Case 22-1426, Document 79, 06/29/2023, 3536060, Page1 of 93

22-1426 To Be Argued By:

MAURENE COMEY

United States Court of Appeals

FOR THE SECOND CIRCUIT
Docket No. 22-1426

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

BRIEF FOR THE UNITED STATES OF AMERICA

DAMIAN WILLIAMS ,
United States Attorney for the
Southern District of New York,
Attorney for the United States
of America.
MAURENE COMEY, One St. Andrew’s Plaza
ALISON MOE , New York, New York 10007
LARA POMERANTZ , (212) 637-2200
WON S. SHIN ,
Assistant United States Attorneys,
Of Counsel.
Case 22-1426, Document 79, 06/29/2023, 3536060, Page2 of 93

TABLE OF CONTENTS
PAGE

Preliminary Statement . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

A. The Government’s Case . . . . . . . . . . . . . . . . 2

1. Sexual Abuse of Jane . . . . . . . . . . . . . . . 6

2. Sexual Abuse of Kate . . . . . . . . . . . . . . . 7

3. Sexual Abuse of Annie Farmer . . . . . . . 8

4. Sexual Abuse of Virginia Roberts . . . . . 9

5. Sexual Abuse of Carolyn . . . . . . . . . . . 10

6. Sexual Abuse of Melissa . . . . . . . . . . . 12

B. The Defense Case, Verdict, and

Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . 12

ARGUMENT:

POINT I—The District Court Correctly Concluded

That Jeffrey Epstein’s Non-Prosecution
Agreement Does Not Bar Maxwell’s Prosecution
in the Southern District of New York . . . . . . . 13

A. Relevant Facts . . . . . . . . . . . . . . . . . . . . . . 14

B. Applicable Law . . . . . . . . . . . . . . . . . . . . . . 15

C. Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . 16

1. Maxwell Is Not Entitled to Enforce the

NPA . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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ii
PAGE

2. The NPA’s Terms Bind Only the

USAO-SDFL . . . . . . . . . . . . . . . . . . . . . 18

3. The District Court Did Not Abuse Its

Discretion in Declining to Conduct a
Hearing . . . . . . . . . . . . . . . . . . . . . . . . . 27

POINT II—The District Court Correctly Concluded

that the Charges Were Timely . . . . . . . . . . . . . 28

A. Applicable Law . . . . . . . . . . . . . . . . . . . . . . 28

1. Standard of Review . . . . . . . . . . . . . . . 28

2. Statutes of Limitations for Offenses

Against Children (18 U.S.C. § 3283) and
Child Abduction and Sex Offenses (18
U.S.C. § 3299). . . . . . . . . . . . . . . . . . . . 29

3. Retroactivity under Landgraf . . . . . . . 31

B. Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . 31

1. There Was No Impermissible

Retroactivity in Applying Section 3283
to Maxwell . . . . . . . . . . . . . . . . . . . . . . 31

a. There Was No Retroactivity as to

Counts Three and Six . . . . . . . . . . 32

b. Applying Section 3283 to Maxwell

Complies with Landgraf . . . . . . . . 33

i. Landgraf Step One . . . . . . . . . 33

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ii. Landgraf Step Two . . . . . . . . 37

2. Section 3283 Reaches Counts Three

and Four . . . . . . . . . . . . . . . . . . . . . . . . 42

a. Counts Three and Four Are

Offenses Involving the Sexual
Abuse of a Child . . . . . . . . . . . . . . 43

b. Maxwell’s Argument for Use of

a Categorical Approach Lacks
Merit . . . . . . . . . . . . . . . . . . . . . . . 46

POINT III—The District Court Did Not Abuse Its

Discretion in Concluding that Juror 50 Could
Be Fair and Impartial Notwithstanding His
Inadvertent Mistakes on His Juror
Questionnaire . . . . . . . . . . . . . . . . . . . . . . . . . . 49

A. Relevant Facts . . . . . . . . . . . . . . . . . . . . . . 50

1. The Jury Selection Process . . . . . . . . . 50

2. Juror 50 . . . . . . . . . . . . . . . . . . . . . . . . 51

3. The Hearing . . . . . . . . . . . . . . . . . . . . . 53

4. The District Court’s Decision . . . . . . . 55

B. Applicable Law . . . . . . . . . . . . . . . . . . . . . . 56

C. Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . 59
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POINT IV—The District Court’s Response to a Jury

Note Did Not Constructively Amend the
Indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

A. Relevant Facts . . . . . . . . . . . . . . . . . . . . . . 66

B. Applicable Law . . . . . . . . . . . . . . . . . . . . . . 70

C. Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . 71

POINT V—The Sentence Was Procedurally

Reasonable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76

A. Applicable Law . . . . . . . . . . . . . . . . . . . . . . 76

B. Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . 76

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

TABLE OF AUTHORITIES

Cases:
Bochese v. Town of Ponce Inlet,
405 F.3d 964 (11th Cir. 2005) . . . . . . . . . . . . . . . 18
Bridges v. United States,
346 U.S. 209 (1953) . . . . . . . . . . . . . . . . . . . . . . . . 48
Burgess v. United States,
552 U.S. 124 (2008) . . . . . . . . . . . . . . . . . . . . . . . . 45
Christopher v. SmithKline Beecham Corp.,
567 U.S. 142 (2012) . . . . . . . . . . . . . . . . . . . . . . . . 45
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v
PAGE

Cruz v. Maypa,
773 F.3d 138 (4th Cir. 2014) . . . . . . . . . . . . . 39, 40
Falter v. United States,
23 F.2d 420 (2d Cir. 1928) . . . . . . . . . . . . . . . . . . 40
In re Enter. Mort. Acceptance Co. Sec. Litig.,
391 F.3d 401 (2d Cir. 2004) . . . . . . . . . . 34, 38, 39
Kawashima v. Holder,
565 U.S. 478 (2012) . . . . . . . . . . . . . . . . . . . . . . . . 48
Kirtsaeng v. John Wiley & Sons, Inc.,
568 U.S. 519 (2013) . . . . . . . . . . . . . . . . . . . . . . . . 20
Landgraf v. USI Film Products,
511 U.S. 244 (1994) . . . . . . . . . . . . . . 31, 33, 40, 41
Leocal v. Ashcroft,
543 U.S. 1 (2004) . . . . . . . . . . . . . . . . . . . . . . . 47, 48
McDonough Power Equip., Inc. v. Greenwood,
464 U.S. 548 (1984) . . . . . . . . . . . . . . . . . . . . . 56, 57
Nijhawan v. Holder,
557 U.S. 29 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . 47
San Pedro v. United States,
79 F.3d 1065 (11th Cir. 1996) . . . . . . . . . . . . . . . 25
Stogner v. California,
539 U.S. 607 (2003) . . . . . . . . . . . . . . . . . . . . . 36, 39
Tanner v. United States,
483 U.S. 107 (1987) . . . . . . . . . . . . . . . . . . . . . . . . 56
Thompson v. United States,
431 F. App’x 491 (7th Cir. 2011) . . . . . . . . . . . . . 26
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vi
PAGE

