect" and that "he would not have been struck for cause if he had pro￾vided accurate responses to the questionnaire."33 In 28 United States v. Moon, 718 PROT87 1210, 1234 (2d Cir. 1983). 29 Ferguson, 246 PROT88 at 134. 30 United States v. Gambino, 59 PROT89 353, 364 (2d Cir. 1995) (citation and internal quotation marks omitted). 31 464 U.S. 548 (1984). 32 Id. at 556. 33 A-340 (emphasis added). The Supreme Court reminds us that "[t]o invalidate the result of a [ ] trial because of a juror's mistaken, though honest response to a question, is to insist on something closer to perfection than our judicial system can be expected to give." McDonough, 464 U.S. at 555. 17a fact, as the District Court noted, Maxwell did not challenge the inclusion of other jurors who disclosed past experience with sexual abuse, assault, or harass￾ment. This is enough; the District Court did not abuse its discretion in denying Maxwell's motion for a new trial.34 4. The District Court's Response to a Jury Note Did Not Result in a Constructive Amendment of, or Prejudicial Variance from, the Allegations in the Indictment During jury deliberations, the jury sent the following jury note regarding Count Four of the Indictment: Under Count Four (4), if the defendant aided in the transportation of Jane's return fight, but not the fight to New Mexico where/if the intent was for Jane to engage in sexual activity, can she be found guilty under the second element?35 The District Court determined that it would not respond to the note directly because it was diffcult to "parse factually and legally" and instead referred the 34 Nor did the District Court err in questioning Juror 50 rather than allowing the parties to do so. In conducting a hearing on potential juror misconduct, "[w]e leave it to the district court's discretion to decide the extent to which the parties may participate in questioning the witnesses, and whether to hold the hearing in camera." United States v. Ianniello, 866 PROT90 540, 544 (2d Cir. 1989). And while Maxwell contends that the District Court improperly limited questioning about Juror 50's role in deliberations, she both waived that argument below and fails to show here how any such questioning would not be foreclosed by Federal Rule of Evidence 606(b). 35 A-238. 18a jury to the second element of Count Four.36 Maxwell subsequently fled a letter seeking reconsideration of the District Court's response, claiming that this response resulted in a constructive amendment or prejudicial variance. The District Court declined to reconsider its response and denied Maxwell's motion. Maxwell appeals the District Court's denial and argues that the alleged constructive amendment is a per se violation of the Grand Jury Clause of the Fifth Amendment. Specifically, Maxwell argues that testimony about a witness's sexual abuse in New Mexico presented the jury with another basis for conviction, which is distinct from the charges in the Indictment. Similarly, Maxwell argues that this testimony resulted in a prejudicial variance from the Indictment. We disagree and affrm the District Court's denial. We review the denial of a motion claiming constructive amendment or prejudicial variance de novo. 37 To satisfy the Fifth Amendment's Grand Jury Clause, "an indictment must contain the elements of the offense charged and fairly inform the defendant of the charge against which he must defend."38 We have explained that to prevail on a constructive amendment claim, a defendant must demonstrate that "the terms of the indictment are in effect altered by the presentation of evidence and jury instructions which so modify 36 A-207-221. The District Court's instruction on the second element of Count Four required the jury to fnd that "Maxwell knowingly transported Jane in interstate commerce with the intent that Jane engage in sexual activity for which any person can be charged with a criminal offense in violation of New York law." A-205. 37 See United States v. Dove, 884 PROT91 138, 146, 149 (2d Cir. 2018). 38 United States v. Khalupsky, 5 PROT92 279, 293 (2d Cir. 2021). 19a essential elements of the offense charged that there is a substantial likelihood that the defendant may have been convicted of an offense other than that charged in the indictment."39 A constructive amendment re￾quires reversal.40 We cannot conclude that a constructive amend￾ment resulted from the evidence presented by the Government - namely, Jane's testimony - or that it can be implied from the jury note. We have permitted signifcant fexibility in proof as long as a defendant was "given notice of the core of criminality to be proven at trial."41 In turn, "[t]he core of criminality of an offense involves the essence of a crime, in general terms; the particulars of how a defendant effected the crime falls outside that purview."42 We agree with the District Court that the jury instructions, the evidence presented at trial, and the Government's summation captured the core of criminality. As the District Court noted, while the jury note was ambiguous in one sense, it was clear that it referred to the second element of Count Four of the Indictment. Therefore, the District Court correctly directed the jury to that instruction, which "accurately instructed that Count Four had to be predicated on fnding a violation of New York law."43 It is therefore 39 United States v. Mollica, 849 PROT93 723, 729 (2d Cir. 1988). 40 See United States v. D'Amelio, 683 PROT94 412, 417 (2d Cir. 2012). 41 United States v. Ionia Mgmt. S.A., 555 PROT95 303, 310 (2d Cir. 2009) (per curiam) (emphasis omitted). 42 D'Amelio, 683 PROT96 at 418 (internal quotation marks omitted). 43 A-387; see United States v. Parker, 903 PROT97 91, 101 (2d Cir. 1990) ("The trial judge is in the best position to sense whether the 20a not "uncertain whether [Maxwell] was convicted of conduct that was the subject of the grand jury's indictment."44 We also cannot conclude that the evidence at trial prejudicially varied from the Indictment. To allege a variance, a defendant "must establish that the evidence offered at trial differs materially from the evidence alleged in the indictment."45 To prevail and win reversal, the defendant must further show "that substantial prejudice occurred at trial as a result" of the variance.46 "A defendant cannot demonstrate that he has been prejudiced by a variance where the pleading and the proof substantially correspond, where the variance is not of a character that could have misled the defendant at the trial, and where the variance is not such as to deprive the accused of his right to be protected against another prosecution for the same offense."47 For reasons similar to the ones noted above in the context of the constructive amendment, the evidence at trial did not prove facts "materially different" from the allegations in the Indictment.48 The evidence indicated that Maxwell transported Jane to New York for sexual abuse and conspired to do the same. Maxwell knew that the evidence also included conduct jury is able to proceed properly with its deliberations, and [ ] has considerable discretion in determining how to respond to commu￾nications indicating that the jury is experiencing confusion.") 44 United States v. Salmonese, 352 PROT98 608, 620 (2d Cir. 2003). 45 Dove, 884 PROT99 at 149 46 Id. (citation and internal quotation marks omitted). 47 Salmonese, 352 PROT100 at 621-22 (citation and internal quota￾tion marks omitted); see also Khalupsky, 5 PROT101 at 294. 48 Dove, 884 PROT102 at 149. 21a in New Mexico.49 Furthermore, Maxwell cannot demon￾strate "substantial prejudice." Maxwell received - over three weeks before trial - notes of Jane's interview recording the abuse she suffered in New Mexico. This is enough to conclude that Maxwell was not "unfairly and substantially" prejudiced.50 5. Maxwell's Sentence Was Procedurally Reasonable Lastly, Maxwell argues that her sentence was procedurally unreasonable because the District Court erred in applying a leadership sentencing enhancement under the Sentencing Guidelines and inadequately explained its above-Guidelines sentence.51 We disagree. We review a sentence for both procedural and substantive reasonableness, which "amounts to review for abuse of discretion."52 We have explained that 49 As the District Court found, "[t]he Indictment charged a scheme to sexually abuse underage girls in New York. In service of this scheme, the Indictment alleged that Epstein and the Defendant groomed the victims for abuse at various properties and in various states, including Epstein's ranch in New Mexico." A-393. 50 See United States v. Lebedev, 932 PROT103 40, 54 (2d Cir. 2019) (concluding that a defendant was not "unfairly and substantially" prejudiced because "[t]he government disclosed the evidence and exhibits . . . four weeks prior to trial"). 51 At sentencing, the District Court calculated a Guidelines range of 188 to 235 months' imprisonment and sentenced Maxwell to a slightly above-Guidelines term of 240 months' imprisonment. 52 United States v. Cavera, 550 PROT104 180, 187 (2d Cir. 2008) (en banc). "Regardless of whether the sentence imposed is inside or outside the Guidelines range, the appellate court must review the sentence under an abuse-of-discretion standard." Gall v. United States, 552 U.S. 38, 51 (2007). 22a procedural error is found when a district court "fails to calculate (or improperly calculates) the Sentencing Guidelines range, treats the Sentencing Guidelines as mandatory, fails to consider the [Section] 3553(a) factors, selects a sentence based on clearly erroneous facts, or fails adequately to explain the chosen sentence."53 The District Court did none of that. It is important to emphasize that the Sentencing Guidelines "are guidelines - that is, they are truly advisory."54 A District Court is "generally free to impose sentences outside the recommended range" based on its own "informed and individualized judgment."55 With respect to the four-level leadership enhancement, the District Court found that Maxwell "supervised" Sarah Kellen in part because of testimony from two of Epstein's pilots who testifed that Kellen was Maxwell's assistant. The District Court found that testimony credible, in part because it was corroborated by other testimony that Maxwell was Epstein's "number two and the lady of the house" in Palm Beach, where much of the abuse occurred and where Kellen worked.56 We therefore hold that the District Court did not err in applying the leadership enhancement. With respect to the length of the sentence, the District Court properly discussed the sentencing factors when imposing the sentence, and described, at length, Maxwell's "pivotal role in facilitating the abuse of the underaged girls through a series of deceptive 53 United States v. Robinson, 702 PROT105 22, 38 (2d Cir. 2012). 54 Cavera, 550 PROT106 at 189. 55 Id. 56 A-417. 23a tactics."57 The District Court recognized that the sentence "must refect the gravity of Ms. Maxwell's conduct, of Ms. Maxwell's offense, the pivotal role she played in facilitating the offense, and the signifcant and lasting harm it inficted."58 And the District Court explained that "a very serious, a very signifcant sentence is necessary to achieve the purposes of punishment" under 18 PROT107. § 3553(a). In sum, the District Court did not err by failing to adequately explain its sentence. CONCLUSION To summarize, we hold as follows: 1. The District Court did not err in holding that Epstein's NPA with USAO-SDFL did not bar Maxwell's prosecution by USAOSDNY. 2. The District Court did not err in holding that the Indictment was fled within the statute of limitations. 3. The District Court did not abuse its discretion in denying Maxwell's Rule 33 motion for a new trial. 4. The District Court's response to a jury note did not result in a constructive amendment of, or prejudi￾cial variance from, the allegations in the Indictment. 5. The District Court's sentence was procedurally reasonable. For the foregoing reasons, we AFFIRM the District Court's June 29, 2022, judgment of conviction. 57 SA-459. 58 SA-461. 24a APPENDIX B IN RE: INVESTIGATION OF JEFFREY EPSTEIN NON-PROSECUTION AGREEMENT IT APPEARING that the City of Palm Beach Police Department and the State Attorney's Offce for the 15th Judicial Circuit in and for Palm Beach County (hereinafter, the "State Attorney's Offce") have conducted an investigation into the conduct of Jeffrey Epstein (hereinafter "Epstein"); IT APPEARING that the State Attorney's Offce has charged Epstein by indictment with solicitation of prostitution, in violation of Florida Statutes Section 796.07; IT APPEARING that the United States Attorney's Offce and the Federal Bureau of Investigation have conducted their own investigation into Epstein's background and any offenses that may have been committed by Epstein against the United States from in or around 2001 through in or around September 2007, including: (1) knowingly and willfully conspiring with others known and unknown to commit an offense against the United States, that is, to use a facility or means of interstate or foreign com￾merce to knowingly persuade, induce, or entice minor females to engage in prostitution, in violation of Title 18, United States Code, Section 2422(b); all in violation of Title 18, United States Code, Section 371; (2) knowingly and willfully conspiring with others known and unknown to travel in interstate commerce for the purpose of engaging in illicit sexual conduct, as defned in 18 PROT108. § 2423(f), 25a with minor females, in violation of Title 18, United States Code, Section 2423(b); all in violation of Title 18, United States Code, Section 2423(e); (3) using a facility or means of interstate or foreign commerce to knowingly persuade, induce, or entice minor females to engage in prostitution; in violation of Title 18, United States Code, Sections 2422(b) and 2; (4) traveling in interstate commerce for the pur￾pose of engaging in illicit sexual conduct, as defned in 18 PROT109. § 2423(f), with minor females; in violation of Title 18, United States Code, Section 2423(b); and (5) knowingly, in and affecting interstate and foreign commerce, recruiting, enticing, and obtaining by any means a person, knowing that the person had not attained the age of 18 years and would be caused to engage in a commercial sex act as defned in 18 PROT110. § 1591(c)(1); in violation of Title 18, United States Code, Sections 1591(a)(1) and 2; and IT APPEARING that Epstein seeks to resolve globally his state and federal criminal liability and Epstein understands and acknowledges that, in exchange for the benefts provided by this agreement, he agrees to comply with its terms, including undertaking certain actions with the State Attorney's Offce; IT APPEARING, after an investigation of the offenses and Epstein's background by both State and Federal law enforcement agencies, and after due consultation with the State Attorney's Offce, that the interests of the United States, the State of Florida, and 26a the Defendant will be served by the following procedure; THEREFORE, on the authority of R. Alexander Acosta, United States Attorney for the Southern District of Florida, prosecution in this District for these offenses shall be deferred in favor of prosecution by the State of Florida, provided that Epstein abides by the following conditions and the requirements of this Agreement set forth below. If the United States Attorney should determine, based on reliable evidence, that, during the period of the Agreement, Epstein willfully violated any of the conditions of this Agreement, then the United States Attorney may, within ninety (90) days following the expiration of the term of home confnement discussed below, provide Epstein with timely notice specifying the condition(s) of the Agreement that he has violated, and shall initiate its prosecution on any offense within sixty (60) days' of giving notice of the violation. Any notice provided to Epstein pursuant to this paragraph shall be provided within 60 days of the United States learning of facts which may provide a basis for a determination of a breach of the Agreement. After timely fulflling all the terms and conditions of the Agreement, no prosecution for the offenses set out on pages 1 and 2 of this Agreement, nor any other offenses that have been the subject of the joint investigation by the Federal Bureau of Investigation and the United States Attorney's Offce, nor any offenses that arose from the Federal Grand Jury investigation will be instituted in this District, and the charges against Epstein if any, will be dismissed. 27a Terms of the Agreement: 1. Epstein shall plead guilty (not nolo contendere) to the Indictment as currently pending against him in the 15th Judicial Circuit in and for Palm Beach County (Case No. 2006-cf￾009495AXXXMB) charging one (1) count of solicitation of prostitution, in violation of Fl. Stat. § 796.07. In addition, Epstein shall plead guilty to an Information fled by the State Attorney's Offce charging Epstein with an offense that requires him to register as a sex offender, that is, the solicitation of minors to engage in prostitution, in violation of Florida Statutes Section 796.03; 2. Epstein shall make a binding recommendation that the Court impose a thirty (30) month sentence to be divided as follows: (a) Epstein shall be sentenced to consecutive terms of twelve (12) months and six (6) months in county jail for all charges, without any opportunity for withholding adjudi￾cation or sentencing, and without probation or community control in lieu of imprison￾ment; and (b) Epstein shall be sentenced to a term of twelve (12) months of community control consecutive to his two terms in county jail as described in Term 2(a), supra. 3. This agreement is contingent upon a Judge of the 15th Judicial Circuit accepting and executing the sentence agreed upon between the State Attorney's Offce and Epstein, the details of which are set forth in this agreement. 28a 4. The terms contained in paragraphs 1 and 2, supra, do not foreclose Epstein and the State Attorney's Offce from agreeing to recommend any additional charge(s) or any additional term(s) of probation and/or incarceration. 5. Epstein shall waive all challenges to the Information fled by the State Attorney's Offce and shall waive the right to appeal his con￾viction and sentence, except a sentence that exceeds what is set forth in paragraph (2), supra. 6. Epstein shall provide to the U.S. Attorney's Offce copies of all proposed agreements with the State Attorney's Offce prior to entering into those agreements. 7. The United States shall provide Epstein's attorneys with a list of individuals whom it has identifed as victims, as defned in 18 PROT111. § 2255, after Epstein has signed this agreement and been sentenced. Upon the execution of this agreement, the United States, in consultation with and subject to the good faith approval of Epstein's counsel, shall select an attorney representative for these persons, who shall be paid for by Epstein. Epstein's counsel may contact the identifed individuals through that representative. 8. If any of the individuals referred to in para￾graph (7), supra, elects to fle suit pursuant to 18 PROT112. § 2255, Epstein will not contest the jurisdiction of the United States District Court for the Southern District of Florida over his person and/or the subject matter, and Epstein waives his right to contest liability and also 29a waives his right to contest damages up to an amount as agreed to between the identifed individual and Epstein, so long as the identifed individual elects to proceed exclusively under 18 PROT113. § 2255, and agrees to waive any other claim for damages, whether pursuant to state, federal, or common law. Notwithstanding this waiver, as to those individuals whose names appear on the list provided by the United States, Epstein's signature on this agreement, his waivers and failures to contest liability and such damages in any suit are not to be construed as an admission of any criminal or civil liability. 9. Epstein's signature on this agreement also is not to be construed as an admission of civil or criminal liability or a waiver of any jurisdic￾tional or other defense as to any person whose name does not appear on the list provided by the United States. 10. Except as to those individuals who elect to proceed exclusively under 18 PROT114. § 2255, as set forth in paragraph (8), supra, neither Epstein's signature on this agreement, nor its terms, nor any resulting waivers or settlements by Epstein are to be construed as admissions or evidence of civil or criminal liability or a waiver of any jurisdictional or other defense as to any person, whether or not her name appears on the list provided by the United States. 11. Epstein shall use his best efforts to enter his guilty plea and be sentenced not later than October 26, 2007. The United States has no objection to Epstein self-reporting to begin 30a serving his sentence not later than January 4, 2008. 12. Epstein agrees that he will not be afforded any benefts with respect to gain time, other than the rights, opportunities, and benefts as any other inmate, including but not limited to, eligibility for gain time credit based on standard rules and regulations that apply in the State of Florida. At the United States' request, Epstein agrees to provide an accounting of the gain time he earned during his period of incarceration. 