United States v. Annabi,

771 F.2d 670 (2d Cir. 1985) . . . . . . . . . . . . . . 15, 23
United States v. Archer,
977 F.3d 181 (2d Cir. 2020) . . . . . . . . . . . . . . . . . 58
United States v. Ashraf,
320 F. App’x 26 (2d Cir. 2009) . . . . . . . . . . . . . . . 24
United States v. Baker,
899 F.3d 123 (2d Cir. 2018) . . . . . . . . . . . . . . . . . 57
United States v. Banki,
685 F.3d 99 (2d Cir. 2012) . . . . . . . . . . . . . . . . . . 71
United States v. Ben Zvi,
242 F.3d 89 (2d Cir. 2001) . . . . . . . . . . . . . . . . . . 32
United States v. Botti,
711 F.3d 299 (2d Cir. 2013) . . . . . . . . . . . . . . . . . 78
United States v. Brown,
No. 99-1230(L),
2002 WL 34244994 (2d Cir. 2004) . . . . . . . . . . . . 24
United States v. Calbas,
821 F.2d 887 (2d Cir. 1987) . . . . . . . . . . . . . . . . . 58
United States v. Carpenter,
680 F.3d 1101 (9th Cir. 2012) . . . . . . . . . . . . 44, 45
United States v. Cavera,
550 F.3d 180 (2d Cir. 2008) . . . . . . . . . . . . . . . . . 76
United States v. Countentos,
651 F.3d 809 (8th Cir. 2011) . . . . . . . . . . . . . . . . 49
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vii
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United States v. Cramer,

777 F.3d 597 (2d Cir. 2015) . . . . . . . . . . . . . . . . . 76
United States v. D’Amelio,
693 F.3d 412 (2d Cir. 2012) . . . . . . . . . . . . . . . . . 70
United States v. Davis,
139 S. Ct. 2319 (2019). . . . . . . . . . . . . . . . . . . . . . 47
United States v. Diehl,
775 F.3d 714 (5th Cir. 2015) . . . . . . . . . . . . . . . . 45
United States v. Dove,
884 F.3d 138 (2d Cir. 2018) . . . . . . . . . . . . . . 70, 71
United States v. Eppolito,
543 F.3d 25 (2d Cir. 2008) . . . . . . . . . . . . . . . . . . 32
United States v. Feldman,
939 F.3d 182 (2d Cir. 2019) . . . . . . . . . . . . . . . . . 17
United States v. Fla. W. Int’l Airways, Inc.,
853 F. Supp. 2d 1209 (S.D. Fla. 2012) . . . . . . . . . 18
United States v. Gonzalez,
93 F. App’x 268 (2d Cir. 2004) . . . . . . . . . . . . 19, 24
United States v. Greenberg,
835 F.3d 295 (2d Cir. 2016) . . . . . . . . . . . . . . . . . 16
United States v. Greer,
285 F.3d 158 (2d Cir. 2002) . . . . . . . . . . . . . . . . . 63
United States v. Ianniello,
866 F.2d 540 (2d Cir. 1989) . . . . . . . . . . 56, 58, 64
United States v. Jeffries,
405 F.3d 682 (8th Cir. 2005) . . . . . . . . . . . . . 34, 41
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viii
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United States v. Khalupsky,

5 F.4th 279 (2d Cir. 2021) . . . . . . . . . . . . . . . 70, 71
United States v. Kim,
471 F. App’x 82 (2d Cir. 2012) . . . . . . . . . . . . . . . 73
United States v. Langford,
990 F.2d 65 (2d Cir. 1993) . . . . . . . . . . . . . . . . . . 60
United States v. Lebedev,
932 F.3d 40 (2d Cir. 2019) . . . . . . . . . . . . . . . 70, 75
United States v. Lopez,
944 F.2d 33 (1st Cir. 1991) . . . . . . . . . . . . . . . . . . 17
United States v. Mariamma Viju,
No. 15 Cr. 240,
2016 WL 107841 (N.D. Tex. Jan. 11, 2016). . . . . 17
United States v. McCourty,
562 F.3d 458 (2d Cir. 2009) . . . . . . . . . . . . . . . . . 56
United States v. McCoy,
995 F.3d 32 (2d Cir. 2021) . . . . . . . . . . . . . . . . . . 60
United States v. Miller,
911 F.3d 638 (1st Cir. 2018) . . . . . . . . . . . . . . . . . 39
United States v. Monaco,
194 F.3d 381 (2d Cir. 1999) . . . . . . . . . . . . . . . . . 32
United States v. Montague,
67 F.4th 520 (2d Cir. 2023) . . . . . . . . . . . . . . . . . 16
United States v. Morgan,
393 F.3d 192 (D.C. Cir. 2004). . . . . . . . . . . . . . . . 48
Case 22-1426, Document 79, 06/29/2023, 3536060, Page10 of 93

ix
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United States v. Moten,

582 F.2d 654 (2d Cir. 1978) . . . . . . . . . . 53, 58, 64
United States v. Nader,
425 F. Supp. 3d 619 (E.D. Va. 2019) . . . . . . . . . . 41
United States v. Noveck,
271 U.S. 201 (1926) . . . . . . . . . . . . . . . . . . . . . . . . 48
United States v. Padilla,
186 F.3d 136 (2d Cir. 1999) . . . . . . . . . . . . . . . . . 16
United States v. Payne,
591 F.3d 46 (2d Cir. 2010) . . . . . . . . . . . . . . . . . . 24
United States v. Piette,
45 F.4th 1142 (10th Cir. 2022) . . . . . . . . . . . . . . . 41
United States v. Prisco,
391 F. App’x 920 (2d Cir. 2010) . . . . . . . . . . . 16, 24
United States v. Restrepo,
890 F. Supp. 180 (E.D.N.Y. 1995) . . . . . . . . . . . . 25
United States v. Richardson,
512 F.2d 105 (3d Cir. 1975) . . . . . . . . . . . . . . . . . 41
United States v. Rommy,
506 F.3d 108 (2d Cir. 2007) . . . . . . . . . . . . . . 72, 73
United States v. Rourke,
74 F.3d 802 (7th Cir. 1996) . . . . . . . . . . . . . . . . . 26
United States v. Russo,
801 F.2d 624 (2d Cir. 1986) . . . . . . . . . . . . . . 16, 22
United States v. Rutigliano,
790 F.3d 389 (2d Cir. 2015) . . . . . . . . . . . . . . . . . 33
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United States v. Salameh,

152 F.3d 88 (2d Cir. 1998) . . . . . . . . . . . 16, 19, 37
United States v. Salmonese,
352 F.3d 608 (2d Cir. 2003) . . . . . . . . . . . . . . . . . 75
United States v. Sampson,
898 F.3d 270 (2d Cir. 2018) . . . . . . . . . . . . . . . . . 28
United States v. Scharton,
285 U.S. 518 (1932) . . . . . . . . . . . . . . . . . . . . . . . . 48
United States v. Schneider,
801 F.3d 186 (3d Cir. 2015) . . . . . . . . . . 45, 46, 47
United States v. Sensi,
No. 08 Cr. 253 (WWE),
2010 WL 2351484 (D. Conn. June 7, 2010) . . . . . 46
United States v. Shaoul,
41 F.3d 811 (2d Cir. 1994) . . . . . . . . . . . . . . . . . . 60
United States v. Stewart,
433 F.3d 273 (2d Cir. 2006) . . . . . . . . . . . . . . . . . 57
United States v. Sure Chief,
438 F.3d 920 (9th Cir. 2006) . . . . . . . . . . . . . 35, 41
United States v. Teman,
465 F. Supp. 3d 277 (S.D.N.Y. 2020) . . . 58, 59, 60
United States v. Torres,
128 F.3d 38 (2d Cir. 1997) . . . . . . . . . . . 57, 63, 64
United States v. Vickers,
No. 13 Cr. 128 (RJA),
2014 WL 1838255 (W.D.N.Y. May 8, 2014). . . . . 45
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United States v. Walters,

910 F.3d 11 (2d Cir. 2018) . . . . . . . . . . . . . . . . . . 16
United States v. Wilkerson,
361 F.3d 717 (2d Cir. 2004) . . . . . . . . . . . . . . . . . 26
United States v. Wilson,
216 F.3d 645 (7th Cir. 2000) . . . . . . . . . . . . . . . . 17
United States ex rel. Owen v. McMann,
435 F.2d 813 (2d Cir. 1970) . . . . . . . . . . . . . . . . . 64
Vernon v. Cassadaga Valley Cent. School Dist.,
49 F.3d 886 (2d Cir. 1995) . . . . . . . . . . . . . . . 37, 38
Warger v. Shauers,
574 U.S. 40 (2014) . . . . . . . . . . . . . . . . . . . . . . 66, 67
Weingarten v. United States,
865 F.3d 48 (2d Cir. 2017) . . . . . . . . . . . . . . passim

Statutes, Rules & Other Authorities:

18 U.S.C. § 371 . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 32
18 U.S.C. § 1591(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
18 U.S.C. § 1623 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
18 U.S.C. § 2422 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
18 U.S.C. § 2423(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
18 U.S.C. § 2423(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
18 U.S.C. § 3282(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
18 U.S.C. § 3283 . . . . . . . . . . . . . . . . . . . . . . . . . passim
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18 U.S.C. § 3299 . . . . . . . . . . . . . . . . . . . 29, 30, 31, 42

18 U.S.C. § 3509(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
18 U.S.C. § 3509(a)(8) . . . . . . . . . . . . . . . . . . . . . 44, 46
18 U.S.C. § 3509(k) . . . . . . . . . . . . . . . . . . . . . . . . 29, 43
18 U.S.C. § 3553(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
28 U.S.C. § 547 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
N.Y. Penal Law § 130.55 . . . . . . . . . . . . . . . . . . . . . . 68
Pub. L. No. 101-647 . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Pub. L. No. 103-322 . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Pub. L. No. 108-21 . . . . . . . . . . . . . . . . . . . . . . . . 30, 34
Pub. L. No. 109-162 . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Pub. L. No. 109-248 . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Fed. R. Evid. 606(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . 58
Fed. R. Evid. 606(b)(2)(A) . . . . . . . . . . . . . . . . . . . . . 65
U.S.S.G. § 3B1.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
H.R. Conf. Rep. No. 108-66 (2003) . . . . . . . . . . . 29, 35
American Conflicts Law (5th ed. 2021). . . . . . . . 24, 25
2 Attorney-Client Privilege in the United States
§ 12:10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
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United States Court of Appeals

FOR THE SECOND CIRCUIT
Docket No. 22-1426

UNITED STATES OF AMERICA,

Appellee,
—v.—

GHISLAINE MAXWELL, also known as Sealed

Defendant 1,
Defendant-Appellant.

BRIEF FOR THE UNITED STATES OF AMERICA

Preliminary Statement
Ghislaine Maxwell appeals from a judgment of con-
viction entered on June 29, 2022 in the United States
District Court for the Southern District of New York,
by the Honorable Alison J. Nathan, United States Cir-
cuit Judge, sitting by designation, following a four-
and-a-half-week jury trial.
Superseding Indictment S2 20 Cr. 330 (AJN) (the
“Indictment”) was filed on March 29, 2021, in eight
counts. Count One charged Maxwell with conspiracy
to entice minors to travel to engage in illegal sex acts,
in violation of 18 U.S.C. § 371. Count Two charged
Case 22-1426, Document 79, 06/29/2023, 3536060, Page15 of 93

Maxwell with enticement of a minor, in violation of 18

U.S.C. §§ 2422 and 2. Count Three charged Maxwell
with conspiracy to transport minors to engage in ille-
gal sexual activity, in violation of 18 U.S.C. § 371.
Count Four charged Maxwell with transportation of a
minor with intent to engage in illegal sexual activity,
in violation of 18 U.S.C. §§ 2423(a) and 2. Count Five
charged Maxwell with sex trafficking conspiracy, in vi-
olation of 18 U.S.C. § 371. Count Six charged Maxwell
with sex trafficking of a minor, in violation of 18 U.S.C.
§§ 1591(a) & (b)(2) and 2. Counts Seven and Eight
charged Maxwell with perjury, in violation of 18
U.S.C. § 1623.
Trial on Counts One through Six commenced on
November 29, 2021, and ended on December 29, 2021,
when the jury found Maxwell guilty on Counts One
and Three through Six, and acquitted Maxwell on
Count Two.
On June 29, 2022, Judge Nathan sentenced Max-
well to a term of 240 months’ imprisonment, to be fol-
lowed by five years’ supervised release, and imposed a
$750,000 fine and a $300 mandatory special assess-
ment.
Maxwell is serving her sentence.