13. The parties anticipate that this agreement will not be made part of any public record. If the United States receives a Freedom of Information Act request or any compulsory process com￾manding the disclosure of the agreement, it will provide notice to Epstein before making that disclosure. Epstein understands that the United States Attorney has no authority to require the State Attorney's Offce to abide by any terms of this agreement. Epstein understands that it is his obligation to undertake discussions with the State Attorney's Offce and to use his best efforts to ensure compliance with these procedures, which compliance will be necessary to satisfy the United States' interest. Epstein also understands that it is his obligation to use his best efforts to convince the Judge of the 15th Judicial Circuit to accept Epstein's binding recommendation regarding the sentence to be imposed, and understands that the failure to do so will be a breach of the agreement. In consideration of Epstein's agreement to plead guilty and to provide compensation in the manner 31a described above, if Epstein successfully fulflls all of the terms and conditions of this agreement, the United States also agrees that it will not institute any criminal char es against any potential co-conspirators of Epstein, including but not limited to [REDACTED] . Further, upon execution of this agreement and a plea agreement with the State Attorney's Offce, the federal Grand Jury investigation will be suspended, and all pending federal Grand Jury subpoenas will be held in abeyance unless and until the defendant violates any term of this agreement. The defendant likewise agrees to withdraw his pending motion to intervene and to quash certain grand jury subpoenas. Both parties agree to maintain their evidence, specifcally evidence requested by or directly related to the grand jury subpoenas that have been issued, and including certain computer equipment, inviolate until all of the terms of this agreement have been satisfed. Upon the successful completion of the terms of this agreement, all outstanding grand jury subpoenas shall be deemed withdrawn. By signing this agreement, Epstein asserts and certifes that each of these terms is material to this agreement and is supported by independent consideration and that a breach of any one of these conditions allows the United States to elect to terminate the agreement and to investigate and prosecute Epstein and any other individual or entity for any and all federal offenses. By signing this agreement, Epstein asserts and certifes that he is aware of the fact that the Sixth Amendment to the Constitution of the United States provides that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial. Epstein further is aware that Rule 4 8(b) of the Federal Rules of Criminal Procedure provides that the Court 32a may dismiss an indictment, information, or complaint for unnecessary delay in presenting a charge to the Grand Jury, fling an information, or in bringing a defendant to trial. Epstein hereby requests that the United States Attorney for the Southern District of Florida defer such prosecution. Epstein agrees and consents that any delay from the date of this Agreement to the date of initiation of prosecution, as provided for in the terms expressed herein, shall be deemed to be a necessary delay at his own request, and he hereby waives any defense to such prosecution on the ground that such delay operated to deny him rights under Rule 4 8(b) of the Federal Rules of Criminal Procedure and the Sixth Amendment to the Constitution of the United States to a speedy trial or to bar the prosecution by reason of the running of the statute of limitations for a period of months equal to the period between the signing of this agreement and the breach of this agreement as to those offenses that were the subject of the grand jury's investigation. Epstein further asserts and certifes that he understands that the Fifth Amendment and Rule 7(a) of the Federal Rules of Criminal Procedure provide that all felonies must be charged in an indictment presented to a grand jury. Epstein hereby agrees and consents that, if a prosecution against him is instituted for any offense that was the subject of the grand jury's investigation, it may be by way of an Information signed and fled by the United States Attorney, and hereby waives his right to be indicted by a grand jury as to any such offense. By signing this agreement, Epstein asserts and certifes that the above has been read and explained to him. Epstein hereby states that he understands the conditions of this Non-Prosecution Agreement and agrees to comply with them. 33a R. ALEXANDER ACOSTA UNITED STATES ATTORNEY Dated: By: A. MARIE VILLAFAÑA ASSISTANT U.S. ATTORNEY Dated: 9/24/07 /s/ Jeffrey Epstein JEFFREY EPSTEIN Dated: GERALD LEFCOURT, ESQ. COUNSEL TO JEFFREY EPSTEIN Dated: LILLY ANN SANCHEZ, ESQ. ATTORNEY FOR JEFFREY EPSTEIN By signing this agreement, Epstein asserts and certifes that the above has been read and explained to him. Epstein hereby states that he understands the conditions of this Non-Prosecution Agreement and Dated: 9/27/07 By: /s/ A. Marie Villafaña A. MARIE VILLAFAÑA 34a Dated: Dated: 9/24/07 /s/ Gerald Lefcourt Dated: By signing this agreement, Epstein asserts and certifes that the above has been read and explained to him. Epstein hereby states that he understands the conditions of this Non-Prosecution Agreement and Dated: By: A. MARIE VILLAFAÑA Dated: Dated: Dated: 9-24-07 /s/ Lilly Ann Sanchez 35a IN RE: INVESTIGATION OF JEFFREY EPSTEIN ADDENDUM TO THE NON-PROSECUTION AGREEMENT IT APPEARING that the parties seek to clarify certain provisions of page 4, paragraph 7 of the Non￾Prosecution Agreement (hereinafter "paragraph 7"), that agreement is modifed as follows: 7A. The United States has the right to assign to an independent third-party the responsibility for consulting with and, subject to the good faith approval of Epstein's counsel, selecting the attorney representative for the individuals identifed underthe Agreement. If the United States elects to assign this responsibility to an independent third-patty, both the United States and Epstein retain the right to make good faith objections to the attorney representative sug￾gested by the independent third-party prior to the fnal designation of the attorney representa￾tive. 7B. The parties will jointly prepare a short written submission to the independent third-party regarding the role of the attorney representa￾tive and regarding Epstein's Agreement to pay such attorney representative his or her regular customary hourly rate for representing such victims subject to the provisions of paragraph C, infra. 7C. Pursuant to additional paragraph 7A, Epstein has agreed to pay the fees of the attorney representative selected by the independent third party. This provision, however, shall not obligate Epstein to pay the fees and costs of contested litigation fled against him. Thus, if 36a after consideration of potential settlements, an attorney representative elects to fle a contested lawsuit pursuant to 18 U,S.C. s 2255 or elects to pursue any other contested remedy, the para￾graph 7 obligation of the Agreement to pay the costs of the attorney representative, as opposed to any statutory or other obligations to pay reasonable attorneys fees and costs such as those contained in s 2255 to bear the costs of the attorney representative, shall cease. By signing this Addendum, Epstein asserts and certifes that the above has been read and explained to him. Epstein hereby, states that he understands the clarifcations to the Non-Prosecution Agreement and Dated: 10/30/07 By: /s/ [Illegible] for A. MARIE VILLAFAÑA Dated: 10/29/07 /s/ Jeffrey Epstein Dated: Dated: 37a By signing this Addendum, Epstein asserts and certifes that the above has been read and explained to him. Epstein hereby states that he understands the clarifcations to the Non-Prosecution Agreement and Dated: 10/30/07 By: /s/ [Illegible] for A. MARIE VILLAFAÑA Dated: Dated: 10/29/07 /s/ Gerald Lefcourt Dated: By signing this Addendum, Epstein asserts and certifes that the above has been read and explained to him. Epstein hereby states that he understands the clarifcations to the Non-Prosecution Agreement and Dated: 10/30/07 38a By: /s/ [Illegible] for A. MARIE VILLAFAÑA Dated: Dated: Dated: 10-29-07 /s/ Lilly Ann Sanchez 39a APPENDIX C UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK Case Number: S2 20 CR 330 (AJN) USM Number: 02879-509 UNITED STATES OF AMERICA v. GHISAINE MAXWELL BOBBI C. STERNHEIM Defendant's Attorney JUDGMENT IN A CRIMINAL CASE THE DEFENDANT:  pleaded guilty to count(s)  pleaded nolo contendere to count(s) which was accepted by the court.  was found guilty on count(s) after a plea of not guilty. 1, 3, 4, 5, 6 (judgment not entered on 1 & 5 as multiplicitous, Dkt. No. 657) The defendant is adjudicated guilty of these offenses: Title & Section Nature of Offense Offense Ended Count 18 PROT115 371.F Conspiracy to transport minors with intent to engage in criminal sexual activity 7/30/2004 3 40a The defendant is sentenced as provided in pages 2 through 8 of this judgment. The sentence is imposed pursuant to the Sentencing Reform Act of 1984.  The defendant has been found not guilty on count(s) 2  Count(s) 7, 8 and underlying indictments  is  are dismissed on the motion of the United States. It is ordered that the defendant must notify the United States attorney for this district within 30 days of any change of name, residence, or mailing address until all fnes, restitution, costs, and special assess￾ments imposed by this judgment are fully paid. If ordered to pay restitution, the defendant must notify the court and United States attorney of material changes in economic circumstances. 6/29/2022 Date of Imposition of Judgment /s/ Alison J. Nathan Signature of Judge ALISON J. NATHAN, US Circuit Judge sitting by designation Name and Title of Judge 6/29/2022 Date ADDITIONAL COUNTS OF CONVICTION Title & Section Nature of Offense Offense Ended Count 18 PROT116 2423.F Transportation of a minor with intent to engage in criminal sexual activity 12/31/1997 4 18 PROT117 1591.F Sex traffcking of an individual under the age of eighteen 7/30/2004 6 41a IMPRISONMENT The defendant is hereby committed to the custody of the Federal Bureau of Prisons to be imprisoned for a total term of: The Defendant is sentenced to a term of 240 Months. Count 3 a sentence of 60 Months. Count 4 a sentence of 120 Months. Count 6 a sentence of 240 Months. All Counts to run concurrently. Defendant was notifed of her right to Appeal.  The court makes the following recommendations to the Bureau of Prisons: Defendant to be considered for designation to FCI Danbury. Defendant to be considered for enrollment in FIT program.  The defendant is remanded to the custody of the United States Marshal.  The defendant shall surrender to the United States Marshal for this district:  at  a.m.  p.m. on .  as notifed by the United States Marshal.  The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:  before 2 p.m. on .  as notifed by the United States Marshal.  as notifed by the Probation or Pretrial Services Offce. 42a RETURN I have executed this judgment as follows: Defendant delivered on ____________ to at , with a certifed copy of this judgment. United States Marshal By Deputy United States Marshal SUPERVISED RELEASE Upon release from imprisonment, you will be on supervised release for a term of: 3 Years on Counts 3 and 4. 5 Years on Count 6 to run concurrently. MANDATORY CONDITIONS 1. You must not commit another federal, state or local crime. 2. You must not unlawfully possess a controlled substance. 3. You must refrain from any unlawful use of a controlled substance. You must submit to one drug test within 15 days of release from imprisonment and at least two periodic drug tests thereafter, as determined by the court.  The above drug testing condition is suspended, based on the court's determination that you pose a low risk of future substance abuse. (check if applicable) 4.  You must make restitution in accordance with 18 PROT118. §§ 3663 and 3663A or any other statute 43a authorizing a sentence of restitution. (check if applicable) 5.  You must cooperate in the collection of DNA as directed by the probation officer. (check if applicable) 6.  You must comply with the requirements of the Sex Offender Registration and Notifcation Act (34 PROT119. § 20901, et seq.) as directed by the probation offcer, the Bureau of Prisons, or any state sex offender registration agency in the location where you reside, work, are a student, or were convicted of a qualifying offense. (check if applicable) 7.  You must participate in an approved program for domestic violence. (check if applicable) You must comply with the standard conditions that have been adopted by this court as well as with any other conditions on the attached page. STANDARD CONDITIONS OF SUPERVISION As part of your supervised release, you must comply with the following standard conditions of supervision. These conditions are imposed because they establish the basic expectations for your behavior while on supervision and identify the minimum tools needed by probation offcers to keep informed, report to the court about, and bring about improvements in your conduct and condition. 1. You must report to the probation offce in the federal judicial district where you are authorized to reside within 72 hours of your release from impris￾onment, unless the probation offcer instructs you to report to a different probation offce or within a different time frame. 2. After initially reporting to the probation offce, you will receive instructions from the court or the 44a probation offcer about how and when you must report to the probation offcer, and you must report to the probation offcer as instructed. 3. You must not knowingly leave the federal judicial district where you are authorized to reside without frst getting permission from the court or the probation offcer. 4. You must answer truthfully the questions asked by your probation offcer. 5. You must live at a place approved by the probation offcer. If you plan to change where you live or anything about your living arrangements (such as the people you live with), you must notify the probation offcer at least 10 days before the change. If notifying the probation offcer in advance is not possible due to unanticipated circumstances, you must notify the probation offcer within 72 hours of becoming aware of a change or expected change. 6. You must allow the probation offcer to visit you at any time at your home or elsewhere, and you must permit the probation offcer to take any items prohibited by the conditions of your supervision that he or she observes in plain view. 7. You must work full time (at least 30 hours per week) at a lawful type of employment, unless the probation offcer excuses you from doing so. If you do not have full-time employment you must try to fnd full-time employment, unless the probation offcer excuses you from doing so. If you plan to change where you work or anything about your work (such as your position or your job responsibili￾ties), you must notify the probation offcer at least 10 days before the change. If notifying the probation offcer at least 10 days in advance is not 45a possible due to unanticipated circumstances, you must notify the probation offcer within 72 hours of becoming aware of a change or expected change. 8. You must not communicate or interact with some￾one you know is engaged in criminal activity. If you know someone has been convicted of a felony, you must not knowingly communicate or interact with that person without first getting the permission of the probation offcer. 9. If you are arrested or questioned by a law enforcement offcer, you must notify the probation offcer within 72 hours. 10. You must not own, possess, or have access to a frearm, ammunition, destructive device, or dan￾gerous weapon (i.e., anything that was designed, or was modifed for, the specifc purpose of causing bodily injury or death to another person such as nunchakus or tasers). 11. You must not act or make any agreement with a law enforcement agency to act as a confdential human source or informant without frst getting the permission of the court. 12. You must follow the instructions of the probation offcer related to the conditions of supervision. U.S. Probation Offce Use Only A U.S. probation offcer has instructed me on the conditions specifed by the court and has provided me with a written copy of this judgment containing these conditions. For further information regarding these conditions, see Overview of Probation and Supervised Release Conditions, available at: www.uscourts.gov. Defendant's Signature ________________ Date 46a SPECIAL CONDITIONS OF SUPERVISION You shall submit your person, and any property, residence, vehicle, papers, computer, other electronic communication, data storage devices, cloud storage or media, and effects to a search by any United States Probation Offcer, and if needed, with the assistance of any law enforcement. The search is to be conducted when there is reasonable suspicion concerning vio￾lation of a condition of supervision or unlawful conduct by the person being supervised. Failure to submit to a search may be grounds for revocation of release. You shall warn any other occupants that the premises may be subject to searches pursuant to this condition. Any search shall be conducted at a reasonable time and in a reasonable manner. You shall undergo a sex-offense-specifc evaluation and participate in an outpatient sex offender treatment and/or outpatient mental health treatment program approved by the U.S. Probation Offce. You shall abide by all rules, requirements, and conditions of the sex offender treatment program(s), including submission to polygraph testing and refraining from accessing websites, chatrooms, instant messaging, or social networking sites to the extent that the sex offender treatment and/or mental health treatment program determines that such access would be detrimental to your ongoing treatment. You will not view, access, possess, and/or download any pornography involving adults unless approved by the sex-offender specifc treatment provider. You must waive your right of confdentiality in any records for mental health assess￾ment and treatment imposed as a consequence of this judgment to allow the U.S. Probation Offce to review the course of treatment and progress with the treatment provider. You must contribute to the cost of 47a services rendered based on your ability to pay and the availability of third-party payments. The Court author￾izes the release of available psychological and psychi￾atric evaluations and reports, including the presentence investigation report, to the sex offender treatment provider and/or mental health treatment provider. You must not have contact with the victim(s) in this case. This includes any physical, visual, written, or telephonic contact with such persons. Additionally, you must not directly cause or encourage anyone else to have such contact with the victim (s). You must not have deliberate contact with any child under 18 years of age, unless approved by the U.S. Probation Offce. You must not loiter within 100 feet of places regularly frequented by children under the age of 18, such as schoolyards, playgrounds, and arcades. You must not view and/or access any web profle of users under the age of 18. This includes, but is not limited to, social networking websites, community portals, chat rooms or other online environment (audio/visual/messaging), etc. which allows for real time interaction with other users, without prior approval from your probation offcer. You must provide the probation offcer with access to any requested fnancial information. You must not incur new credit charges or open additional lines of credit without the approval of the probation offcer unless you are in compliance with the installment payment schedule. If you are sentenced to any period of supervision, it is recommended that you be supervised by the district of residence. 48a CRIMINAL MONETARY PENALTIES The defendant must pay the total criminal monetary penalties under the schedule of payments on Sheet 6. TOTALS: Assessment Restitution Fine__ $300.00 $ $750,000.00 AVAA Assessment* JVTA Assessment** $ $  The determination of restitution is deferred until _______. An Amended Judgment in a Criminal Case (AO 245C) will be entered after such determination.  The defendant must make restitution (including community restitution) to the following payees in the amount listed below. If the defendant makes a partial payment, each payee shall receive an approximately proportioned payment, unless specifed otherwise in the priority order or percentage payment column below. How￾ever, pursuant to 18 PROT120. § 3664(i), all nonfederal victims must be paid before the United States is paid. Name of Payee Total Loss*** Restitution Ordered Priority or Percentage TOTALS $ 0.00 $ 0.00  Restitution amount ordered pursuant to plea agreement $  The defendant must pay interest on restitution and a fne of more than $2,500, unless the restitution or fne is paid in full before the ffteenth day after 49a the date of the judgment, pursuant to 18 PROT121. § 3612(f). All of the payment options on Sheet 6 may be subject to penalties for delinquency and default, pursuant to 18 PROT122. § 3612(g).  The court determined that the defendant does not have the ability to pay interest and it is ordered that:  the interest requirement is waived for the  fne  restitution.  