Statement of Facts

A. The Government’s Case

The Government’s evidence at trial established
that over the course of a decade, Maxwell facilitated
and participated in the sexual abuse of multiple young
girls. From 1994 to 2004, Maxwell and Jeffrey Epstein
Case 22-1426, Document 79, 06/29/2023, 3536060, Page16 of 93

worked together to identify girls, groom them, and

then entice them to travel and transport them to Ep-
stein’s properties in New York, Florida, New Mexico,
and elsewhere. The girls—some of whom were as
young as 14 years old—were then sexually abused, of-
ten under the guise of a “massage.”
The evidence at trial included, among other things,
the testimony of four women who described the sexual
abuse they suffered at the hands of Maxwell and Ep-
stein; the testimony of former employees of Epstein
and Maxwell; the testimony of law enforcement offic-
ers; corroborating physical evidence, including photo-
graphs of and evidence recovered from searches of Ep-
stein’s residences and Maxwell and Epstein’s black ad-
dress book; and other corroborating records, such as
flight logs of Epstein’s private planes and FedEx rec-
ords.
Beginning in approximately 1991, Maxwell had a
close and intimate relationship with Epstein.
(Tr.1494-96; GX-422). 1 Maxwell was Epstein’s girl-
friend for many years, until the early 2000s, after

—————
1 “Tr.” refers to the trial transcript; “GX” refers to
a Government exhibit at trial; “Voir Dire Tr.” refers to
the voir dire transcript; “Br.” refers to Maxwell’s brief
on appeal; “A.” refers to the appendix filed with that
brief; “SA” refers to the supplemental appendix filed
with this brief; and “Dkt.” refers to an entry on the Dis-
trict Court’s docket for this case. Unless otherwise
noted, quotations omit internal quotation marks, cita-
tions, alterations, and footnotes.
Case 22-1426, Document 79, 06/29/2023, 3536060, Page17 of 93

which Maxwell and Epstein remained close friends.

(Tr.1494-96; GX-422). For over a decade, Maxwell
traveled with Epstein, a multi-millionaire, on his pri-
vate planes and mingled with rich and famous people,
while enjoying a life of extraordinary luxury. (Tr.96-
99, 233-34, 303-04, 1194). Maxwell and Epstein spent
time together in Epstein’s various properties, includ-
ing his mansion on the Upper East Side in Manhattan,
his villa in Palm Beach, his ranch in New Mexico, his
apartment in Paris, and his private island in the U.S.
Virgin Islands. (Tr.99). Maxwell also received a town-
house that Epstein bought for her in New York City,
and Epstein transferred more than $23 million to Max-
well during the timeframe of the conspiracy. (Tr.1194,
1310-17).
In addition to her role as Epstein’s girlfriend, Max-
well also supervised Epstein’s households as “the lady
of the house.” (Tr.95, 783-84). When she took charge of
Epstein’s homes, she imposed strict rules for staff,
some of which were included in a household manual
dictating the operation of the Palm Beach residence.
(Tr.807-08, 823-31).
To protect her criminal activities from exposure,
Maxwell fostered a culture of silence at Epstein’s
homes. (Tr.784, 826). The household manual made
clear that staff were to “see nothing, hear nothing, say
nothing, except to answer a question directed at” that
staff member. (Tr.826). Maxwell directed Juan Alessi,
the former manager of Epstein’s Palm Beach villa, to
speak to Epstein only when spoken to and not to look
Epstein in the eyes. (Tr.784).
Case 22-1426, Document 79, 06/29/2023, 3536060, Page18 of 93

This culture of silence provided cover for Maxwell

and Epstein to sexually abuse young girls. In the early
phase of the conspiracy, between 1994 and 2001, Max-
well and Epstein identified vulnerable girls, typically
from single-mother households and difficult financial
circumstances. (Tr.295, 1178, 2051-52). Maxwell and
Epstein then isolated the girls, spending time with
them away from their family and friends. (Tr.296-99,
1175-82, 2069-70, 2077-79). During that time, they
groomed the girls through techniques such as giving
them gifts, pretending to be friends, and building
trust. (Tr.298-303, 348, 2079-81). Maxwell and Ep-
stein then normalized sexual situations and sexual
touching. (Tr.300-01, 2081-84). Finally, they transi-
tioned to sexual abuse, often through the pretext of
giving Epstein a massage. (Tr.306-15, 319-23, 1183-88,
2084-88). 2
In the later phase of the scheme, from 2001 through
2004, Maxwell and Epstein developed a stream of girls
who recruited each other to visit Epstein at his Palm
Beach residence. (Tr.1518-25, 1543-46). Maxwell and
Epstein paid young girls hundreds of dollars in cash in
—————
2 These techniques were the textbook methods of
child predators. At trial, Dr. Lisa Rocchio, an expert in
psychology with a specialized expertise in traumatic
stress and interpersonal violence, explained that chil-
dren are most frequently sexually abused through
grooming and coercion in the context of a relationship.
(Tr.713). Dr. Rocchio explained that abusers use a se-
ries of deceptive tactics to engage a child in sexual
abuse. (Tr.715-20).
Case 22-1426, Document 79, 06/29/2023, 3536060, Page19 of 93

exchange for meeting Epstein to be sexually abused,

under the pretext of giving Epstein a massage.
(Tr.1518-25, 1540-41, 1544-46). Once a girl was intro-
duced to these sexualized massages, she was offered
more money if she brought other girls to engage in sex-
ualized massages. (Tr.1544-45).
The trial evidence focused on six girls who suffered
abusive sexual contact as a result of Maxwell’s crimi-
nal actions: Jane, Kate, Annie, Carolyn, Virginia, and
Melissa.

1. Sexual Abuse of Jane

Maxwell and Epstein met Jane in 1994 when she
was just 14 years old at a summer camp for talented
kids. (Tr.290-94). Jane was particularly vulnerable, as
her father had just died (a fact that she told both Ep-
stein and Maxwell), and her family was struggling fi-
nancially. (Tr.293-94). Maxwell and Epstein cultivated
a relationship with Jane, spending time with her at
Epstein’s Palm Beach home and taking her to the mov-
ies and shopping. (Tr.295-302, 348). Maxwell and Ep-
stein gave Jane gifts, and Jane came to look up to Max-
well like an older sister figure. (Tr.298-301).
Maxwell and Epstein sexually abused Jane start-
ing when she was 14 years old, and the sexual abuse
continued for years. (Tr.306-15). When Jane was still
only 14 years old, Maxwell and Epstein instructed
Jane to follow them to Epstein’s bedroom where Max-
well and Epstein fondled each other, casually giggling,
while Epstein asked Jane to take her top off. (Tr.307).
After this sexual interaction, Maxwell and Epstein
taught Jane how Epstein liked to be massaged and
Case 22-1426, Document 79, 06/29/2023, 3536060, Page20 of 93

gave Jane instructions about touching Epstein’s penis.