the interest requirement for the  fne  restitution is modifed as follows: * Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018, Pub. L. No. 115-299. ** Justice for Victims of Traffcking Act of 2015, Pub. L. No. 114-22. *** Findings for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18 for offenses committed on or after September 13, 1994, but before April 23, 1996. SCHEDULE OF PAYMENTS Having assessed the defendant's ability to pay, payment of the total criminal monetary penalties is due as follows: A  Lump sum payment of $ 300.00 due immediately, balance due  not later than , or  in accordance with  C,  D,  E, or  F below; or B  Payment to begin immediately (may be combined with  C,  D, or  F below); or 50a C  Payment in equal ____ (e.g., weekly, monthly, quarterly) installments of $ _____ over a period of ______ (e.g., months or years), to commence _____ (e.g., 30 or 60 days) after the date of this judgment; or D  Payment in equal _____ (e.g., weekly, monthly, quarterly) installments of $ ____ over a period of _______ (e.g., months or years), to commence ______ (e.g., 30 or 60 days) after release from imprison￾ment to a term of supervision; or E  Payment during the term of supervised release will commence within 30 (e.g., 30 or 60 days) after release from imprisonment. The court will set the payment plan based on an assessment of the defendant's ability to pay at that time; or F  Special instructions regarding the payment of criminal monetary penalties: Unless the court has expressly ordered otherwise, if this judgment imposes imprisonment, payment of criminal monetary penalties is due during the period of imprisonment. All criminal monetary penalties, except those payments made through the Federal Bureau of Prisons' Inmate Financial Responsibility Program, are made to the clerk of the court. The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed. 51a  Joint and Several Case Number Defendant and Co-Defendant Names (including defendant number) Total Amount Joint and Several Amount Corresponding Payee, if appropriate  The defendant shall pay the cost of prosecution.  The defendant shall pay the following court cost(s):  The defendant shall forfeit the defendant's interest in the following property to the United States: Payments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, (4) AVAA assessment, (5) fne principal, (6) fne interest, (7) community restitution, (8) JVTA assessment, (9) penalties, and (10) costs, including cost of prosecution and court costs. 52a APPENDIX D UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 20-cr-330 (AJN) UNITED STATES OF AMERICA, -v- GHISLAINE MAXWELL, Defendant. OPINION & ORDER ALISON J. NATHAN, District Judge: In June 2020, a grand jury returned a six-count indictment charging Ghislaine Maxwell with facilitating the late fnancier Jeffrey Epstein's sexual abuse of minor victims from around 1994 to 1997. The Govern￾ment fled a frst (S1) superseding indictment shortly thereafter, which contained only small, ministerial corrections. The S1 superseding indictment included two counts of enticement or transportation of minors to engage in illegal sex acts in violation of the Mann Act and two counts of conspiracy to commit those offenses. It also included two counts of perjury in connection with Maxwell's testimony in a civil deposi￾tion. Trial is set to begin on July 12, 2021. Maxwell fled twelve pretrial motions seeking to dismiss portions of the S1 superseding indictment, suppress evidence, and compel discovery. After the parties fully briefed those motions, a grand jury returned a second (S2) superseding indictment adding 53a a sex traffcking count and another related conspiracy count. This Opinion resolves all of Maxwell's currently pending pretrial motions other than those seeking to suppress evidence, which the Court will resolve in due course. The motions, and this Opinion, deal exclusively with the S1 superseding indictment and do not resolve any issues related to the newly added sex traffcking charges. For the reasons that follow, the Court denies Maxwell's motions to dismiss the S1 superseding indictment in whole or in part. It grants her motion to sever the perjury charges for a separate trial. It denies her motion to further expedite discovery. The Court provides a brief summary of its con￾clusions here and its reasoning on the pages that follow: • Maxwell moves to dismiss all counts based on a non-prosecution agreement between Jeffrey Epstein and the U.S. Attorney for the Southern District of Florida. The Court concludes that the agreement does not apply in this District or to the charged offenses. • Maxwell moves to dismiss all counts as un￾timely. The Court concludes that the Govern￾ment brought the charges within the statute of limitations and did not unfairly delay in bringing them. • Maxwell moves to dismiss the Mann Act counts because they are too vague, or in the alternative to require the Government to describe the charges in greater detail. The Court concludes that the charges are specifc enough. 54a • Maxwell moves to dismiss the perjury counts because, in her view, her testimony responded to ambiguous questioning and was not material. The Court concludes that these issues are best left for the jury. • Maxwell moves to sever the perjury counts from the Mann Act counts so that they can proceed in a separate trial. The Court concludes that severance is appropriate and will try the perjury counts separately. • Maxwell moves to strike language from the indictment that she believes is superfuous and to dismiss conspiracy counts she believes are redundant. The Court concludes that these motions are premature before trial. • Maxwell moves to compel the Government to immediately disclose certain categories of evidence. The Court concludes that she is not entitled to do so, but the Court will order Maxwell and the Government to confer on a discovery schedule. • Maxwell moves to dismiss all counts because a grand jury in White Plains, rather than Manhattan, returned the S1 superseding indictment. Because a jury in Manhattan returned the S2 superseding indictment, the motion appears moot. I. Jeffrey Epstein's non-prosecution agreement does not bar this prosecution In September 2007, under investigation by both federal and state authorities, Jeffrey Epstein entered into a non-prosecution agreement ("NPA") with the Offce of the United States Attorney for the Southern 55a District of Florida. Dkt. No. 142 at 1-2. Epstein agreed in the NPA to plead guilty in Florida state court to soliciting minors for prostitution and to serve eighteen months in a county jail. Id. In exchange, the U.S. Attorney's Offce agreed not to charge him with federal crimes in the Southern District of Florida stemming from its investigation of his conduct between 2001 and 2007. Id. It also agreed not to bring criminal charges against any of his "potential co-conspirators." Id. As a recent report from the Department of Justice's Offce of Professional Responsibility observed, the NPA was unusual in many respects, including its breadth, leniency, and secrecy. OPR Report, Gov. Ex. 3, Dkt. No. 204-3, at x, 80, 175, 179, 260-61. The U.S. Attorney's promise not to prosecute unidentifed co￾conspirators marks a stark departure from normal practice for federal plea agreements. This provision appears to have been added "with little discussion or consideration by the prosecutors." Id. at 169, 185. The report concluded that the U.S. Attorney's negotiation and approval of the NPA did not amount to professional misconduct, but nonetheless refected "poor judgment." Id. at 169. Only the NPA's effect, and not its wisdom, is presently before the Court. Maxwell contends that the NPA bars this prosecution, because she is charged as a co-conspirator of Jeffrey Epstein and the NPA's co-conspirator provision lacks any geographical or temporal limitations. The Court disagrees for two independent reasons. First, under controlling Second Circuit precedent, the NPA does not bind the U.S. Attorney for the Southern District of New York. Second, it does not cover the offenses charged in the S1 superseding indictment. 56a A. The non-prosecution agreement does not bind the U.S. Attorney for the Southern District of New York United States Attorneys speak for the United States. When a U.S. Attorney makes a promise as part of a plea bargain, both contract principles and due process require the federal government to fulfll it. See Santobello v. New York, 404 U.S. 257, 262 (1971); United States v. Ready, 82 PROT123 551, 558 (2d Cir. 1996). The question here is not whether the U.S. Attorney for the Southern District of Florida had the power to bind the U.S. Attorney for the Southern District of New York. The question is whether the terms of the NPA did so. Applying Second Circuit precedent and principles of contract interpretation, the Court concludes that they did not. In United States v. Annabi, the Second Circuit held: "A plea agreement binds only the offce of the United States Attorney for the district in which the plea is entered unless it affrmatively appears that the agreement contemplates a broader restriction." 771 PROT124 670, 672 (2d Cir. 1985) (per curiam). This is something akin to a clear statement rule. Single￾district plea agreements are the norm. Nationwide, unlimited agreements are the rare exception. Applying Annabi, panels of the Second Circuit have stated that courts cannot infer intent to depart from this ordinary practice from an agreement's use of phrases like "the government" or "the United States." United States v. Salameh, 152 PROT125 88, 120 (2d Cir. 1998) (per curiam); United States v. Gonzalez, 93 F. App'x 268, 270 (2d Cir. 2004). Those are common shorthand. A plea agreement need not painstakingly spell out "the Offce of the United States Attorney for Such-and-Such District" in 57a every instance to make clear that it applies only in the district where signed. Maxwell asks this Court to draw the opposite conclusion. The provision of the NPA dealing with co-conspirators does not expressly state that it binds U.S. Attorneys in other districts. It does not expressly state that it applies in other districts. The relevant language, in its entirety, reads as follows: "the United States also agrees that it will not institute any crimi￾nal charges against any potential co-conspirators of Epstein." Dkt. No. 142-1 at 5. Under Annabi, Salameh, and Gonzalez, a statement that "the United States" agrees not to prosecute implies no restriction on prosecutions in other districts. Two provisions of the NPA refer specifcally to prosecution in the Southern District of Florida. The frst states that the U.S. Attorney for the Southern District of Florida will defer "prosecution in this District" if Epstein complies with the agreement. Dkt. No. 142-1 at 2. The second states that no prosecution "will be instituted in this District, and the charges against Epstein if any, will be dismissed" after he fulflls the agreement's conditions. Maxwell contends that the lack of similar language in the co-conspirator provision must mean that it lacks any geographical limitation. If anything, that language refects that the NPA's scope was expressly limited to the Southern District of Florida. It is not plausible - let alone "affrmatively apparent", Annabi, 771 PROT126 at 672, - that the parties intended to drastically expand the agreement's geographic scope in the single sentence on the prosecution of co-conspirators without clearly so saying. Without an affrmative statement in the NPA's text, Maxwell turns to its negotiation history. Under Second 58a Circuit precedent she may offer evidence that negotia￾tions of the NPA between the defendant and the prosecutors included a promise to bind other districts. See United States v. Russo, 801 PROT127 624, 626 (2d Cir. 1986). She alleges that offcials in the U.S. Attorney's Offce for the Southern District of Florida sought and obtained approval for the NPA from the Offce of the Deputy Attorney General and communicated with attorneys in other districts. Any involvement of attorneys outside the Southern District of Florida appears to have been minimal. Maxwell has already received access to an unusually large amount of information about the NPA's negotiation history in the form of the OPR report and yet identifes no evidence that the Department of Justice made any promises not contained in the NPA. The OPR report refects that the Offce of the Deputy Attorney General reviewed the NPA, but only after it was signed when Epstein tried to get out of it. OPR Report at 103. Other documents show that attorneys in the Southern District of Florida reached out to other districts for investigatory assistance but not for help negotiating the NPA. Dkt. No. 204-2. Nor would direct approval of the NPA by the Offce of the Deputy Attorney General change the meaning of its terms. No evidence suggests anyone promised Epstein that the NPA would bar the prosecution of his co￾conspirators in other districts. Absent such a promise, it does not matter who did or did not approve it. Second Circuit precedent creates a strong presumption that a plea agreement binds only the U.S. Attorney's offce for the district where it was signed. Maxwell identifes nothing in the NPA's text or negotiation history to disturb this presumption. The Court thus concludes that the NPA does not bind the U.S. Attorney for the Southern District of New York. 59a B. The non-prosecution agreement does not cover the charged offenses The NPA would provide Maxwell no defense to the charges in the S1 superseding indictment even against an offce bound to follow it. The NPA bars prosecution, following Epstein's fulfllment of its conditions, only for three specifc categories of offenses: (1) "the offenses set out on pages 1 and 2" of the NPA; namely, "any offenses that may have been committed by Epstein against the United States from in or around 2001 through in or around September 2007" including fve enumerated offenses; (2) "any other offenses that have been the subject of the joint investigation by the Federal Bureau of Investigation and the United States Attorney's Offce"; and (3) "any offenses that arose from the Federal Grand Jury investigation." 6 Dkt. No. 142-1 at 2. The NPA makes clear that the covered charges are those relating to and deriving from a specifc investigation of conduct that occurred between 2001 and 2007. Maxwell contends that the NPA's co-conspirator provision lacks any limitation on the offenses covered. The Court disagrees with this improbable interpretation. The phrase "potential co-conspirator" means nothing without answering the question "co-conspirator in what?" The most natural reading of the co-conspirator provision is that it covers those who conspired with Epstein in the offenses covered by the NPA for their involvement in those offenses. Thus, it would cover any involvement of Maxwell in offenses committed by 60a Epstein from 2001 to 2007, other offenses that were the subject of the FBI and U.S. Attorney's Offce investigation, and any offenses that arose from the related grand jury investigation. The Court has no trouble concluding that the perjury counts are not covered by the NPA. Those charges do not relate to conduct in which Maxwell conspired with Epstein and stem from depositions in 2016, more than eight years after Epstein signed the NPA. Maxwell now concedes as much, though her motion sought to dismiss the S1 superseding indictment in its entirety, perjury counts and all. The Mann Act counts, too, fall comfortably outside the NPA's scope. The S1 superseding indictment charges conduct occurring exclusively between 1994 and 1997, some four years before the period covered by the Southern District of Florida investigation and the NPA. The NPA does not purport to immunize Epstein from liability for crimes committed before the period that was the subject of the FBI and U.S. Attorney's Offce investigation. Maxwell's protection is no broader. The Court thus concludes that the NPA does not cover the offenses charged in the S1 superseding indictment. C. Maxwell is not entitled to an evidentiary hearing In the alternative to dismissing the indictment, Maxwell requests that the Court conduct an eviden￾tiary hearing as to the parties' intent in the NPA. The Court fnds no basis to do so. The cases Maxwell cites where courts held hearings on the scope of a plea agreement mostly involved oral agreements where there was no written record of the full set of terms reached by the parties. All of them 61a involved defendants with frst-hand knowledge of negotiations who claimed prosecutors breached an oral promise. "An oral agreement greatly increases the potential for disputes such as . . . a failure to agree on the existence, let alone the terms, of the deal." United States v. Aleman, 286 PROT128 86, 90 (2d Cir. 2002). Thus, an evidentiary hearing may be necessary to determine the terms of an agreement never committed to writing. This is no such case. The NPA's terms are clear. Beyond the NPA itself, an extensive OPR report details its negotiation history. No record evidence suggests that prosecutors promised Epstein anything beyond what was spelled out in writing. The Court agrees with the Government that Maxwell's request for a hearing rests on mere conjecture. For the same reason, the Court will not order the discovery on the NPA. In any case, it appears that the Government has already produced two of the documents Maxwell seeks in her motion - the OPR report and notes mentioned in a privilege log. Of course, the Government's disclosure obligations would require it to disclose to Maxwell any exculpatory evi￾dence or evidence material to preparing the defense, including any evidence supporting a defense under the NPA. The Government shall confrm in writing within one week whether it views any evidence supporting Maxwell's interpretation of the NPA as material it is required to disclose, and, if so, whether it has disclosed any and all such evidence in its possession. 62a II. The indictment is timely A. The indictment complies with the statute of limitations Federal law imposes a fve-year limitations period for most non-capital offenses. 18 PROT129. § 3282(a). Recognizing the diffculty of promptly prosecuting crimes against children, Congress has provided a longer limitations period for "offense[s] involving the sexual or physical abuse, or kidnaping" of a minor. 18 PROT130. § 3283. Until 2003, the operative version of § 3283 allowed prosecution of these offenses until the victim reached the age of twenty-fve. Congress further extended the limitations period in the PROTECT Act of 2003, Pub. L. No. 108 21, 117 Stat. 650, to allow prosecution any time during the life of the victim. The parties agree that the Mann Act charges are timely if subject to the PROTECT Act, but untimely under the general statute of limitations for non-capital offenses or the pre-2003 version of § 3283. Maxwell contends that the charged offenses do not qualify as offenses involving the sexual or physical abuse or kidnapping of a minor and are thus governed by the general statute of limitations. Alternatively, she contends that the pre-2003 version of § 3283 applies because the charged conduct occurred prior to 2003. The Court concludes that statute of limitations in the PROTECT Act applies and that the charges are timely. 1. The Mann Act charges are offenses involving the sexual abuse of minors Maxwell does not dispute that the facts alleged in the S1 superseding indictment involve the sexual abuse of minors. The indictment charges that Epstein sexually abused each of the alleged minor victims and that Maxwell allegedly enticed them to travel or 63a transported them for that purpose. Instead, Maxwell contends that charged offenses do not qualify as offenses involving the sexual abuse of minors because sexual abuse is not an essential ingredient of each statutory offense. See Bridges v. United States, 346 U.S. 209, 221 (1953). In Maxwell's view, for example, it is possible to transport a minor with intent to engage in criminal sexual activity and not follow through with the planned sexual abuse, and so sexual abuse is not an essential ingredient of the offense. Maxwell makes the same argument for the enticement and related conspiracy charges. This approach is analogous to the "categorical approach" employed by courts to evaluate prior con￾victions for immigration and sentencing purposes. See Taylor v. United States, 495 U.S. 575, 602 (1990). Generally speaking, the "categorical approach" requires that courts "look only to the statutory defnitions - i.e., the elements" of the relevant offense to determine if the provision applies "and not to the particular facts underlying those convictions." Descamps v. United States, 570 U.S. 254, 261 (2013) (internal quotation marks omitted). Whether a statute requires a categori￾cal or case-specifc approach is a question of statutory interpretation. To determine whether Congress used the word "offense" in a statute to refer to an offense in the abstract or to the facts of each individual case, the Court must examine the statute's "text, context, and history." United States v. Davis, 139 S. Ct. 2319, 2327 (2019). Though it has not authoritatively settled the ques￾tion, the Second Circuit has strongly suggested that Maxwell's approach is the wrong one. In Weingarten v. United States, 865 PROT131 48, 58-60 (2d Cir. 2017), the Second Circuit discussed at length how the text, 64a context, and history of § 3283 show that Congress intended courts to apply the statute using a case￾specifc approach. The Third Circuit reached the same conclusion in United States v. Schneider, 801 PROT132 186, 196 (3d Cir. 2015). The Court sees no reason to depart from the reasoning in Weingarten. First, "[t]he Supreme Court's modern categorical approach jurisprudence is confned to the post-conviction contexts of criminal sentencing and immigration deportation cases." Weingarten, 865 PROT133 at 58. To the extent that the categorical approach is ever appropriate in other contexts, it is in￾appropriate here. The Court begins with the statute's text. Statutes that call for application of the categorical approach typically deal with the elements of an offense in a prior criminal conviction. Id. at 59. "The language of § 3283, by contrast, reaches beyond the offense and its legal elements to the conduct 'involv[ed]' in the offense. That linguistic expansion indicates Congress intended courts to look beyond the bare legal charges in deciding whether § 3283 applied." Id. at 59-60 (alteration in original) (quoting § 3283). Maxwell cites one case holding otherwise, but that case involved a venue statute presenting signifcantly different concerns. See United States v. Morgan, 393 PROT134 192, 200 (D.C. Cir. 2004). The Supreme Court has likewise held that a statute which uses the language "an offense that . . . involves fraud or deceit in which the loss to the victim or victims exceeds $10,000" is "consistent with a circumstance-specifc approach." Nijhawan v. Holder, 557 U.S. 29, 32, 38 (2009) (emphasis added). Thus, the word "involves" generally means that courts should look to the circumstances of an offense as committed in each case. This reading accords with a robust 65a legislative history indicating that Congress intended to apply § 3283 to a wide range of crimes against children. See Weingarten, 865 PROT135 at 60; Schneider, 801 PROT136 at 196. The purposes underlying the categorical approach do not apply here either. For statutes dealing with prior convictions, "[t]he categorical approach serves 'practical' purposes: It promotes judicial and adminis￾trative effciency by precluding the relitigation of past convictions in minitrials conducted long after the fact." Moncrieffe v. Holder, 569 U.S. 184, 200-01 (2013). In the context of § 3283, there is no prior conviction to assess, and the jury will determine in the frst instance whether "the defendant engaged in the applicable abusive conduct." Weingarten, 865 PROT137 at 60. Maxwell nonetheless contends that using a case-specifc approach for § 3283 would be impractical because the Government would need to prove conduct beyond the elements of the offense. It may be true that this approach requires the Government to prove some additional facts, but any statute-of-limitations defense presents factual issues (including, at least, when the alleged conduct took place). This is not a serious practical problem and does not justify setting aside the statute's language and apparent purpose. Maxwell relies primarily on Bridges v. United States, 346 U.S. 209 (1953), to urge this Court to cast Weingarten aside. The Supreme Court in Bridges addressed a statute that extended the limitations period for defrauding the United States during the Second World War. In that case, the Supreme Court frst concluded that making false statements at an immigration hearing was not subject to the extended limitations period because it lacked any pecuniary element as required by the statute. Id. at 221. Then, as 66a an alternative basis for its holding, it explained that the offense did not require fraud as an "essential ingredient." Id. at 222. It reached that conclusion in large part because the statute's legislative history made clear that Congress intended it to apply only to a narrow class of war frauds causing pecuniary loss. Id. at 216. As the Second Circuit explained in Weingarten, Congress had the opposite intent in the enacting in the PROTECT Act. Weingarten, 865 PROT138 at 59 & n. 10. "In passing recent statutes related to child sex abuse, including extensions of the § 3283 limitations period, Congress 'evinced a general intention to "'cast a wide net to ensnare as many offenses against children as possible."'" Id. at 60 (quoting Schneider, 801 PROT139 at 196 (quoting United States v. Dodge, 597 PROT140 1347, 1355 (11th Cir. 2010) (en banc))). The primary basis for Bridges' holding - legislative history supporting a narrow interpretation - does not exist here. Instead, both the statute's plan meaning and its legislative history suggest it should apply more broadly. Based on the statute's text, context, and history, the Court follows Weingarten and concludes that the appropriate inquiry is whether the charged offenses involved the sexual abuse of a minor on the facts alleged in this case. There is no question that they did. The Court thus concludes that § 3283 governs the limitations period for the charges here. 2. The 2003 amendment to the statute of limitations applies to these offenses Maxwell next contends that because the charged conduct took place before the PROTECT Act's enactment, that statute did not lengthen the statute of limitations applicable to her alleged offenses. Here too, the Second 67a Circuit has provided guidance in its decision in Weingarten. Although the court did not provide a defnitive answer there, it explained that the view Maxwell now takes conflicts with established principles of retroactivity and the decisions of at least two other circuit courts. Weingarten, 865 PROT141 at 58 & n.8; see Cruz v. Maypa, 773 PROT142 138, 145 (4th Cir. 2014); United States v. Leo Sure Chief, 438 PROT143 920, 924 (9th Cir. 2006). The Supreme Court has set out a two-step framework to determine whether a federal statute applies to past conduct. See Landgraf v. USI Film Products, 511 U.S. 244, 280 (1994). Courts look frst to the language of the statute. If the statute states that it applies to past conduct, courts must so apply it. Weingarten, 865 PROT144 at 54. Otherwise, the statute applies to past conduct unless doing so would create impermissible retroactive effects. Id. The Court begins with Landgraf's frst step. To assess a statute's meaning here, courts must consider the text of the statute along with other indicia of congressional intent, including the statute's history and structure. See Enter. Mortg. Acceptance Co., LLC, Sec. Litig. v. Enter. Mortg. Acceptance Co., 391 PROT145 401, 406 (2d Cir. 2004). Section 3283, as amended by the PROTECT Act, broadly states that "[n]o statute of limitations that would otherwise preclude prosecution for an offense involving the sexual or physical abuse, or kidnaping, of a child under the age of 18 years shall preclude such prosecution during the life of the child." The statute lacks an express retroactivity clause, but courts have held that no such clause is necessary, including for this particular statute. See Leo Sure Chief, 438 PROT146 at 923. The statute's plain language unambiguously requires 68a that it apply to prosecutions for offenses committed before the date of enactment. Instead of simply providing a new limitations period for future conduct, Congress stated that no statute of limitations that would otherwise preclude prosecution of these offenses will apply. That is, it prevents the application of any statute of limitations that would otherwise apply to past conduct. Courts have reached the same conclusion for other statutes employing similar language. The Eighth Circuit has held that the 1994 amendments to § 3283, which allowed prosecution of sex crimes against children until the victim reached age twenty-fve, applied to past conduct. See United States v. Jeffries, 405 PROT147 682, 684-85 (8th Cir. 2005). The Second Circuit has observed that the Higher Education Technical Amendments of 1991, Pub. L. No. 102-26, 105 Stat. 123, illustrates language that requires a statute's application to past conduct. See Enter. Mortg. Acceptance Co., LLC, Sec. Litig., 391 PROT148 at 407. That statute eliminated the statute of limitations for claims on defaulted student loans by stating that "no limitation shall terminate the period within which suit may be fled." Id. The PROTECT Act's language is quite similar. The history of § 3283 confrms Congress's intent to apply the extended limitations period as broadly as the Constitution allows. With each successive amendment to the statute, Congress further extended the limitations period, recognizing that sex crimes against children "may be diffcult to detect quickly" because children often delay or decline to report sexual abuse. Weingarten, 865 PROT149 at 54. Congress enacted the limitations provision of the PROTECT Act because it found the prior statute of limitations was "inadequate 69a in many cases." H.R. Conf. Rep. No. 108-63, at 54 (2003). For example, a person who abducted and raped a child could not be prosecuted beyond this extended limit - even if DNA matching conclusively identifed him as the perpetrator one day after the victim turned 25." Id. Maxwell makes no argument based on the statute's text. Instead, she contends that because the House version of the bill included an express retroactivity provision absent from its fnal form, the Court should infer that Congress did not intend the statute to apply to past conduct. However, the legislative history makes clear that Congress abandoned the retroactivity provision in the House bill only because it would have produced unconstitutional results. The Supreme Court has explained that a law that revives a time-barred prosecution violates the Ex Post Facto Clause of the Constitution, but a law that extends an un-expired statute of limitations does not. Stogner v. California, 539 U.S. 607, 632-33 (2003). Senator Leahy, who cosponsored the PROTECT Act, expressed concerns in a committee report that the proposed retroactivity provision was "of doubtful constitutionality" because it "would have revived the government's authority to prosecute crimes that were previously time-barred." 149 Cong. Rec. S5137, S5147 (Apr. 10, 2003) (statement of Sen. Leahy). Congress removed the provision shortly thereafter for this reason. The removal of the express retroactivity provision shows only that Congress intended to limit the PROTECT Act to its constitutional applications, including past conduct - like Maxwell's - on which the statute of limitations had not yet expired. Both the text and history of the PROTECT Act's amendment to § 3283 refect that it applies Maxwell's 70a conduct charged in the S1 superseding indictment. The Court could stop here. However, it also concludes that even if the statute were ambiguous, it would properly apply to these charges. At Lanfgraf's second step, the Court asks whether application of the statute to past conduct would have impermissible retroactive effects. "[A] statute has presumptively impermissible retroactive effects when it 'takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past.'" Weingarten, 865 PROT150 at 56 (quoting Landgraf, 511 U.S. at 290). Thus, applying a new statute of limitations to pre￾viously time-barred claims has an impermissible retroactive effect. Enter. Mortg. Acceptance Co., LLC, Sec. Litig., 391 PROT151 at 407. Applying it to conduct for which the statute of limitations has not yet expired does not. Vernon v. Cassadaga Valley Cent. Sch. Dist., 49 PROT152 886, 890 (2d Cir. 1995). Maxwell concedes that these offenses were within the statute of limitations when Congress enacted the PROTECT Act. Thus, the Act did not deprive her of any vested rights. Maxwell contends that it is unfair to allow the Government to prosecute her now for conduct that occurred more than twenty years ago, but there is no dispute that Congress has the power to set a lengthy limitations period or no limitations period at all. It has done so here, judging that the diffculty of prosecuting these offenses and the harm they work on children outweighs a defendant's interest in repose. Maxwell's fairness argument is a gripe with Congress's policy judgment, not an impermissibly retroactive application of the statute. The Court concludes that § 3283 allows her prosecution now. 71a B. The Government's delay in bringing charges did not violate due process "As the Supreme Court stated in United States v. Marion, the statute of limitations is 'the primary guarantee against bringing overly stale criminal charges.'" United States v. Cornielle, 171 PROT153 748, 751 (2d Cir. 1999) (cleaned up) (quoting United States v. Marion, 404 U.S. 307, 322 (1971)). There is a strong presumption that an indictment fled within the statute of limitations is valid. To prevail on a claim that pre-indictment delay violates due process, a defendant must show both that the Government inten￾tionally delayed bringing charges for an improper purpose and that the delay seriously damaged the defendant's ability defend against the charges. See id. This is a stringent standard. "Thus, while the [Supreme] Court may not have shut the door frmly on a contention that at some point the Due Process Clause forecloses prosecution of a claim because it is too old, at most the door is barely ajar." DeMichele v. Greenburgh Cent. Sch. Dist. No. 7, 167 PROT154 784, 790- 91 (2d Cir. 1999). The Court sees no evidence that the Government's delay in bringing these charges was designed to thwart Maxwell's ability to prepare a defense. However, it is enough to say that Maxwell does not make the strong showing of prejudice required to support this sort of claim. Maxwell contends that the Government's delay in bringing charges has prejudiced her interests because potential witnesses have died, others have forgotten, and records have been lost or destroyed. It is highly speculative that any of these factors would make a substantial difference in her case. Maxwell frst points to several potential witnesses who have passed away. These include Jeffrey Epstein 72a and his mother, one individual Maxwell believes worked with one of the alleged victims in this case, and a police detective who investigated Epstein in Florida. She contends they all would have provided exculpatory testimony were they alive today. Courts have generally found that vague assertions that a deceased witness might have provided favorable testimony do not justify dismissing an indictment for delay. See, e.g., United States v. Scala, 388 PROT155. 2d 396, 399-400 (S.D.N.Y. 2005). The Court agrees with this approach. Maxwell provides no indication of what many of these potential witnesses might have testifed to. The testimony she suggests the detective might have offered - that witnesses in the Palm Beach investigation did not identify Maxwell by name - is propensity evidence that does nothing to establish her innocence of the charged offenses. There are also serious doubts under all of the relevant circumstances that a jury would have found testimony from Epstein credible even if he had waived his right against self-incrimination and testifed on her behalf. See United States v. Spears, 159 PROT156 1081, 1085 (7th Cir. 1999). Maxwell's arguments that the indictment should be dismissed because of the possibility of missing witnesses, failing memories, or lost records fail for similar reasons. These are diffculties that arise in any case where there is extended delay in bringing a prosecution, and they do not justify dismissing an indictment. United States v. Marion, 404 U.S. 307, 325-26 (1971); see United States v. Elsbery, 602 PROT157 1054, 1059 (2d Cir. 1979). Finally, the Court fnds no substantial prejudice from the pretrial publicity this case has garnered. Maxwell contends that lengthy public interest in this case has transformed her reputation from that of Epstein's friend to a co-conspirator. And she also 73a alleges - without evidence - that her accusers fabricated their stories based on media allegations. The Court will not dismiss the indictment on Maxwell's bare assertion that numerous witnesses are engaged in a perjurious conspiracy against her. And the Court will take all appropriate steps to ensure that the pretrial publicity in this case does not compromise Maxwell's right to a fair and impartial jury. The Court thus concludes that Maxwell has failed to establish actual prejudice from the Government's delay in bringing charges. She may renew her motion if the factual record at trial shows otherwise. On the present record, neither the applicable statute of limitations nor due process bars the charges here. III. The indictment describes the charged offenses with specifcity Maxwell seeks to dismiss the Mann Act counts for lack of specifcity or in the alternative to compel the Government to submit a bill of particulars providing greater detail of the charges. The Court concludes that the charges in the S1 superseding indictment are clear enough. Under Federal Rule of Criminal Procedure 7, an indictment must contain "a plain, concise, and defnite written statement of the essential facts constituting the offense charged." The indictment must be specifc enough to inform the defendant of the charges and allow the defendant to plead double jeopardy in a later prosecution based on the same events. United States v. Stavroulakis, 952 PROT158 686, 693 (2d Cir. 1992). "Under this test, an indictment need do little more than to track the language of the statute charged and state the time and place (in approximate terms) of the alleged crime." United States. v. Tramunti, 513 PROT159 1087, 1113 74a (2d Cir. 1975). In addition to dismissal, "Rule 7(f) of the Federal Rules of Criminal Procedure permits a defendant to seek a bill of particulars in order to identify with suffcient particularity the nature of the charge pending against him, thereby enabling defendant to prepare for trial, to prevent surprise, and to interpose a plea of double jeopardy should he be prosecuted a second time for the same offense." United States v. Bortnovsky, 820 PROT160 572, 574 (2d Cir. 1987). The S1 superseding indictment sets out the elements of each charged crime and the facts supporting each element. Nonetheless, Maxwell contends that the indictment is too vague because it refers to open-ended time periods, describes conduct like "grooming" and "befriending" that is not inherently criminal, and does not identify the alleged victims by name. Maxwell's frst argument fails because the Government need only describe the time and place of charged conduct "in approximate terms." Tramunti, 513 PROT161 at 1113. The details are subject to proof at trial. "[T]he Second Circuit routinely upholds the 'on or about' language used to describe the window of when a violation occurred." United States v. Kidd, 386 PROT162. 3d 364, 369 (S.D.N.Y. 2019) (quoting United States v. Nersesian, 824 PROT163 1294, 1323 (2d Cir. 1987)). "This is especially true in cases of sexual abuse of children: allegations of sexual abuse of underage victims often proceed without specifc dates of the offenses." United States v. Young, No. 08-cr-285 (KMK), 2008 WL 4178190, at *2 (S.D.N.Y. Sept. 4, 2008) (collecting cases). As here, these cases frequently involve alleged abuse spanning a lengthy period of time, and witnesses who were victimized as children may struggle to recall the precise dates when abuse 75a occurred. The indictment adequately describes the time and place of the charged conduct. Maxwell next contends that allegations of noncriminal conduct render the charges impermissibly vague. The Court disagrees. Rule 7 requires only that the language of the indictment track the language of the statute and provide a rough account of the time and place of the crime. Tramunti, 513 PROT164 at 1113. The language of the S1 superseding indictment does so. The Government's decision to provide more details than those strictly required does not hamper Maxwell's ability to prepare a defense. Maxwell's argument that some of the con￾duct alleged is not inherently criminal goes to the merits of the Government's case, not the specifcity of the charges. Finally, Maxwell argues that the indictment is vague because the government does not provide the names of the alleged victims. The Court sees no basis to require that the alleged victims' names be included the indictment. The names of victims, even if important, generally need not appear there unless their omission would seriously prejudice the defendant. See United States v. Stringer, 730 PROT165 120, 127 (2d Cir. 2013); United States v. Kidd, 386 PROT166. 3d 364, 369 (S.D.N.Y. 2019). Maxwell likely knows the identity of the alleged victims described in the indictment at this point because the Government has provided extensive discovery on them. Moreover, the Government has agreed to disclose their names in advance of trial. There is thus no unfairness here. See Stringer, 730 PROT167 at 126. As discussed below, the Court will require the parties to negotiate and propose a full schedule for all remaining pretrial disclosures. 76a IV. The perjury charges are legally tenable The Court turns next to Maxwell's motion to dismiss the perjury counts stemming from her answers to questions in a deposition in a civil case. She contends that these charges are legally defcient because the questions posed were fundamentally ambiguous and the questions were not material to the subject of the deposition. The Court concludes that the charges are legally tenable and Maxwell's defenses are appropriately left to the jury. The applicable perjury statute imposes criminal penalties on anyone who "in any proceeding before or ancillary to any court . . . knowingly makes any false material declaration." 18 PROT168. § 1623(a). Testimony is perjurious only if it is knowingly false and is material to the proceeding in which the defendant offered it. A. The questions posed were not too ambiguous to support a perjury charge The requirement of knowing falsity requires that a witness believe that their testimony is false. United States v. Lighte, 782 PROT169 367, 372 (2d Cir. 1986). As a general matter, "[a] jury is best equipped to determine the meaning that a defendant assigns to a specifc question." Id. Courts have acknowledged a narrow exception for questions that are so fundamentally ambiguous or imprecise that the answer to them cannot legally be false. Id. at 372, 375; see also United States v. Wolfson, 437 PROT170 862, 878 (2d Cir. 1970). A question is fundamentally ambiguous only if reasonable people could not agree on its meaning in context. Lighte, 782 PROT171 at 375. The existence of some arguable ambiguity does not foreclose a perjury charge against a witness who understood the question. 