(Tr.308-11). Jane was repeatedly sexually abused by
Epstein between the ages of 14 and 16 years old, and
Maxwell was frequently in the room when the abuse
happened. (Tr.307-15). Over time, the abuse escalated,
as Epstein used vibrators on Jane, put his fingers in
Jane’s vagina, and asked Jane to straddle his face.
(Tr.319-20). Maxwell sometimes touched Jane, includ-
ing on her breasts, during these incidents. (Tr.311).
Jane also traveled with Maxwell (who assisted Jane in
making travel arrangements) and Epstein to Epstein’s
townhouse in New York City and his ranch in New
Mexico, where she was sexually abused. (Tr.316-24).

2. Sexual Abuse of Kate

Maxwell and Epstein’s sexual abuse of Kate started
in 1994, around the same time that Maxwell and Ep-
stein started sexually abusing Jane. (Tr.1172, 1179-
86). After Kate, then 17 years old, told Maxwell that
she lived alone with her mother and had a difficult
home life, Maxwell introduced Kate to Epstein in Lon-
don. (Tr.1178-82). Maxwell delivered Kate to a naked
Epstein in Maxwell’s own home for massages and told
Kate to “have a good time.” (Tr.1182-89). During these
massages, Epstein initiated sexual contact. (Id.).
Kate traveled to meet both Maxwell and Epstein in
Palm Beach, the Virgin Islands, and New York City
between the ages of 18 and 24. (Tr.1190-98). Epstein
initiated sexual activity with Kate every time she vis-
ited him. (Id.). Maxwell brought up sexual topics with
Kate, ranging from talking about how sexually de-
manding Epstein was to asking if Kate knew “anybody
Case 22-1426, Document 79, 06/29/2023, 3536060, Page21 of 93

who could come and give Jeffrey a blow job” to remark-

ing that Epstein liked cute, young, pretty girls like
Kate. (Tr.1191-93).
When Kate was approximately 18 years old, she
visited Epstein and Maxwell in Palm Beach. (Tr.1199).
Maxwell left a schoolgirl outfit for Kate and said it
would be fun for Kate to wear for Epstein. (Tr.1200-
01). Kate—alone in a place she had never previously
visited—complied. (Id.). Epstein initiated sexual con-
tact with Kate and engaged in a sex act with her.
(Tr.1202). Later that day, Maxwell asked Kate if she
had fun and told Kate that she was a “good girl” and
“one of [Epstein’s] favorites.” (Tr.1202). Epstein en-
gaged in unwanted sexual activity with Kate multiple
times during that same trip. (Id.).

3. Sexual Abuse of Annie Farmer

Maxwell also took steps to normalize sexual contact
with Annie Farmer, who was then 16 years old. Annie
first met Epstein on a trip to New York, where she and
her older sister visited Epstein’s Manhattan town-
house, and during which Epstein began to groom An-
nie by stroking her hand and leg while watching a
movie with her. (Tr.2056-61). In the spring of 1996,
Annie’s mother, at Epstein’s request, agreed to send
Annie to Epstein’s ranch in New Mexico for a retreat
for a group of students who were academically gifted.
(Tr.2069-70, 2253-55). Annie felt more comfortable go-
ing once she understood that Maxwell, a grown woman
in a romantic relationship with Epstein, would be
there. (Tr.2077).
Case 22-1426, Document 79, 06/29/2023, 3536060, Page22 of 93

During the New Mexico trip, Maxwell took steps to

normalize sexual contact under the ruse of massage.
Maxwell instructed Annie to hold Epstein’s foot and
showed her how to give Epstein a foot massage.
(Tr.2083-84). Maxwell then offered to give Annie a
massage. (Tr.2084-85). After telling Annie to get un-
dressed, Maxwell gave Annie a massage on a massage
table while Annie was naked. (Tr.2085). During the
massage, Maxwell directed Annie to roll over so that
Annie was laying on her back. (Id.). After Annie com-
plied and rolled to her back, Maxwell pulled the sheet
down and exposed Annie’s breasts. (Id.). Then, while
Annie was naked, Maxwell rubbed Annie’s breasts.
(Tr.2085-86).
During this same New Mexico trip, Epstein later
got into Annie’s bed, cuddled with her, pressed his
body into her, and rubbed against her. (Tr.2086-87,
2224). But when Annie managed to extricate herself
from the situation by running to the bathroom,
thereby denying Epstein further sexual contact, Max-
well seemed “very disinterested” in Annie for the re-
mainder of the trip. (Tr.2086-88).

4. Sexual Abuse of Virginia Roberts

Beginning in or about the summer of 2000, Max-
well and Epstein entered a new phase of their scheme
to sexually abuse teenage girls. That summer, Max-
well recruited a 17-year-old girl named Virginia Rob-
erts from the parking lot of Mar-a-Lago to provide Ep-
stein with massages. (Tr.840-46). Over the next sev-
eral months, Virginia was paid to provide Epstein with
sexualized massages at his Palm Beach residence, in
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10

exchange for hundreds of dollars in cash for each mas-

sage. (Tr.840-46. 1518-24, 1742-46). Virginia also trav-
eled with Epstein and Maxwell to other locations, in-
cluding New York and the Virgin Islands, on Epstein’s
private plane. (Tr.1854-70). Virginia brought other
teenage girls to Epstein’s Palm Beach house. (Tr.845).
One of those girls was a 14-year-old girl named Car-
olyn who Virginia introduced to Maxwell and Epstein
at the Palm Beach villa in 2001. (Tr.1518-24).