77a At a minimum, Maxwell's motion is premature. Courts typically evaluate whether a question was fundamentally ambiguous only after the development of a full factual record at trial. See, e.g., United States v. Markiewicz, 978 PROT172 786, 808 (2d Cir. 1992). The evidence at trial may shed further light on whether the questions posed were objectively ambiguous in context or whether Maxwell subjectively understood them. In any event, the Court has closely considered each of the categories of questions that Maxwell argues are ambiguous. None of the alleged ambiguities Maxwell identifes rise to the level supporting dismissal of the charges. The context of the questions and answers, in conjunction with the Government's evidence, could lead a reasonable juror to conclude that the statements were perjurious. Truth and falsity are questions for the jury in all but the most extreme cases. The Court declines to usurp the jury's role on the limited pretrial record. B. A reasonable juror could conclude that Maxwell's statements were material Maxwell also argues that the perjury counts should be dismissed because none of the allegedly false statements were material to the defamation action. In a civil deposition, a statement is material if it has a natural tendency to infuence the court or if a truthful answer might reasonably lead to the discovery of admissible evidence. United States v. Gaudin, 515 U.S. 506, 509 (1995); United States v. Kross, 14 PROT173 751, 753-54 (2d Cir. 1994). Like knowing falsity, materiality is an element of the offense and thus ordinarily must be "decided by the jury, not the court." Johnson v. United States, 520 U.S. 461, 465 (1997). Only the most extraordinary circumstances justify departure from this general rule. United States v. Forde, 740 PROT174. 78a 2d 406, 412 (S.D.N.Y. 2010) (citing Gaudin, 515 U.S. at 522-23). The charged statements do not fall within this narrow exception. Maxwell contends that the questions did not relate to the sex traffcking and sexual abuse allegations at the center of the civil case, but that is not the legal standard. The Government may prevail if it proves that Maxwell's answers could have led to the discovery of other evidence or could infuence the factfnder in the civil case. See Gaudin, 515 U.S. at 509; Kross, 14 PROT175 at 753-54. At trial, a reasonable juror could conclude that truthful answers to the questions may have permitted the plaintiff to locate other victims or witnesses who could have corroborated the plaintiff's testimony. The factual disputes relating to materiality are at least enough to preclude pretrial resolution. In criminal cases, courts must guard against "invading the 'inviolable function of the jury' in our criminal justice system," and if the "defense raises a factual dispute that is inextricably intertwined with a defendant's potential culpability, a judge cannot resolve that dispute on a Rule 12(b) motion." United States v. Sampson, 898 PROT176 270, 281 (2d Cir. 2018). The Court concludes that the perjury charges are legally tenable and appropriately presented to the jury. V. The perjury charges must be severed and tried separately Although the perjury charges are legally tenable, the Court concludes that the interests of justice require severing those counts and trying them separately. Trying the perjury counts together with the Mann Act counts would require admitting evidence of other acts likely to be unduly prejudicial. It would also risk 79a disqualifying Maxwell's chosen counsel based on their involvement in the earlier civil case. Rule 14(a) of the Federal Rules of Criminal Procedure allows a court to order separate trials if joining all offenses in a single trial would prejudice the defendant. A defendant seeking severance must show signifcant unfairness to outweigh the burden on the court of conducting multiple trials. United States v. Walker, 142 PROT177 103, 110 (2d Cir. 1998). The harm to the defendant must be more than "solely the adverse effect of being tried for two crimes rather than one." United States v. Werner, 620 PROT178 922, 929 (2d Cir. 1980). Though this standard is demanding, the Court concludes that, due to unique features of the perjury counts, Maxwell meets it here. Trying all counts together would compromise Maxwell's right to the counsel of her choice and risk an unfair trial. Trying the perjury counts together with the Mann Act counts would risk an unfair trial on each set of counts. First, it would introduce unrelated allegations of sexual abuse, which would potentially expose the jury to evidence that might otherwise not be admissible. In particular, a joint trial would potentially expose the jury to a wider swath of information regarding civil litigation against Epstein that is remote from Maxwell's charged conduct. This presents a signifcant risk that the jury will cumulate the evidence of the various crimes charged and fnd guilt when, if considered separately, it would not do so. See United States v. Halper, 590 PROT179 422, 430 (2d Cir. 1978). Second, the evidence presented on the Mann Act counts may prejudice the jury's ability to fairly evaluate Maxwell's truthfulness in her deposition, a critical element of the perjury counts. The Court has concerns that a limiting 80a instruction may be inadequate to mitigate these risks given the nature of the allegations involved. Importantly, a joint trial is also likely to require disqualifcation of at least one of Maxwell's attorneys from participating as an advocate on her behalf. The perjury counts likely implicate the performance and credibility of her lawyers in the civil action - two of whom represent her in this case. The New York Rules of Professional Conduct generally forbid a lawyer from representing a client in a proceeding in which the lawyer is likely also to be a witness. N.Y. R. Prof'l Conduct § 3.7(a). Maxwell's counsel in the civil action and the deposition may be important fact witnesses on the perjury counts. Even if counsel were not required to testify, trying all counts together could force Maxwell to choose between having her counsel testify on her behalf on the perjury charges and having them assist her in defending the Mann Act charges. The Second Circuit has recognized that witness testimony offered by a party's attorney presents serious risks to the fairness of a trial. See Murray v. Metro. Life Ins. Co., 583 PROT180 173, 178 (2d Cir. 2009). The lawyer might appear to vouch for their own credibility, jurors might perceive the lawyer as dis￾torting the truth to beneft their client, and blurred lines between argument and evidence might confuse the jury. Id. Disqualifcation of counsel also implicates Maxwell's Sixth Amendment right to be represented by the counsel of her choice. See, e.g., United States v. Kincade, No. 15-cr-00071 (JAD) (GWF), 2016 WL 6154901, at *6 (D. Nev. Oct. 21, 2016). The prejudice to Maxwell is especially pronounced because the attorneys who represented her in the civil case have worked with her for years and are particularly familiar with the facts surrounding the criminal prosecution. See United 81a States v. Cunningham, 672 PROT181 1064, 1070-71 (2d Cir. 1982). The Court is of course cognizant of the burden separate trials may impose on all trial participants. But much of the proof relevant to the perjury counts and the Mann Act counts does not overlap. In particular, materiality for statements made in a civil deposition is broad, and evidence on that question is unlikely to bear on the other charges here. See Kross, 14 PROT182 at 753-54; Gaudin, 515 U.S. at 509. Although some allegations of sexual abuse are relevant to both sets of charges, many are not. At a minimum, this will expand the scope of the trial far beyond the narrower issues presented. And while the Court agrees with the Government that at least some of Maxwell's concerns are overstated, there is little question that the jury's consideration of the nature of the defamation action will require a signifcant investment of time and resources to provide the requisite context. The balance of these considerations favors severance. "Motions to sever are committed to the sound discretion of the trial judge." United States v. Casamento, 887 PROT183 1141, 1149 (2d Cir. 1989). In its discretion, the Court concludes that trying the perjury counts separately will best ensure a fair and expeditious resolution of all charges in this case. VI. Maxwell's motion to strike surplusage is premature Maxwell moves to strike allegations related to one of the alleged victims from the S1 superseding indictment as surplusage. The Court declines to do so at this juncture. Federal Rule of Criminal Procedure 7(d) allows a court to strike surplusage from an indictment on a 82a defendant's motion. "Motions to strike surplusage from an indictment will be granted only where the challenged allegations are not relevant to the crime charged and are infammatory and prejudicial." United States v. Hernandez, 85 PROT184 1023, 1030 (2d Cir. 1996) (cleaned up). Courts in this District generally delay ruling on any motion to strike until after the presentation of the Government's evidence at trial, because that evidence may affect how specifc allega￾tions relate to the overall charges. See, e.g., United States v. Nejad, No. 18-cr-224 (AJN), 2019 WL 6702361, at *18 (S.D.N.Y. Dec. 6, 2019); United States v. Mostafa, 965 PROT185. 2d 451, 467 (S.D.N.Y. 2013). Maxwell contends that the allegations related to "Minor Victim-3" are surplusage because the indictment does not charge that Minor Victim-3 traveled in interstate commerce or was below the age of consent in England where the alleged activities took place. Thus, she argues, these allegations do not relate to the charged conspiracy and instead refect an attempt to introduce Minor Victim-3's testimony for impermissible purposes. The Court will not strike any language from the S1 superseding indictment at this juncture. The standard under Rule 7(d) is "exacting" and requires the defendant to demonstrate clearly that the allegations are irrelevant to the crimes charged. United States v. Napolitano, 552 PROT186. 465, 480 (S.D.N.Y. 1982). The indictment does not allege that the alleged victim traveled in interstate commerce or was underage during sexual encounters with Epstein. But the Court cannot rule out that the allegations may refect conduct undertaken in furtherance of the charged conspiracy or be relevant to prove facts such as Maxwell's state of mind. See United States v. 83a Concepcion, 983 PROT187 369, 392 (2d Cir. 1992). The Court will follow the well-worn path of others in this District and reserve the issue for trial. Maxwell may renew her motion then. VII. Maxwell's motion to dismiss multiplicitous charges is premature Maxwell's motion to dismiss either the frst or third count of the S1 superseding indictment as multiplicitous is also premature. Maxwell contends that the Government has alleged the same conspiracy twice in the indictment. "An indictment is multiplicitous when it charges a single offense as an offense multiple times, in separate counts, when, in law and fact, only one crime has been committed." United States v. Chacko, 169 PROT188 140, 145 (2d Cir. 1999). "The multiplicity doctrine is based upon the double jeopardy clause of the Fifth Amendment, which assures that the court does not exceed its legislative authorization by imposing multiple punish￾ments for the same offense." United States v. Nakashian, 820 PROT189 549, 552 (2d Cir. 1987) (cleaned up). "Where there has been no prior conviction or acquittal, the Double Jeopardy Clause does not protect against simultaneous prosecutions for the same offense, so long as no more than one punishment is eventually imposed." United States v. Josephberg, 459 PROT190 350, 355 (2d Cir. 2006). "Since Josephberg, courts in this Circuit have routinely denied pre-trial motions to dismiss potentially multiplicitous counts as premature." United States v. Medina, No. 13-cr-272 (PGG), 2014 WL 3057917, at *3 (S.D.N.Y. July 7, 2014) (collecting cases). The Court therefore denies Maxwell's motion to dismiss multiplicitous counts without prejudice. 84a VIII. The parties shall negotiate all remaining disclosures Maxwell moves to compel the Government to produce certain documents she believes it has in its possession and has failed to produce. She also seeks accelerated disclosure of the Government's witness list, Jencks Act material, Brady and Giglio material, co-conspirator statements, and Rule 404(b) material. Based on the Government's response in briefng and letters the parties have since submitted to the Court, it appears that most of these requests have been overtaken by events. Accordingly, although the Court concludes that Maxwell is not entitled to expedite this discovery based on the arguments in her motion papers, the Court will require the parties to confer on an overall schedule for all remaining pretrial disclosures. A. The Court accepts the Government's repre￾sentations that it has disclosed all Brady and Giglio Material The Supreme Court's decisions in Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972) require the Government to disclose to defendants certain evidence that will aid their defense. Brady requires disclosure of exculpatory evidence. Under Giglio, the Government has a duty to produce "not only exculpatory material, but also information that could be used to impeach a key government witness." United States v. Coppa, 267 PROT191 132, 135 (2d Cir. 2001) (citing Giglio, 405 U.S. at 154). As a general rule, "Brady and its progeny do not require immediate disclosure of all exculpatory and impeachment mate￾rial upon request by a defendant." Id. at 146. "[A]s long as a defendant possesses Brady evidence in time for its effective use, the government has not deprived the 85a defendant of due process of law simply because it did not produce the evidence sooner." Id. at 144. Maxwell requests an order directing immediate disclosure of all Brady and Giglio material and also requests a few specifc documents she contends the Government has failed to disclose. The Court begins with the specifc requests. The requested materials include (1) records of witness interviews in connection with an ex parte declaration in support of a response to a motion to quash subpoenas; (2) an unredacted copy of two FBI reports; (3) pages from a personal diary that is in the custody of a civilian third party; and (4) copies of all subpoenas the Government has issued for Maxwell's records as part of its investigation in this case. The Government represents that it is cognizant of its Brady obligations, that is has reviewed the witness interviews and one of the FBI reports, and that neither set of documents includes exculpatory information not previously disclosed. The Court has no reason to doubt the Government's representation in this case that it is aware of its Brady obligations and that it has complied and will continue to comply with them. And because the witness statements are covered by the Jencks Act, the Court cannot compel production of such statements under the terms of the statute. See 18 PROT192. § 3500; Coppa, 267 PROT193 at 145. Next, the Government represents that it has already produced an unredacted copy of the other requested FBI report, and so that request is moot. The diary pages she requests are within the control of a civilian third party, not the Government, and so the Government need not (and perhaps cannot) produce them. See United States v. Collins, 409 PROT194. 3d 228, 239 (S.D.N.Y. 2019). Finally, Maxwell's request for copies of all subpoenas 86a the Government has issued is overly broad and lacks a legal basis. Maxwell is not entitled to compel pro￾duction of these documents. The Court also will not issue an order requiring the immediate disclosure of Brady and Giglio material. The Government has represented that it recognizes its obligations under Brady and that it has complied, and will continue to comply, with such obligations. The Court has no reason to doubt these representations given its expansive approach to document production thus far in this case. The Government has agreed in its recent letter to produce Giglio material six weeks in advance of trial. The parties shall negotiate the specifc timing, but assuming a schedule along those lines is met, the Court concludes that Maxwell will be able to effectively prepare for trial. See Coppa, 267 PROT195 at 144. B. Jencks Act material and co-conspirator statements Maxwell also seeks to expedite discovery of Jencks Act material and non-exculpatory statements of co￾conspirators that the government may offer at trial. The Jencks Act, 18 PROT196. § 3500, "provides that no prior statement made by a government witness shall be the subject of discovery until that witness has testifed on direct examination." Coppa, 267 PROT197 at 145. The statute therefore prohibits a district court in most cases from ordering the pretrial disclosure of witness statements unless those statements are exculpatory. "A coconspirator who testifes on behalf of the government is a witness under the Act." In re United States, 834 PROT198 283, 286 (2d Cir. 1987). The Court therefore lacks the inherent power to expedite these disclosures. In any case, the Government has 87a agreed to produce all Jencks Act material at least six weeks in advance of trial. The Court also rejects Maxwell's alternative request for a hearing to determine the admissibility of co￾conspirator declarations. Co-conspirator statements may often be admitted at trial on a conditional basis. If the Court determines that the Government has not met its burden to show that the conditionally admitted statements were made in furtherance of the charged conspiracy, the Court should provide a limiting in￾struction or, in extreme cases declare a mistrial. United States v. Tracy, 12 PROT199 1186, 1199 (2d Cir. 1993). Although conditional admissions can pose a problem, a pretrial hearing is unnecessary here be￾cause the Government has committed to producing co￾conspirator statements at least six weeks in advance of trial to allow Maxwell to raise any objections. Maxwell will have adequate time to object to any proffered co-conspirator testimony following the Government's Jencks Act disclosures. C. Witness list As a general matter, "district courts have authority to compel pretrial disclosure of the identity of government witnesses." United States v. Cannone, 528 PROT200 296, 300 (2d Cir. 1975). In deciding whether to order accelerated disclosure of a witness list, courts consider whether a defendant has made a specifc showing that disclosure is "both material to the preparation of the defense and reasonable in light of the circumstances surrounding the case." United States v. Bejasa, 904 PROT201 137, 139-140 (2d Cir. 1990) (cleaned up). Maxwell has made a particularized showing that the Government must produce a witness list reasonably in 88a advance of trial. The nature of the allegations in this case - decades-old allegations spanning multiple locations - present considerable challenges for the preparation of the defense. However, the Government's proposed disclosure schedule - which will afford Maxwell at least six weeks to investigate testifying witness statements - allows Maxwell signifcantly more time to review disclosures than schedules adopted in most cases in this District. See, e.g., United States v. Rueb, No. 00-CR-91 (RWS), 2001 WL 96177, at *9 (S.D.N.Y. Feb. 5, 2001) (thirty days before trial); United States v. Nachamie, 91 PROT202. 2d 565, 580 (S.D.N.Y. 2000) (fourteen days before trial). In addition, on April 13, 2021, the Government produced over 20,000 pages of interview notes, reports and other materials related to non-testifying witnesses. After considering the circum￾stances, including the complexity of the issues in this case and what the defense has already received and likely learned in the course of discovery, the Court concludes that the Government's proposal is generally reasonable. D. Rule 404(b) material Maxwell's fnal discovery request is for early disclosure of evidence the Government seeks to offer under Federal Rule of Evidence 404(b). Under Rule 404(b), if the prosecutor in a criminal case intends to use "evidence of a crime, wrong, or other act" against a defendant, the prosecutor must "provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial" and must "do so in writing before trial - or in any form during trial if the court, for good cause, excuses lack of pretrial notice." The Government represents that it will notify the defense of its intent to use 404(b) evidence at least 45 days in advance of trial to allow Maxwell to fle any 89a motions in limine to be considered at the fnal pretrial conference. The Government's proposal will give Maxwell an opportunity to challenge admission of that evidence and to bring to the Court's attention any issues that require resolution before trial. "This is all that Rule 404(b) requires." United States v. Thompson, No. 13-cr-378 (AJN), 2013 WL 6246489, at *9 (S.D.N.Y. Dec. 3, 2013). The Court concludes this schedule is generally reasonable, although additional time to enable briefng and resolution in advance of trial is strongly encouraged. The Court's denial of Maxwell's requests to compel pretrial disclosures does not preclude the parties from negotiating in good faith for an expedited discovery timeline that will account for Maxwell's specifc concerns. "[I]n most criminal cases, pretrial disclosure will redound to the beneft of all parties, counsel, and the court." United States v. Percevault, 490 PROT203 126, 132 (2d Cir. 1974). In general, the Court will require the parties to negotiate a fnal, omnibus schedule to propose to the Court. The Court concludes that the disclosure of all of the above materials approximately six to eight weeks in advance of trial is appropriate and suffcient. Given the complexities of the case and the addition of two counts via the S2 indictment, the Court encourages the parties to agree to approximately eight weeks. IX. The S2 superseding indictment moots Maxwell's grand jury challenge The Court has not received supplemental briefng on the motions in light of the return of the S2 superseding 90a indictment and so does resolve any such issues here.1 However, Maxwell's motion seeking to dismiss the S1 superseding indictment because it was returned by a grand jury sitting at the White Plains courthouse appears moot. Maxwell argued that the use of a grand jury drawn from the White Plains Division in this District did not represent a fair cross-section of the community, because her trial would proceed in the Manhattan Division. A grand jury sitting in Manhattan returned the S2 superseding indictment. By April 21, 2021, Maxwell shall show cause why her grand jury motion should not be dismissed on that basis. Conclusion The Court DENIES Maxwell's motions to dismiss the indictment as barred by Epstein's non-prosecution agreement (Dkt. No. 141), to dismiss the Mann Act counts as barred by the statute of limitations (Dkt. No. 143), to dismiss the indictment for pre-indictment delay (Dkt. No. 137), to dismiss the Mann Act counts for lack of specifcity (Dkt. No. 123), to dismiss the perjury counts as legally untenable (Dkt. No. 135), to strike surplusage (Dkt. No. 145), to dismiss count one or count three as multiplicitous (Dkt. No. 121), and to expedite pretrial disclosures (Dkt. No. 147). The Court GRANTS Maxwell's motion to sever the perjury counts for a separate trial (Dkt. No. 119). The Court ORDERS the Government to confrm within one week whether it considers any evidence related to negotiation of the non-prosecution agreement to constitute Brady or Rule 16 material and, if so, to confrm that it has or will disclose such evidence. 