5. Sexual Abuse of Carolyn

Carolyn met Maxwell the very first time she went
to Epstein’s house, and she interacted with Maxwell
multiple times thereafter. (Tr.1520-21). On Carolyn’s
first visit to the house, Maxwell greeted Virginia, who
introduced Carolyn to Maxwell. (Id.). Maxwell then
told Virginia, “You can bring her upstairs and show
her what to do,” after which Virginia showed Carolyn
how to perform a sexual massage on Epstein. (Tr.1521-
23).
Thereafter, Carolyn performed over 100 paid sexu-
alized massages for Epstein when she was between 14
and 18 years old. (Tr.1525). The vast majority involved
the same course of abuse through which Epstein mas-
turbated, touched Carolyn’s breasts and buttocks, and
directed Carolyn to touch his nipples. (Tr.1545-46).
Epstein also attempted to touch Carolyn’s vagina with
a vibrator, brought other females into the room to en-
gage in oral sex with Carolyn, and raped Carolyn by
penetrating her vagina with his penis. (Tr.1545-47).
At first, Maxwell personally scheduled Carolyn’s
appointments with Epstein, including on phone calls
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11

from New York, and sometimes sent a car to pick Car-

olyn up because she was too young to drive. (Tr.1524,
1527-32). Maxwell also engaged Carolyn in conversa-
tions during which Carolyn revealed that she had pre-
viously been sexually abused by a relative, that her
parents were separated, and that her mother strug-
gled with addiction. (Tr.1533-36). Maxwell invited
Carolyn to travel with Maxwell and Epstein, but Car-
olyn responded that because she was only 14 years old,
she would not be able to get permission to travel.
(Tr.1534-35). Carolyn was paid several hundred dol-
lars in one-hundred-dollar bills after each massage,
and Carolyn also received gifts of lingerie from Epstein
and Maxwell shipped from Manhattan to her home in
Florida. (Tr.1540-42). Usually, the money was laid out
on the table or by the sink in the bathroom, but Max-
well personally paid Carolyn after a few massages.
(Tr.1540-41).
Maxwell saw Carolyn fully nude in the massage
room on approximately three occasions when Carolyn
had already undressed in preparation for the massage
but before Epstein entered the room. (Tr.1536-38). On
one such occasion, when Carolyn was 14 years old,
Maxwell told Carolyn that she had a nice body and
touched Carolyn’s breasts. (Id.).
At some point, Epstein asked Carolyn if she had
any young friends she could bring for massages.
(Tr.1544). Carolyn ended up bringing multiple girls to
Epstein for sexualized massages, including multiple
minors. (Tr.1544-46, 1753-54). When Carolyn brought
girls to massage Epstein, both the girl and Carolyn
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12

would be paid hundreds of dollars in cash. (Tr.1544-

45).

6. Sexual Abuse of Melissa

One of the minor girls Carolyn brought to provide
paid sexualized massages to Epstein was a 16-year-old
named Melissa. (Tr.1753, 1758-61). Melissa went to
Epstein’s residence to provide Epstein with massages
on multiple occasions when she was under the age of
18. (Id.). When Melissa and Carolyn went to the Palm
Beach house, they remained in the home for about an
hour and then returned with hundreds of dollars in
cash. (Id.).

B. The Defense Case, Verdict, and Sentencing

Maxwell called nine witnesses in her defense case,
including former employees and associates, as well as
an expert on memory. (Tr.2327-2531, 2595-2684).
On December 29, 2021, the jury found Maxwell
guilty of Counts One, Three, Four, Five, and Six.
(A.86).
On April 1, 2022, Judge Nathan denied Maxwell’s
motion for a new trial pursuant to Federal Rule of
Criminal Procedure 33 based on a juror’s provision of
inaccurate information during jury selection, as dis-
cussed in greater deal in Point III, infra. (A.318-57).
On April 29, 2022, Judge Nathan denied all but one of
Maxwell’s remaining post-trial motions. (A.358-402).
Judge Nathan found that the three conspiracy counts
(Counts One, Three, and Five) were multiplicitous and
that she would, therefore, enter judgment on Count
Three alone among the conspiracy counts. (Id. at 3).
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13

On June 29, 2022, Judge Nathan sentenced Max-

well to 60 months’ imprisonment on Count Three, 120
months’ imprisonment on Count Four, and 240
months’ imprisonment on Count Six, all to run concur-
rently, to be followed by five years’ supervised release,
and imposed a $750,000 fine and a $300 mandatory
special assessment.

ARGUMENT

POINT I

The District Court Correctly Concluded That

Jeffrey Epstein’s Non-Prosecution Agreement
Does Not Bar Maxwell’s Prosecution in the
Southern District of New York
In 2007, the U.S. Attorney’s Office for the Southern
District of Florida entered into a non-prosecution
agreement with Jeffrey Epstein. Maxwell argues that
this agreement, which neither she nor the U.S. Attor-
ney’s Office for the Southern District of New York
signed, nevertheless bars her prosecution in the
Southern District of New York in this case, and she
twice sought dismissal of the charges in the Indict-
ment on that ground. The District Court denied the
motions to dismiss, correctly recognizing that Max-
well’s argument is precluded by the text of the agree-
ment and this Court’s longstanding precedent. Accord-
ingly, this Court should affirm the denial of the mo-
tions to dismiss.
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14

A. Relevant Facts
In 2005, the Palm Beach Police Department in
Florida opened an investigation into Epstein on the
complaint of the parents of a fourteen-year-old girl.
The Palm Beach Police ultimately brought the investi-
gation to the Federal Bureau of Investigation in West
Palm Beach, which in turned opened an investigation
with the U.S. Attorney’s Office for the Southern Dis-
trict of Florida (“USAO-SDFL”). (SA3). That investiga-
tion culminated in a draft sixty-page indictment pro-
posing to charge Epstein for the sexual abuse of multi-
ple victims. (SA3).
In 2007, the USAO-SDFL and Epstein entered into
a non-prosecution agreement (“NPA”). (A.173). The
agreement was signed “on the authority of R. Alexan-
der Acosta, United States Attorney for the Southern
District of Florida.” (A.175). Under the terms of the
NPA, Epstein agreed to plead guilty in a pending Flor-
ida state case and to receive a sentence of at least
eighteen months’ imprisonment and twelve months’
community control. (A.176). He also consented to juris-
diction in the Southern District of Florida for civil suits
involving victims specified by the USAO-SDFL, among
other terms. (A.177). In exchange, USAO-SDFL
agreed to defer “prosecution in this District.” (A.175).
Once Epstein completed his half of the bargain, the
NPA provided that “no prosecution” for the offenses
then under investigation by “the Federal Bureau of In-
vestigation and the U.S. Attorney’s Office . . . will be
instituted in this District.” (A.175).
The NPA also provided that, if Epstein complied
with the agreement, “the United States also agrees
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15

that it will not institute any criminal charges against

any potential co-conspirators of Epstein, including but
not limited to” four named individuals, none of whom
was Maxwell. (A.178). Indeed, Maxwell was neither a
party to the agreement nor involved in negotiating its
terms. This provision “appears to have been added
‘with little discussion or consideration by the prosecu-
tors.’ ” (A.140 (citing SA195, 211)). The NPA continues
that, “upon execution of this agreement, and a plea
agreement with the State Attorney’s Office, the federal
Grand Jury investigation will be suspended.” (A.178).
The agreement was executed on September 24, 2007
(A.182), and Epstein pleaded guilty in state court on
June 30, 2008 (SA137). In 2019, the Department of
Justice Office of Professional Responsibility conducted
an investigation into the negotiations around the NPA
and issued a 290-page report containing detailed fac-
tual findings. (SA1-348).
After the U.S. Attorney’s Office for the Southern
District of New York (“USAO-SDNY”) charged Max-
well in this case in the Southern District of New York,
she twice moved to dismiss the charges on the ground
that they were barred by the NPA. The District Court
denied the motions, concluding that “the NPA does not
bind the [USAO-SDNY].” (A.140-45, 189-92).