1 The parties shall negotiate and propose a schedule for any available additional or supplement rulings in light of the fling of the S2 indictment. 91a The Court further ORDERS the parties to negotiate a fnal schedule for all pretrial disclosures that remain outstanding, including: Brady, Giglio, and Jenks Act materials, including co-conspirator statements; non￾testifying witness statements; testifying witness state￾ments; the identity of victims alleged in the indictment; 404(b) material; and the Government's witness list. The Court also requires the parties to negotiate a schedule for any additional or supplemental motions briefng in light of the S2 indictment. The Court ORDERS a joint proposal to be submitted by April 21, 2021. If agreement is not reached, the parties shall submit their respective proposals. The Court further ORDERS Maxwell to show cause by April 21, 2021 why her motion to dismiss the S1 superseding indictment under the Sixth Amendment (Dkt. No. 125) should not be denied as moot. SO ORDERED. Dated: April 16, 2021 New York, New York /s/ Alison J. Nathan ALISON J. NATHAN United States District Judge 92a APPENDIX E UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Docket No: 22-1426 At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 25th day of November, two thousand twenty-four. UNITED STATES OF AMERICA, Appellee, v. GHISLAINE MAXWELL, AKA SEALED DEFENDANT 1, Defendant-Appellant. ORDER Appellant, Ghislaine Maxwell, fled a petition for panel rehearing, or, in the alternative, for rehearing en banc. The panel that determined the appeal has considered the request for panel rehearing, and the active members of the Court have considered the request for rehearing en banc. IT IS HEREBY ORDERED that the petition is denied. FOR THE COURT: Catherine O'Hagan Wolfe, Clerk [United States Second Circuit Court of Appeals Catherine O'Hagan Wolfe Seal] 93a APPENDIX F DEPARTMENT OF JUSTICE [LOGO] EXCERPTS OF THE OFFICE OF PROFESSIONAL RESPONSIBILITY REPORT Investigation into the U.S. Attorney's Offce for the Southern District of Florida's Resolution of Its 2006- 2008 Federal Criminal Investigation of Jeffrey Epstein and Its Interactions with Victims during the Investigation November 2020 NOTE: THIS REPORT CONTAINS SENSITIVE, PRIVILEGED, AND PRIVACY ACT PROTECTED INFORMATION. DO NOT DISTRIBUTE THE REPORT OR ITS CONTENTS WITHOUT THE PRIOR APPROVAL OF THE OFFICE OF PROFESSIONAL RESPONSIBILITY. EXECUTIVE SUMMARY The Department of Justice (Department) Offce of Professional Responsibility (OPR) investigated allega￾tions that in 2007-2008, prosecutors in the U.S. Attorney's Offce for the Southern District of Florida (USAO) improperly resolved a federal investigation into the criminal conduct of Jeffrey Epstein by negotiating and executing a federal non-prosecution agreement (NPA). The NPA was intended to end a federal investigation into allegations that Epstein engaged in illegal sexual activity with girls.1 OPR also 1 As used in this Report, including in quoted documents and statements, the word "girls" refers to females whowere under the age of 18 at the time of the alleged conduct. Under Florida law, a minor is a person under the age of 18. 94a investigated whether USAO prosecutors committed professional misconduct by failing to consult with victims of Epstein's crimes before the NPA was signed or by misleading victims regarding the status of the federal investigation after the signing. I. OVERVIEW OF FACTUAL BACKGROUND The Palm Beach (Florida) Police Department (PBPD) began investigating Jeffrey Epstein in 2005, after the parents of a 14-year-old girl complained that Epstein had paid her for a massage. Epstein was a multi￾millionaire fnancier with residences in Palm Beach, New York City, and other United States and foreign locations. The investigation led to the discovery that Epstein used personal assistants to recruit girls to provide massages to him, and in many instances, those massages led to sexual activity. After the PBPD brought the case to the State Attorney's Offce, a Palm Beach County grand jury indicted Epstein, on July 19, 2006, for felony solicitation of prostitution in violation of Florida Statute § 796.07. However, because the PBPD Chief and the lead Detective were dissatisfed with the State Attorney's handling of the case and believed that the state grand jury's charge did not address the totality of Epstein's conduct, they referred the matter to the Federal Bureau of Investigation (FBI) in West Palm Beach for a possible federal investigation. The FBI brought the matter to an Assistant U.S. Attorney (AUSA), who opened a file with her supervisor's approval and with the knowledge of then U.S. Attorney R. Alexander Acosta. She worked with two FBI case agents to develop a federal case against Epstein and, in the course of the investigation, they discovered additional victims. In May 2007, the AUSA submitted to her supervisors a draft 60-count indictment outlining 95a charges against Epstein. She also provided a lengthy memorandum summarizing the evidence she had assembled in support of the charges and addressing the legal issues related to the proposed charges. For several weeks following submission of the prosecution memorandum and proposed indictment, the AUSA's supervisors reviewed the case to determine how to proceed. At a July 31, 2007 meeting with Epstein's attorneys, the USAO offered to end its investigation if Epstein pled guilty to state charges, agreed to serve a minimum of two years' incarceration, registered as a sexual offender, and agreed to a mecha￾nism through which victims could obtain monetary damages. The USAO subsequently engaged in additional meetings and communications with Epstein's team of attorneys, ultimately negotiating the terms of a state￾based resolution of the federal investigation, which culminated in the signing of the NPA on September 24, 2007. The NPA required Epstein to plead guilty in state court to the then-pending state indictment against him and to an additional criminal information charging him with a state offense that would require him to register as a sexual offender - specifcally, procurement of minors to engage in prostitution, in violation of Florida Statute § 796.03. The NPA required Epstein to make a binding recommendation that the state court sentence him to serve 18 months in the county jail followed by 12 months of community control (home detention or "house arrest"). The NPA also included provisions designed to facilitate the victims' recovery of monetary damages from Epstein. In exchange, the USAO agreed to end its investigation of Epstein and to forgo federal prosecution in the Southern District of Florida of him, four named co-conspirators, and "any potential co-conspirators." 96a Victims were not informed of, or consulted about, a potential state resolution or the NPA prior to its signing. The signing of the NPA did not immediately lead to Epstein's guilty plea and incarceration, however. For the next nine months, Epstein deployed his extensive team of prominent attorneys to try to change the terms that his team had negotiated and he had approved, while simultaneously seeking to invalidate the entire NPA by persuading senior Department offcials that there was no federal interest at issue and the matter should be left to the discretion of state law enforce￾ment offcials. Through repeated communications with the USAO and senior Department offcials, defense counsel fought the government's interpretation of the NPA's terms. They also sought and obtained review by the Department's Criminal Division and then the Offce of the Deputy Attorney General, primarily on the issue of federal jurisdiction over what the defense insisted was "a quintessentially state matter." After reviewing submissions by the defense and the USAO, on June 23, 2008, the Offce of the Deputy Attorney General informed defense counsel that the Deputy Attorney General would not intervene in the matter. Only then did Epstein agree to fulfll his obligation under the NPA, and on June 30, 2008, he appeared in state court and pled guilty to the pending state indictment charging felony solicitation of prostitution and, pursuant to the NPA, to a criminal information charging him with procurement of minors to engage in prostitution. Upon the joint request of the defendant and the state prosecutor, and consistent with the NPA, the court immediately sentenced Epstein to consecu￾tive terms of 12 months' incarceration on the solicitation charge and 6 months' incarceration on the procurement charge, followed by 12 months of community control. Epstein began serving the sentence that day, in a 97a minimum-security Palm Beach County facility. A copy of the NPA was fled under seal with the state court. On July 7, 2008, a victim, identifed as "Jane Doe," fled in federal court in the Southern District of Florida an emergency petition alleging that the government violated the Crime Victims' Rights Act (CVRA), 18 PROT204. § 3771, when it resolved the federal investiga￾tion of Epstein without consulting with victims, and seeking enforcement of her CVRA rights.2 In responding to the petition, the government, represented by the USAO, revealed the existence of the NPA, but did not produce it to the petitioners until the court directed it to be turned over subject to a protective order; the NPA itself remained under seal in the federal district court. After the initial flings and hearings, the CVRA case was dormant for almost two years while the petitioners pursued civil cases against Epstein. Soon after he was incarcerated, Epstein applied for the Palm Beach County Sheriff's work release program, and the Sheriff approved his application. In October 2008, Epstein began spending 12 hours a day purportedly working at the "Florida Science Foundation," an entity Epstein had recently incorporated that was co-located at the West Palm Beach offce of one of Epstein's attorneys. Although the NPA specifed a term of incarceration of 18 months, Epstein received "gain time," that is, time off for good behavior, and he actually served less than 13 months of incarceration. On July 22, 2009, Epstein was released from custody to a one-year term of home detention as a condition of 2 Emergency Victim's Petition for Enforcement of Crime Victim's [sic] Rights Act, 18 PROT205. Section 3771, Doe v. United States, Case No. PROT0-KAM (S.D. Fla. July 7, 2008). Another victim subsequently joined the litigation as "Jane Doe 2." 98a community control, and he registered as a sexual offender with the Florida Department of Law Enforcement. After victims and news media fled suit in Florida courts for release of the copy of the NPA that had been fled under seal in the state court fle, a state judge in September 2009 ordered it to be made public. By mid-2010, Epstein reportedly settled multiple civil lawsuits brought against him by victims seeking monetary damages, including the two petitioners in the CVRA litigation. During the CVRA litigation, the petitioners sought discovery from the USAO, which made substantial document productions, fled lengthy privilege logs in support of its withholding of documents, and submitted declarations from the AUSA and the FBI case agents who conducted the federal investiga￾tion. The USAO opposed efforts to unseal various records, as did Epstein, who was permitted to intervene in the litigation with respect to certain issues. Nevertheless, the court ultimately ordered that substantial records relating to the USAO's resolution of the Epstein case be made public. During the course of the litigation, the court made numerous rulings interpreting the CVRA. After failed efforts to settle the case, the parties' cross motions for summary judgment remained pending for more than a year. In 2017, President Donald Trump nominated Acosta to be Secretary of Labor. At his March 2017 confirmation hearing, Acosta was questioned only briefy about the Epstein case. On April 17, 2017, the Senate confrmed Acosta's appointment as Labor Secretary. In the decade following his release from incarceration, Epstein reportedly continued to settle multiple civil suits brought by many, but not all, of his victims. Epstein was otherwise able to resume his lavish lifestyle, largely avoiding the interest of the press. On 99a November 28, 2018, however, the Miami Herald published an extensive investigative report about state and federal criminal investigations initiated more than 12 years earlier into allegations that Epstein had coerced girls into engaging in sexual activity with him at his Palm Beach estate.3 The Miami Herald reported that in 2007, Acosta entered into an "extraordinary" deal with Epstein in the form of the NPA, which permitted Epstein to avoid federal prosecution and a potentially lengthy prison sentence by pleading guilty in state court to "two prostitution charges." According to the Miami Herald, the govern￾ment also immunized from prosecution Epstein's co￾conspirators and concealed from Epstein's victims the terms of the NPA. Through its reporting, which included interviews of eight victims and information from publicly available documents, the newspaper painted a portrait of federal and state prosecutors who had ignored serious criminal conduct by a wealthy man with powerful and politically connected friends by granting him a "deal of a lifetime" that allowed him both to escape signifcant punishment for his past conduct and to continue his abuse of minors. The Miami Herald report led to public outrage and media scrutiny of the government's actions.4 3 Julie K. Brown, "Perversion of Justice," Miami Herald, Nov. 28, 2018. https://www.miamiherald.com/news/local/article220097 825.html. 4 See, e.g., Ashley Collman, "Stunning new report details Trump's labor secretary's role in plea deal for billionaire sex abuser," The Business Insider, Nov. 29, 2018; Cynthia McFadden, "New Focus on Trump Labor Secretary's role in unusual plea deal for billionaire accused of sexual abuse," NBC Nightly News, Nov. 29, 2018; Anita Kumar, "Trump labor secretary out of running for attorney general after Miami Herald report," McClatchy Washington Bureau, Nov. 29, 2018; Emily Peck, "How Trump's Labor Secretary 100a On February 21, 2019, the district court granted the CVRA case petitioners' Motion for Partial Summary Judgment, ruling that the government violated the CVRA in failing to advise the victims about its intention to enter into the NPA.5 The court also found that letters the government sent to victims after the NPA was signed, describing the investigation as ongoing, "mislead [sic] the victims to believe that federal prosecution was still a possibility." The court also highlighted the inequity of the USAO's failure to communicate with the victims while at the same time engaging in "lengthy negotiations" with Epstein's counsel and assuring the defense that the NPA would not be "made public or fled with the court." The court ordered the parties to submit additional briefs regarding the appropriate remedies. After the court's order, the Department recused the USAO from the CVRA litigation and assigned the U.S. Attorney's Offce for the Northern District of Georgia to handle the case for the government. Among the remedies sought by the petitioners, and opposed by the govern￾ment, was rescission of the NPA and federal prosecution of Epstein. On July 2, 2019, the U.S. Attorney's Offce for the Southern District of New York obtained a federal grand jury indictment charging Epstein with one count of sex traffcking of minors and one count of conspiracy to commit sex traffcking of minors. The indictment alleged that from 2002 until 2005, Epstein Covered For A Millionaire Sex Abuser," Huffngton Post, Nov. 29, 2018; Julie K. Brown, et al., "Lawmakers issue call for investiga￾tion of serial sex abuser Jeffrey Epstein's plea deal," Miami Herald, Dec. 6, 2018. 5 Doe v. United States, 359 PROT206. 3d 1201 (S.D. Fla., Feb. 21, 2019) (Opinion and Order, 9:08-80736-CIV-Marra). 101a created a vast network of underage victims in both New York and Florida whom he sexually abused and exploited. Epstein was arrested on the charges on July 6, 2019. In arguing for Epstein's pretrial detention, prosecutors asserted that agents searching Epstein's Manhattan residence found thousands of photos of nude and half-nude females, including at least one believed to be a minor. The court ordered Epstein detained pending trial, and he was remanded to the custody of the Bureau of Prisons and held at the Metropolitan Correctional Center in Manhattan. Meanwhile, after publication of the November 2018 Miami Herald report, the media and Congress increas￾ingly focused attention on Acosta as the government offcial responsible for the NPA. On July 10, 2019, Acosta held a televised press conference to defend his and the USAO's actions. Acosta stated that the Palm Beach State Attorney's Offce "was ready to allow Epstein to walk free with no jail time, nothing." According to Acosta, because USAO prosecutors con￾sidered this outcome unacceptable, his offce pursued a diffcult and challenging case and obtained a resolution that put Epstein in jail, forced him to register as a sexual offender, and provided victims with the means to obtain monetary damages. Acosta's press conference did not end the controversy, however, and on July 12, 2019, Acosta submitted to the President his resignation as Secretary of Labor. In a brief oral statement, Acosta explained that continued media attention on his handling of the Epstein investigation rather than on the economy was unfair to the Labor Department. On August 10, 2019, Epstein was found hanging in his cell and was later pronounced dead. The New York 102a City Chief Medical Examiner concluded that Epstein had committed suicide. As a result of Epstein's death, the U.S. Attorney's Offce for the Southern District of New York fled a nolle prosequi to dismiss the pending indictment against Epstein. On August 27, 2019, the district court held a hearing at which more than a dozen of Epstein's victims - including victims of the conduct in Florida that was addressed through the NPA - spoke about the impact of Epstein's crimes. The court dismissed the Epstein indictment on August 29, 2019. After Epstein's death, the federal district court in Florida overseeing the CVRA litigation denied the petitioners their requested remedies and closed the case as moot. Among its fndings, the court concluded that although the government had violated the CVRA, the government had asserted "legitimate and legally supportable positions throughout this litigation," and therefore had not litigated in bad faith. The court also noted it expected the government to "honor its representation that it will provide training to its employees about the CVRA and the proper treatment of crime victims," as well as honoring its promise to meet with the victims. On September 30, 2019, CVRA petitioner "Jane Doe 1" fled in her true name a petition for a writ of mandamus in the United States Court of Appeals for the Eleventh Circuit, seeking review of the district court's order denying all of her requested remedies. In its responsive brief, the government argued that "as a matter of law, the legal obligations under the CVRA do not attach prior to the government charging a case" and thus, "the CVRA was not triggered in [the Southern District of Florida] because no criminal charges were brought." Nevertheless, during oral 103a argument, the government conceded that the USAO had not been "fully transparent" with the petitioner and had "made a mistake in causing her to believe that the case was ongoing when in fact the NPA had been signed." On April 14, 2020, a divided panel of the Court of Appeals denied the petition, ruling that CVRA rights do not attach until a defendant has been criminally charged. On August 7, 2020, the court granted the petition for rehearing en banc and vacated the panel's opinion; as of the date of this Report, a briefng schedule has been issued, and oral argument is set for December 3, 2020. II. THE INITIATION AND SCOPE OF OPR'S INVESTIGATION After the Miami Herald published its investigative report on November 28, 2018, U.S. Senator Ben Sasse, Chairman of the Senate Judiciary Subcommittee on Oversight, Agency Action, Federal Rights and Federal Courts, sent a December 3, 2018 letter to OPR, citing the Miami Herald's report and requesting that OPR "open an investigation into the instances identifed in this reporting of possible misconduct by Department of Justice attorneys." On February 6, 2019, the Department of Justice Offce of Legislative Affairs advised Senator Sasse that OPR had opened an investigation into the matter and would review the USAO's decision to resolve the federal investigation of Epstein through the NPA.6 After the district court issued its ruling in the CVRA litigation, on February 21, 2019, OPR included within 6 The federal government was closed from December 22, 2018, to January 25, 2019. After initiating its investigation, OPR also subsequently received other letters from U.S. Senators and Representatives inquiring into the status of the OPR investigation. 104a the scope of its investigation an examination of the government's conduct that formed the basis for the court's fndings that the USAO violated the CVRA in failing to afford victims a reasonable right to confer with the government about the NPA before the agreement was signed and that the government affrmatively misled victims about the status of the federal investigation. During the course of its investigation, OPR obtained and reviewed hundreds of thousands of records from the USAO, the FBI, and other Department components, including the Offce of the Deputy Attorney General, the Criminal Division, and the Executive Offce for U.S. Attorneys. The records included emails, letters, memoranda, and investigative materials. OPR also collected and reviewed materials relating to the state investigation and prosecution of Epstein. OPR also examined extensive publicly available information, including depositions, pleadings, orders, and other court records, and reviewed media reports and interviews, articles, podcasts, and books relating to the Epstein case. In addition to this extensive documentary review, OPR conducted more than 60 interviews of witnesses, including the FBI case agents, their supervisors, and FBI administrative personnel; current and former USAO staff and attorneys; current and former Department attorneys and senior managers, including a former Deputy Attorney General and a former Assistant Attorney General for the Criminal Division; and the former State Attorney and former Assistant State Attorney in charge of the state investigation of Epstein. OPR also interviewed several victims and attorneys representing victims, and reviewed written 105a submissions from victims, concerning victim contacts with the USAO and the FBI. OPR identifed former U.S. Attorney Acosta, three former USAO supervisors, and the AUSA as subjects of its investigation based on preliminary information indicating that each of them was involved in the decision to resolve the case through the NPA or in the negotiations leading to the agreement. OPR deems a current or former Department attorney to be a subject of its investigation when the individual's conduct is within the scope of OPR's review and may result in a fnding of professional misconduct. OPR reviewed prior public statements made by Acosta and another subject. All fve subjects cooperated fully with OPR's investigation. OPR requested that all of the subjects provide written responses detailing their involvement in the federal investigation of Epstein, the drafting and execution of the NPA, and decisions relating to victim notifcation and consultation. OPR received and reviewed written responses from all of the subjects, and subsequently conducted extensive interviews of each subject under oath and before a court reporter. Each subject was represented by counsel and had access to relevant contemporaneous documents before the subject's OPR interview. The subjects reviewed and provided comments on their respective interview transcripts and on OPR's draft report. OPR carefully considered the comments and made changes, or noted comments, as OPR deemed appropriate; OPR did not, however, alter its fndings and conclusions. Finally, OPR reviewed relevant case law, statutes, regulations, Department policy, and attorney profes￾sional responsibility rules as necessary to resolve the issues presented in this case and to determine whether the subjects committed professional misconduct. 106a As part of its investigation, OPR examined the interactions between state offcials and the federal investigators and prosecutors, but because OPR does not have jurisdiction over state offcials, OPR did not investigate, or reach conclusions about, their conduct regarding the state investigation.7 Because OPR's mission is to ensure that Department attorneys adhere to the standards of professional conduct, OPR's inves￾tigation focused on the actions of the subject attorneys rather than on determining the full scope of Epstein's and his assistants' criminal behavior. Accordingly, OPR considered the evidence and information regard￾ing Epstein's and his assistants' conduct as it was known to the subjects at the time they performed their duties as Department attorneys. Additional evidence and information that came to light after June 30, 2008, when Epstein entered his guilty plea under the NPA, did not affect the subjects' actions prior to that date, and OPR did not evaluate the subjects' conduct on the basis of that subsequent information. OPR's investigation occurred approximately 12 years after most of the signifcant events relating to the USAO's investigation of Epstein, the NPA, and Epstein's guilty plea. As a result, many of the subjects and witnesses were unable to recall the details of events or their own or others' actions occurring in 2006-2008, such as conversations, meetings, or documents 7 In August 2019, Florida Governor Ron DeSantis announced that he had directed the Florida Department ofLaw Enforcement to open an investigation into the conduct of state authorities relating to Epstein. As reported, the investigation focuses on Epstein's state plea agreement and the Palm Beach County work release program. 107a they reviewed at the time.8 However, OPR's evaluation of the subjects' conduct was aided signifcantly by extensive, contemporaneous emails among the prose￾cutors and communications between the government and defense counsel. These records often referred to the interactions among the participants and described important decisions and, in some instances, the bases for them. III. OVERVIEW OF OPR'S ANALYTICAL FRAME￾WORK OPR's primary mission is to ensure that Department attorneys perform their duties in accordance with the highest professional standards, as would be expected of the nation's principal law enforcement agency. Accordingly, OPR investigates allegations of professional misconduct against current or former Department attorneys related to the exercise of their authority to [69] to the assault charge" and suggesting a different factual scenario to support a federal charge.112 At this 8 OPR was cognizant that Acosta and the three managers all left the USAO during, or not long after resolution of, the Epstein case, while the AUSA remained with the USAO until mid-2019. Moreover, as the line prosecutor in the Epstein investigation and also as co-counsel in the CVRA litigation until the USAO was recused from that litigation in early 2019, the AUSA had continuous access to the USAO documentary record and numerous occasions to review these materials in the course of her offcial duties. Additionally, in responding to OPR's request for a written response, and in preparing to be interviewed by OPR, the AUSA was able to refresh her recollection with these materials to an extent not possible for the other subjects, who were provided with relevant documents by OPR in preparation for their interviews. 112 Villafaña told OPR that she sometimes used her home email account because "[n]egotiations were occurring at nights, on 108a point, Sloman left on vacation, and he informed Acosta and Villafaña that in his absence Lourie had agreed "to help fnalize this." Lourie spent the following work week at his new post at the Department in Washington, D.C., but communicated with his USAO colleagues by phone and email. In a Sunday, September 16, 2007 email, Villafaña informed Lefkowitz that she had drafted a factual proffer to accompany a revised "hybrid" federal plea proposal. In that email, Villafaña also noted that she was considering fling charges in the federal district court in Miami, "which will hopefully cut the press coverage significantly." This email received considerable attention 12 years later when it was made public during the CVRA litigation and was viewed as evidence of the USAO's efforts to conceal the NPA from the victims. Villafaña, however, explained to OPR that she was concerned that news media coverage would violate the victims' privacy. She told OPR, "[I]f [the victims] wanted to attend [the plea hearing], I wanted them to be able to go into the courthouse without their faces being splashed all over the newspaper," and that such publicity was less likely to happen in Miami, where the press "in general does not care about what happens in Palm Beach." Lefkowitz responded to Villafaña with a revised version of her latest proposed "hybrid" plea agreement, in a document entitled "Agreement." Signifcantly, this defense proposal introduced two new provisions. The frst related to four female assistants who had weekend[s], and while I was [away from the offce for personal reasons], . . . and this occurred during a time when out of offce access to email was very limited." Records show her supervisors were aware that at times she used her personal email account in communicating with defense counsel in this case. 109a allegedly facilitated Epstein in his criminal scheme. The defense sought a government promise not to prosecute them, as well as certain other unnamed Epstein employees, and a promise to forego immigration proceedings against two of the female assistants: Epstein's fulflling the terms and conditions of the Agreement also precludes the initiation of any and all criminal charges which might otherwise in the future be brought against [four named female assistants] or any employee of [a specifc Epstein-owned corporate entity] for any criminal charge that arises out of the ongoing federal investigation . . . . Further, no immigration proceeding will be instituted against [two named female assistants] as a result of the ongoing investigation. The second new provision related to the USAO's efforts to obtain Epstein's computers: Epstein's fulflling the terms and conditions of the Agreement resolves any and all out￾standing [legal process] that have requested witness testimony and/or the production of documents and/or computers in relation to the investigation that is the subject of the Agreement. Each [legal process] will be withdrawn upon the execution of the Agreement and will not be re-issued absent reliable evidence of a violation of the agree￾ment. Epstein and his counsel agree that the computers that are currently under [legal process] will be safeguarded in their current condition by Epstein's counsel or their agents until the terms and conditions of the Agree￾ment are fulflled. 110a Later that day, Villafaña sent Lefkowitz a lengthy email to convey two options Lourie had suggested: "the original proposal" for a state plea but with an agreement for an 18-month sentence, or pleas to state charges and two federal obstruction-of-justice charges. Villafaña also told Lefkowitz she was willing to ask Acosta again to approve a federal plea to a fve-year conspiracy with a Rule 11(c) binding recommendation for a 20-month sentence. Villafaña explained: As to timing, it is my understanding that Mr. Epstein needs to be sentenced in the state after he is sentenced in the federal case, but not that he needs to plead guilty and be sentenced after serving his federal time. Andy recommended that some of the timing issues be addressed only in the state agreement, so that it isn't obvious to the judge that we are trying to create federal jurisdiction for prison purposes. With regard to prosecution of individuals other than Epstein, Villafaña suggested standard federal plea agreement language regarding the resolution of all criminal liability, "and I will mention 'co-conspirators,' but I would prefer not to highlight for the judge all of the other crimes and all of the other persons that we could charge." Villafaña told OPR that she was willing to include a non-prosecution provision for Epstein's co￾conspirators, who at the time she understood to be the four women named in the proposed agreement, because the USAO was not interested in prosecuting those individuals if Epstein entered a plea. Villafaña told OPR, "[W]e considered Epstein to be the top of the food chain, and we wouldn't have been interested in prosecuting anyone else." She did not consider the possibility that Epstein might be trying to protect other, unnamed individuals, and no one, including the FBI case agents, raised that concern. Villafaña also 111a told OPR that her reference to "all of the other crimes and all of the other persons that we could charge" related to her concern that if the plea agreement contained information about uncharged conduct, the court might ask for more information about that conduct and inquire why it had not been charged, and if the government provided such information, Epstein's attorneys might claim the agreement was breached.113 With regard to immigration, Villafaña told OPR that the USAO generally did not take any position in plea agreements on immigration issues, and that in this case, there was no evidence that either of the two assistants who were foreign nationals had committed fraud in connection with their immigration paperwork, "and I think that they were both in status. So there wasn't any reason for them to be deported."114 As to whether the foreign nationals would be removable by virtue of having committed crimes, Villafaña told OPR she did not consider her role as seeking removal apart from actual prosecution. Villafaña concluded her email to Lefkowitz by expressing disappointment that they were not "closer to resolving this than it appears that we are," and 113 OPR understood Villafaña's concern to be that if the govern￾ment were required to respond to a court's inquiry into additional facts, Epstein would object that the government was trying to cast him in a negative light in order to infuence the court to impose a sentence greater than the agreed-upon term. 114 According to the case agents, the West Palm Beach FBI offce had an ICE agent working with them at the beginning of the federal investigation, and the ICE agent normally would have looked into the immigration status of any foreign national, but neither case agent recalled any immigration issue regarding any of the Epstein employees. 112a offering to meet the next day to work on the agreement: Can I suggest that tomorrow we either meet live or via teleconference, either with your client or having him within a quick phone call, to hash out these items? I was hoping to work only a half day tomorrow to save my voice for Tuesday's hearing . . . , if necessary, but maybe we can set a time to meet. If you want to meet "off campus" somewhere, that is fne. I will make sure that I have all the necessary decision makers present or "on call," as well.115 Villafaña told OPR that she offered to meet Lefkowitz away from the USAO because conducting negotiations via email was ineffcient, and Villafaña wanted "to have a meeting where we sat down and just fnalized things. And what I meant by off campus is, sometimes people feel better if you go to a neutral location" for a face-to-face meeting. On the morning of Monday, September 17, 2007, the USAO supervisor who was taking over Lourie's duties as manager of the West Palm Beach offce asked Villafaña for an update on the plea negotiations, and she forwarded to him the email she had sent to Lefkowitz the previous afternoon. Villafaña told the manager, "As you can see . . . there are a number of things in their last draft that were unacceptable. All of the loopholes that I sewed up they tried to open." Shortly thereafter, Villafaña alerted the new manager, Acosta, and Lourie that she had just spoken with 115 Lefkowitz was based in New York City but traveled to Miami in connection with the case. 113a Lefkowitz, who advised that Epstein was leaning towards a plea to state charges under a non-prosecu￾tion agreement, and she would be forwarding to Lefkowitz "our last version of the Non-Prosecution Agreement." Acosta asked that Villafaña "make sure they know it[']s only a draft" and reminded her that "[t]he form and language may need polishing." Villafaña responded, "Absolutely. There were a lot of problems with their last attempt. They tried to re-open all the loopholes that I had sewn shut." Villafaña sent to Lefkowitz the draft NPA that she had provided to Lefcourt on September 11, 2007, noting that it was the "last version" and would "avoid [him] having to reinvent the wheel." She also updated the FBI case agents on the status of negotiations, noting that she had told her "chain of command . . . that we are still on for the [September] 25th [to bring charges] . . . , no matter what." After receiving the draft NPA, Lefkowitz asked Villafaña to provide for his review a factual proffer for a federal obstruction of justice charge, and, with respect to the NPA option, asked, "[I]f we go that route, would you intend to make the deferred [sic] prosecu￾tion agreement public?" Villafaña replied that while a federal plea agreement would be part of the court fle and publicly accessible, the NPA "would not be made public or fled with the Court, but it would remain part of our case fle. It probably would be subject to a FOIA [Freedom of Information Act] request, but it is not something that we would distribute without compulsory process."116 Villafaña told OPR that she believed Epstein did not want the NPA to be made public 116 FOIA requires disclosure of government records upon request unless an exemption applies permitting the government to withhold the requested records. See 5 PROT207. § 552. 114a because he "did not want people to believe him to have committed a variety of crimes." As she explained to OPR, Villafaña believed the NPA did not need to be disclosed in its entirety, but she anticipated notifying the victims about the NPA provisions relating to their ability to recover damages. E. The Parties Appear to Reach Agreement on a Plea to Federal Charges Negotiations continued the next day, Tuesday, September 18, 2007. Responding to Villafaña's revised draft of the NPA, Lefkowitz suggested that Epstein plead to one federal charge with a 12-month sentence, followed by one year of supervised release with a requirement for home detention and two years of state probation, with the frst six months of the state sentence to be served under community control. Villafaña replied, "I know that the U.S. Attorney will not go below 18 months of prison/jail time (and I would strongly oppose the suggestion)." Shortly thereafter, Villafaña emailed Acosta, Lourie, and the incoming West Palm Beach manager: Hi all - I think that we may be near the end of our negotiations with Mr. Epstein, and not because we have reached a resolution. As I mentioned yesterday, I spent about 12 hours over the weekend drafting Informations, changing plea agreements, and writing factual proffers. I was supposed to receive a draft agreement from them yesterday, which never arrived. At that time, they were leaning towards pleading only to state charges and doing all of the time in state custody. Late last night I talked to Jay Lefkowitz who asked about Epstein pleading to two twelve- 115a month federal charges with half of his jail time being spent in home confnement pursuant to the guidelines. I told him that I had no objection to that approach but, in the interest of full disclosure, I did not believe that Mr. Epstein would be eligible because he will not be in Zone A or B.117 This morning Jay Lefkowitz called and said that I was correct but, if we could get Mr. Epstein down to 14 months, then he thought he would be eligible. My response: have him plead to two separate Informations. On the frst one he gets 12 months' imprisonment and on the second he gets twelve months, with six served in home confnement, to run consecutively. I just received an e-mail asking if Mr. Epstein could just do 12 months imprisonment instead. As you can see, Mr. Epstein is having second thoughts about doing jail time. I would like to send Jay Lefkowitz an e-mail stating that if we do not have a signed agreement by tomorrow at 5:00, negotiations will end. I have selected tomorrow at 5:00 because it gives them enough time to really negotiate an agreement if they are serious about it, and if not, it gives me one day before the Jewish holiday to get [prepared] for Tuesday . . . [September 25] , when I plan to [fle charges], and it gives the offce suffcient time to review the indictment package. Do you concur? 117 Sentences falling within Zones A or B of the U.S. Sentencing Guidelines permit probation or confnement alternatives to imprisonment. 