B. Applicable Law
This Court has long 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 af-
firmatively appears that the agreement contemplates
a broader restriction.” United States v. Annabi, 771
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16

F.2d 670, 672 (2d Cir. 1985); accord, e.g., United States
v. Prisco, 391 F. App’x 920, 921 (2d Cir. 2010); United
States v. Salameh, 152 F.3d 88, 120 (2d Cir. 1998). The
requisite affirmative appearance may be established
by “an express statement” in the plea agreement, or it
may be “inferred from the negotiations between de-
fendant and prosecutor, as well as from statements at
the plea colloquy.” United States v. Russo, 801 F.2d
624, 626 (2d Cir. 1986).
This Court reviews de novo both the denial of a mo-
tion to dismiss an indictment and the interpretation of
a plea agreement. United States v. Montague, 67 F.4th
520, 527 (2d Cir. 2023); United States v. Padilla, 186
F.3d 136, 139 (2d Cir. 1999). This Court reviews for
abuse of discretion a district court’s denial of an evi-
dentiary hearing before ruling on a motion to dismiss.
United States v. Walters, 910 F.3d 11, 22, 28 (2d Cir.
2018); United States v. Greenberg, 835 F.3d 295, 305
(2d Cir. 2016).

C. Discussion
The District Court correctly rejected Maxwell’s ar-
gument that the NPA bars this prosecution. Maxwell
has no right to invoke the protections of the NPA be-
cause she is neither a party to nor a third-party bene-
ficiary of the agreement. But even if Maxwell had
standing under the NPA, it would not bar this prose-
cution because it was plainly intended to bind only the
USAO-SDFL. Thus, Judge Nathan rightly concluded
that under longstanding Second Circuit precedent, the
NPA does not bind USAO-SDNY. Accordingly, this
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17

Court should affirm the denial of Maxwell’s motions to

dismiss.

1. Maxwell Is Not Entitled to Enforce the NPA

As an initial matter, Maxwell has no right to invoke
the protections of the NPA. Maxwell was not a signa-
tory to the agreement. While the third-party benefi-
ciary doctrine is a tenet of contract law (Br.16), its ap-
plication to plea agreements under federal law is a sep-
arate question because plea agreements differ from
commercial contracts in meaningful respects. United
States v. Feldman, 939 F.3d 182, 189 (2d Cir. 2019)
(“We have long recognized that plea agreements are
significantly different from commercial contracts.”). It
is doubtful that a third-party beneficiary can enforce a
plea agreement. See United States v. Lopez, 944 F.2d
33, 37 (1st Cir. 1991) (observing that “we are unaware
of authority” supporting application of “third party
beneficiary principles . . . to a plea agreement in a
criminal case”); United States v. Mariamma Viju, No.
15 Cr. 240, 2016 WL 107841, at *4 (N.D. Tex. Jan. 11,
2016) (explaining that “[t]he right to enforce a plea
deal does not exist for its own sake; rather, it is a
means to achieve fairness in plea bargaining,” and “en-
forcement by third parties adds nothing to protecting
the defendant’s right”).
In any event, even under the third-party benefi-
ciary law on which Maxwell relies (Br.16), she would
have to show that “the original parties intended the
[agreement] to directly benefit [her] as [a] third
part[y].” United States v. Wilson, 216 F.3d 645, 663
(7th Cir. 2000) (assuming without deciding that third
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18

party could enforce immunity agreement); see also

United States v. Fla. W. Int’l Airways, Inc., 853 F.
Supp. 2d 1209, 1228 (S.D. Fla. 2012) (third party must
show that “a direct and primary object of the contract-
ing parties was to confer a benefit on the third party”
(quoting Bochese v. Town of Ponce Inlet, 405 F.3d 964,
982 (11th Cir. 2005))). Here, Maxwell has failed to
make the requisite showing: she is not named in the
provision naming four potential co-conspirator
(A.178), and she has offered no evidence that the par-
ties to the NPA intended to confer a benefit on her spe-
cifically. Accordingly, Maxwell may not enforce the
NPA.

2. The NPA’s Terms Bind Only the USAO-

SDFL
Even if Maxwell had a right to invoke the NPA’s
protections, it would not bar the charges in this case.
By its terms, the NPA only applies to prosecutions
brought by the USAO-SDFL. The agreement was
signed “on the authority of R. Alexander Acosta,
United States Attorney for the Southern District of
Florida.” (A.175). And in exchange for Epstein’s plea in
state court, the USAO-SDFL agreed to defer “prosecu-
tion in this District”—that is, the Southern District of
Florida. (A.175). The USAO-SDFL further promised
that no prosecution by “the Federal Bureau of Investi-
gation and the U.S. Attorney’s Office . . . will be insti-
tuted in this District.” (A.175). An agreement by the
USAO-SDFL not to prosecute Epstein in the Southern
District of Florida is an agreement intended to apply
only to the USAO-SDFL and only in the Southern Dis-
trict of Florida. Moreover, the agreement was signed
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19

by officials of the USAO-SDFL and by no other compo-

nents of the Department of Justice. Accordingly, the
plain terms of the NPA make clear that the agreement
only binds the USAO-SDFL.
Maxwell’s argument that the NPA binds the
USAO-SDNY relies on a separate provision of the
agreement, which says that “the United States also
agrees that it will not institute any criminal charges
against any potential co-conspirators of Epstein, in-
cluding but not limited to” a list of four individuals
that does not include the defendant (A.178). (Br.15,
33). But her argument that the term “United States”
means the entire federal government requires the
term to be read in isolation. As Judge Nathan ex-
plained, terms like “the United States” or “the govern-
ment” are “common shorthand” for a single U.S. Attor-
ney’s Office, and “a plea agreement need not painstak-
ingly spell out ‘the Office of the United States Attorney
for Such-and-Such District’ in every instance to make
clear that it applies only in the district where signed”
(A.141). See Salameh, 152 F.3d at 120 (“The mere use
of the term ‘government’ in the plea agreement does
not create an affirmative appearance that the agree-
ment contemplated barring districts other than the
particular district entering into the agreement.”);
United States v. Gonzalez, 93 F. App’x 268, 270 (2d Cir.
2004) (“Although paragraph 12(b) uses the term
‘United States’ rather than the term ‘government,’ this
is a distinction from our prior caselaw without a differ-
ence.”).
Reading the NPA as a whole confirms that conclu-
sion. The very next sentence of the agreement states
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20