116a A few minutes later, the incoming West Palm Beach manager emailed Lourie, suggesting that Lourie "talk to Epstein and close the deal."118 Within moments, Lourie replied to the manager, with a copy to Villafaña, reporting that he had just spoken with Lefkowitz and agreed "to two fed[eral] obstruction[] charges (24 month cap) with nonbinding recommendation for 18 months. When [Epstein] gets out, he has to plead to state offenses, including against minor, registrable, and then take one year house arrest/community confnement." By reply email, Villafaña asked Lourie to call her, but there is no record of whether they spoke. F. Defense Counsel Offers New Proposals Substantially Changing the Terms of the Federal Plea Agreement, which the USAO Rejects Approximately an hour after Lourie's email reporting the deal he had reached with Lefkowitz, Lefkowitz sent Villafaña a revised draft plea agreement. Despite the agreement Lourie believed he and Lefkowitz had reached that morning, Lefkowitz's proposal would have resulted in a 16-month federal sentence followed by 8 months of supervised release served in the form of home detention. Lefkowitz also inserted a statement in his proposal explicitly prohibiting the USAO from requesting, initiating, or encouraging immigration authorities to institute immigration proceedings against two of Epstein's female assistants. 118 The manager told OPR that he probably meant this as a joke because in his view the continued back-and-forth communications with defense counsel "was ridiculous," and the only way to "get this deal done" might be to have a direct conversation with Epstein. 117a Villafaña circulated the defense's proposed plea agreement to Lourie and two other supervisors, and expressed frustration that the new defense version incorporated terms that were "completely different from what Jay just told Andy they would agree to." Villafaña also pointed out that the defense "wants us to recommend an improper calculation" of the sentencing guidelines and had added language waiving the preparation of a presentence investigation (PSI) "so he can keep all of his information confdential. I have already told Jay that the PSI language . . . was unacceptable to our office." Of even greater significance, in a follow-up email, Villafaña noted that the defense had removed both the requirement that Epstein plead to a registrable offense and the entire provision relating to monetary damages under 18 PROT208. § 2255. In the afternoon, Villafaña circulated her own proposed "hybrid" plea agreement, frst internally to the management team with a note stating that it "contains the 18/12 split that Jay and Andy agreed to," and then to Lefkowitz. Regarding the prosecution of other individuals, she included the following provision: "This agreement resolves the federal criminal liability of the defendant and any co-conspirators in the Southern District of Florida growing out of any criminal conduct by those persons known to the [USAO] as of the date of this plea agreement," including but not limited to the conspiracy to solicit minors to engage in prostitution. In her email to Lefkowitz, transmitting the plea agreement, Villafaña wrote: Could you share the attached draft with your colleagues. It is in keeping with what Andy communicated to me was the operative "deal." The U.S. Attorney hasn't had a chance to 118a review all of the language, but he agrees with it in principle. [The West Palm Beach manager] and I will both be available at 2:00. . . . One of my suggestions is going to be (again) that we all sit down together in the same room, including Barry [Krischer] and/or Lanna [Belohlavek], so we can hash out the still existing issues and get a signed document. Villafaña also emailed Acosta directly, telling him she planned to meet with Epstein's attorneys to work on the plea agreement, and asking if Acosta would be available to provide fnal approval. Acosta replied, "I don't think I should be part of negotiations. I'd rather leave it to you if that's ok." Acosta told OPR that "absent truly exceptional circumstances," he believed it was important for him "to not get involved" in negotiations, and added, "You can meet, like I did in September, [to] reaffrm the position of the offce, [and] back your AUSA, but ultimately, I think your trial lawyer needs discretion to do their job." Villafaña told OPR, however, that she did not understand Acosta to be giving her discretion to conduct the negotiations as she saw ft; rather, she believed Acosta did not want to engage in face-to-face negotiations because "he wanted to have an appearance of having sort of an arm's length from the deal."119 Villafaña replied to Acosta's 119 As noted throughout the Report, Villafaña's interpretation of her supervisors' motivations for their actions often differed from the supervisors' explanations for their actions. Because it involved subjective interpretations of individuals' motivations, OPR does not reach conclusions regarding the subjects' differing views but includes them as an indication of the communication 119a message, "That is fine. [The West Palm Beach manager] and I will nail everything down, we just want to get a fnal blessing." Negotiations continued throughout the day on Wednesday, September 19, 2007, with Villafaña and Lefkowitz exchanging emails regarding the factual proffer for a plea and the scheduling of a meeting to fnalize the plea agreement's terms. During that exchange, Villafaña made clear to Lefkowitz that the time for negotiating was reaching an end: I hate to have to be frm about this, but we need to wrap this up by Monday. I will not miss my [September 25 charging] date when this has dragged on for several weeks already and then, if things fall apart, be left in a less advantageous position than before the nego￾tiations. I have had an 82-page pros memo and 53-page indictment sitting on the shelf since May to engage in these negotiations. There has to be an ending date, and that date is Monday. Early that afternoon, Lourie - who was participating in the week's negotiations from his new post at the Department in Washington, D.C. - asked Villafaña to furnish him with the last draft of the plea agreement she had sent to defense counsel, and she provided him with the "18/12 split" draft she had sent to Lefkowitz the prior afternoon. After reviewing that draft, Lourie told Villafaña it was a "[g]ood job" but he questioned certain provisions, including whether the USAO's agreement to suspend the investigation and hold all legal process in abeyance should be in the plea issues that hindered the prosecution team. See Chapter Two, Part Three, Section V.E. 120a agreement. Villafaña told Lourie that she had added that paragraph at the "insistence" of the defense, and opined, "I don't think it hurts us." Villafaña explained to OPR that she held this view because "Alex and people above me had already made the decision that if the case was resolved we weren't going to get the computer equipment." At 3:44 p.m. that afternoon, Lefkowitz emailed a "redline" version of the federal plea agreement showing his new revisions, and noted that he was "also working on a deferred [sic] prosecution agreement because it may well be that we cannot reach agree￾ment here." The defense redline version required Epstein to plead guilty to a federal information charging two misdemeanor counts of attempt to intentionally harass a person to prevent testimony, the pending state indictment charging solicitation of prostitution, and a state information charging one count of coercing a person to become a prostitute, in violation of Florida Statute § 796.04 (without regard to age). Neither of the proposed state offenses required sexual offender registration. Epstein would serve an 18-month sentence and a concurrent 60 months on probation on the state charges. The redline version again deleted the provisions relating to damages under 18 PROT209. § 2255 and replaced it with the provision requiring creation of a trust administered by the state court. It retained language proposed by Villafaña, providing that the plea agreement "resolves the federal criminal liability of the defendant and any co-conspirators in the Southern District of Florida growing out of any criminal conduct by those persons known to the [USAO] as of the date of this plea agreement," but also re-inserted the provision promising not to prosecute Epstein's assistants and the statement prohibiting the USAO from requesting, 121a initiating, or encouraging immigration proceedings. It also included a provision stating the government's agreement to forgo a presentence investigation and a promise by the government to suspend the investiga￾tion and withdraw all pending legal process. [79] I think Jay [Lefkowitz] will try to talk you out of a registrable offense. Regardless of the merits of his argument, in order to get us down in time they made us an offer that included pleading to an offense against a minor (encouraging a minor into prostitution) and touted that we should be happy because it was registrable. For that reason alone, I don't think we should consider allowing them to come down from their own offer, either on this issue or on time of incarceration. Lefkowitz attempted to reach Acosta that night, but Acosta directed Villafaña to return the call, and told Lourie that he did not want to open "a backchannel" with defense counsel. Lourie instructed Villafaña, "U can tell [J]ay that [A]lex will not agree to a nonregistration offense." On the morning of Friday, September 21, 2007, Villafaña emailed Acosta informing him that "it looks like we will be [fling charges against] Mr. Epstein on Tuesday," reporting that the charging package was being reviewed by the West Palm Beach manager, and asking if anyone in the Miami offce needed to review it. Villafaña also alerted Lourie that she had spoken that morning to Lefkowitz, who "was waffing" about Epstein pleading to a state charge that required sexual offender registration, and she noted that she 122a would confer with Krischer and Belohlavek "to make sure the defense doesn't try to do an end run." That same morning, Epstein attorney Sanchez, who had not been involved in negotiations for several weeks, emailed Sloman, advising, "[I] want to fnalize the plea deal and there is only one issue outstanding and [I] do not believe that [A]lex has read all the defense submissions that would assist in his deter￾mination on this point . . . [U]pon resolution, we will be prepared to sign as soon as today." From his out-of￾town vacation, Sloman forwarded the email to Acosta, who replied, "Enjo[y] vacation. Working with [M]arie on this." Sloman also forwarded Sanchez's email to Lourie and asked, "Do you know what she's talking about?" Lourie responded that Sanchez "has not been in any negotiations. Don't even engage with yet another cook." J. The USAO Agrees Not to Criminally Charge "Potential Co-Conspirators" Lefkowitz, in the meantime, sent Villafaña a revised draft NPA that proposed an 18-month sentence in the county jail, followed by 12 months of community control, and restored the provision for a trust fund for disbursement to an agreed-upon list of individuals "who seek reimbursement by fling suit pursuant to 18 PROT210. § 2255." This defense draft retained the provision promising not to criminally charge Epstein's four female assistants and unnamed employees of the specific Epstein-owned corporate entity, but also extended the provision to "any potential co-conspirators" for any criminal charge arising from the ongoing federal investigation. This language had evolved from similar language that Villafaña had included in the USAO's 123a earlier proposed draft federal plea agreement.122 Lefkowitz also again included the sentence precluding the government from requesting, initiating, or recom￾mending immigration proceedings against the two assistants who were foreign nationals. At this point, Lefkowitz again sought to speak to Acosta, who replied by email: "I am happy to talk. My caveat is that in the middle of negotiations, u try to avoid[] undermining my staff by allowing 'interlocutor[]y' appeals so to speak so I'd want [M]arie on the call[.] I'll have her set something up." Villafaña sent to Lefkowitz her own revised NPA, telling him it was her "attempt at combining our thoughts," but it had not "been approved by the offce yet." She inserted solicitation of minors to engage in prostitution, a registrable offense, as the charge to which Epstein would plead guilty; proposed a joint recommendation for a 30-month sentence, divided into 18 months in the county jail and 12 months of community control; and amended the § 2255 provision.123 Villafaña's revision retained the provision suspending the investigation and holding all legal process in abeyance, and she incorporated the non￾prosecution provision while slightly altering it to apply 122 The language in the USAO's draft federal plea agreement stated, "This agreement resolves the federal criminal liability of the defendant and any co-conspirators in the Southern District of Florida growing out of any criminal conduct by those persons known to the [USAO] . . . ." 123 Villafaña noted that she had consulted with a USAO employee who was a "former corporate counsel from a hospital" about the § 2255 language, and thought that the revised language "addresses the concern about having an unlimited number of claimed victims, without me trying to bind girls who I do not represent." 124a to "any potential co-conspirator of Epstein, including" the four named assistants, and deleting mention of the corporate entity employees. Finally, Villafaña deleted mention of immigration proceedings, but advised in her transmittal email that "we have not and don't plan to ask immigration" proceedings to be initiated.124 Later that day, Villafaña alerted Lourie (who had arrived in Florida from Washington, D.C. early that afternoon) and the new West Palm Beach manager (copying her frst-line supervisor and co-counsel) that she had included language that defense counsel had requested "regarding promises not to prosecute other people," and commented, "I don't think it hurts us." There is no documentation that Lourie, the West Palm Beach manager, or anyone else expressed disagreement with Villafaña's assessment. Rather, within a few minutes, Villafaña re-sent her email, adding that defense counsel was persisting in including an immigration waiver in the agreement, to which Lourie responded, "No way. We don't put that sort of thing in a plea agreement." Villafaña replied to Lourie, indicating she would pass that along to defense counsel and adding, "Any other thoughts?" When Lourie gave no further response, Villafaña informed defense counsel that Lourie had rejected the proposed immigration language. OPR questioned the subjects about the USAO's agreement not to prosecute "any potential co￾124 Villafaña gave OPR an explanation similar to that given by the case agents - that an ICE Special Agent had been involved in the early stages of the federal investigation of Epstein, and Villafaña believed the agent knew two of Epstein's female assistants were foreign nationals and would have acted appropri￾ately on that information. Villafaña also said that the USAO generally did not get involved in immigration issues. 125a conspirators." Lourie did not recall why the USAO agreed to it, but he speculated that he left that provision in the NPA because he believed at the time that it benefted the government in some way. In particular, Lourie conjectured that the promise not to prosecute "any potential co-conspirators" protected victims who had recruited others and thus potentially were co-conspirators in Epstein's scheme. Lourie also told OPR, "I bet the answer was that we weren't going to charge" Epstein's accomplices, because Acosta "didn't really want to charge Epstein" in federal court. Sloman similarly said that he had the impression that the non-prosecution provision was meant to protect named co-conspirators who were also victims, "in a sense," of Epstein's conduct. Although later press coverage of the Epstein case focused on Epstein's connection to prominent fgures and suggested that the non-prosecution provision protected these individuals, Sloman told OPR that it never occurred to him that the reference to potential co-conspirators was directed toward any of the high-profle individuals who were at the time or subsequently linked with Epstein.125 Acosta did not recall the provision or any discussions about it. He speculated that if he read the non￾prosecution provision, he likely assumed that Villafaña and Lourie had "thought this through" and "addressed it for a reason." The West Palm Beach manager, who had only limited involvement at this stage, told OPR that the provision was "highly unusual," and he had "no clue" why the USAO agreed to it. Villafaña told OPR that, apart from the women named in the NPA, the investigation had not developed 125 Sloman also pointed out that the NPA was not a "global resolution" and other co-conspirators could have been prosecuted "by any other [U.S. Attorney's] offce in the country." 126a evidence of "any other potential co-conspirators. So, . . . we wouldn't be prosecuting anybody else, so why not include it? . . . I just didn't think that there was anybody that it would cover." She conceded, however, that she "did not catch the fact that it could be read as broadly as people have since read it." K. The USAO Rejects Defense Efforts to Eliminate the Sexual Offender Registration Requirement On the afternoon of Friday, September 21, 2007, State Attorney Krischer informed Villafaña that Epstein's counsel had contacted him and Epstein was ready to agree "to all the terms" of the NPA - except for sexual offender registration. According to Krischer, defense counsel had proposed that registration be deferred, and that Epstein register only if state or federal law enforcement felt, at any point during his service of the sentence, that he needed to do so. Krischer noted that he had "reached out" to Acosta about this proposal but had not heard back from him. Villafaña responded, "I think Alex is calling you now." Villafaña told OPR that, to her knowledge, Acosta called Krischer to tell him that registration was not a negotiable term.126 Later that afternoon, Villafaña emailed Krischer for information about the amount of "gain time" Epstein would earn in state prison. Villafaña explained in her email that she wanted to include a provision in the NPA specifying that Epstein "will actually be in jail at least a certain number of days to make sure he doesn't try to 'convince' someone with the Florida prison 126 Krischer told OPR that he did not recall meeting or having interactions with Acosta regarding the Epstein case or any other matter. 127a authorities to let him out early." Krischer responded that under the proposal as it then stood, Epstein would serve 15 months. He also told Villafaña that a plea to a registrable offense would not prevent Epstein from serving his time "at the stockade" - the local minimum security detention facility.127 [139] authority to deviate from the Ashcroft Memo's "most serious readily provable offense" requirement. Although Acosta could not recall specifcally how or by whom the decision was made to allow Epstein to plead to only one of the three charges identifed on the original term sheet, or how or by whom the decision was made to reduce the sentencing requirement from two years to 18 months, Acosta was aware of these changes. He reviewed and approved the fnal NPA before it was signed. Department policy gave him the discretion to approve the agreement, notwithstanding any arguable failure to comply with the "most serious readily provable offense" requirement. Furthermore, the Ashcroft Memo does not appear to preclude a U.S. Attorney from deferring to a state prosecution, so it is not clear that the Memo's terms apply to a situation involving state charges. Accordingly, OPR concludes that the negotiation of an agreement that allowed Epstein to resolve the federal investigation in return for the imposition of an 18-month state sentence did 127 The State Attorney concluded his email: "Glad we could get this worked out for reasons I won't put in writing. After this is resolved I would love to buy you a cup at Starbucks and have a conversation." Villafaña responded, "Sounds great." When asked about this exchange during her OPR interview, Villafaña said: "Everybody 128a not violate a clear and unambiguous standard and therefore does not constitute professional misconduct. 2. The USAO's Agreement Not to Prosecute Unidentifed "Potential Co-Conspirators" Did Not Violate a Clear and Unambiguous Department Policy Several witnesses told OPR that they believed the government's agreement not to prosecute unidentifed "potential co-conspirators" amounted to "transactional immunity," which the witnesses asserted is prohibited by Department policy. Although "use immunity" pro￾tects a witness only against the government's use of his or her immunized testimony in a prosecution of the witness, and is frequently used by prosecutors, transactional immunity protects a witness from prosecution altogether and is relatively rare. OPR found no policy prohibiting a U.S. Attorney from declining to prosecute third parties or providing transactional immunity. One section of the USAM related to immunity but applied only to the exchange of "use immunity" for the testimony of a witness who has asserted a Fifth Amendment privilege. See USAM § 9-23.100 et seq. Statutory provisions relating to immunity also address the same context. See 18 PROT211. § 6002; 21 PROT212. § 884. Moreover, apart from voluntariness or enforceability concerns, courts have not suggested that a prosecutor's promise not to prosecute a third party amounts to an inappropriate exercise of prosecutorial discretion. See, e.g., Marquez, 909 PROT213 at 741-43; Kemp, 760 PROT214 at 1248; Stinson, 839 So. 2d at 909; Frazier, 697 So. 2d 945. OPR found no clear and unambiguous standard that was violated by the USAO's agreement not to prosecute "potential co-conspirators," and therefore cannot conclude that negotiating or approving this provision violated a clear 129a and unambiguous standard or constituted professional misconduct. Notwithstanding this fnding, in Section IV of this Part, OPR includes in its criticism of Acosta's decision to approve the NPA his approval of this provision without considering its potential consequences, includ￾ing to whom it would apply. [140]