that “the federal Grand Jury investigation will be sus-

pended.” (A.178 (emphasis added)). The grand jury in-
vestigation is the one that USAO-SDFL agreed to de-
fer in the same agreement (A.175), and not any poten-
tial federal grand jury investigations in other districts.
Furthermore, the NPA elsewhere refers to the “United
States” on occasions that could only mean the USAO-
SDFL. For instance, the NPA commits the “United
States”—that is, the USAO-SDFL—to providing Ep-
stein with a list of victims. (A.177 (“The United States
shall provide Epstein’s attorneys with a list of individ-
uals whom it has identified as victims . . . .”)). Another
provision states that the NPA will not be made part of
the public record and commits “the United States”—
again, the USAO-SDFL—to providing notice to Ep-
stein if it receives a Freedom of Information Act re-
quest requiring disclosure of the agreement. (A.178).
The mere fact that the co-conspirator provision of the
NPA used the phrase “United States” rather than
“U.S. Attorney’s Office” is not evidence that the parties
intended an unusually broad immunity provision. See,
e.g., Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S.
519, 540 (2013) (“We are not aware, however, of any
canon of interpretation that forbids interpreting differ-
ent words used in different parts of the same statute
to mean roughly the same thing.”). As Judge Nathan
concluded, given the repeated limitations of the com-
mitments in the NPA to the USAO-SDFL, including
the commitment not to prosecute Epstein, “[i]t is not
plausible . . . that the parties intended to drastically
expand the agreement’s scope in the single sentence on
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21

the prosecution of co-conspirators without clearly say-

ing so.” (A.142). 3
Maxwell also points to the NPA provision stating
that “Epstein seeks to resolve globally his state and
federal criminal liability.” (A.175). Based on that
statement, Maxwell argues that Epstein’s purpose in
negotiating the NPA was to “obtain a global resolution
that would, among other things, provide maximum
protection for any alleged co-conspirators.” (Br.34).
But the cited provision only says that Epstein sought
to resolve “his” liability, not anyone else’s. Further-
more, under Maxwell’s reading, Epstein bargained for
a truly “global” resolution only for his co-conspirators,
and limited his own “global” resolution expressly to the
USAO-SDFL. There is no reason to believe that Ep-
stein expressly sought and obtained broader immunity
for his co-conspirators than he did for himself. (See
also SA107 n.125 (observing that a supervisor at the
USAO-SDFL “pointed out that the NPA was not a
—————
3 Maxwell also relies on draft plea agreements
which “expressly defined the term ‘United States’ as
limited to” USAO-SDFL. Those plea agreements—
which differed significantly from the NPA—also use
both the terms “United States” and “United States At-
torney’s Office for the Southern District of Florida,” in-
cluding using the USAO-SDFL term expressly in the
context of the co-conspirator provision. (See, e.g.,
Dkt.142, Ex. F at 2). This point only highlights the par-
ties’ understanding at all times that their negotiations
merely bound the USAO-SDFL, and not the entire fed-
eral government.
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22

‘global resolution’ and other co-conspirators could have

been prosecuted ‘by any other [U.S. Attorney’s] office
in the country.’ ”)).
Lacking support in the text of the NPA itself, Max-
well attempts to show that the NPA applies here based
on “the negotiations between defendant and prosecu-
tor.” Russo, 801 F.2d at 626. In particular, Maxwell
claims that the negotiating history of the NPA shows
that “[s]enior levels of Main Justice were directly in-
volved in the negotiation and approval of the NPA,
even to the extent that separate presentations were
made to, and approval of the NPA was obtained from,
the Office of the Deputy Attorney General.” (Br.36).
This assertion, however, mischaracterizes the record
and further underscores the absence of any senior ap-
provals in negotiating the NPA. The pages to which
Maxwell cites describe activities after the NPA was
signed, in which Justice Department officials in Wash-
ington refused to relieve Epstein of his obligations un-
der the NPA. (Br.36 (citing SA120-23, 129-44); A.143
(“The OPR report reflects that the Office of the Deputy
Attorney General reviewed the NPA, but only after it
was signed when Epstein tried to get out of it.”)). Even
then, however, those officials did not “approve” the
NPA. (SA121 (statement by the Assistant Attorney
General that she “did not review or approve the agree-
ment either before or after it was signed”), 129 (“The
Department, however, only reviewed the issue of fed-
eral jurisdiction and never reviewed the NPA or any
specific provisions.”)). Maxwell also cobbles together
instances in which the USAO-SDFL and the FBI in
Florida enlisted the assistance of other components of
the federal government or considered acting outside
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23

Florida, such as the USAO-SDFL’s “contact with wit-

nesses in New York.” (Br.38). These disparate and un-
connected events do not show that the USAO-SDFL
acted on behalf of the entire federal government when
entering into the NPA, or that Epstein understood the
USAO-SDFL to be doing so.
Maxwell also advances several arguments attempt-
ing to minimize or side-step this Court’s precedent. For
example, Maxwell argues that Annabi applies only if
the charges in the indictment are “sufficiently distinct”
from the counts resolved by the earlier agreement.
(Br.30-33 (quoting 771 F.2d at 672)). Not so. The rele-
vant portion of Annabi concerned an argument by the
defendants that in seeking to have a plea agreement
in the Eastern District of New York bar the pending
charges in the Southern District of New York, they
were “seeking only the same protection accorded by
th[e Double Jeopardy] Clause.” 771 F.2d at 672. This
Court rejected that argument, reasoning that even if
the Double Jeopardy Clause applied (notwithstanding
that the defendants were “never in jeopardy” on those
charges in the Eastern District), the defendants would
not be entitled to relief because the pending charges
“extended for an additional two years” and thus were
“not the same as the charges that were dismissed.” Id.
Thus, Annabi did not hold that its rule—that “[a] plea
agreement binds only the office of the United States
Attorney for the district in which the plea is entered
unless it affirmatively appears that the agreement
contemplates a broader restriction,” id.—applies only
if the charges are sufficiently distinct. And as Judge
Nathan recognized, “no subsequent Second Circuit
case applying Annabi has so held.” (A.191).
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24

Next, Maxwell argues that this Court should disre-

gard its own precedents and instead apply Eleventh
Circuit law because “the NPA was negotiated in Flor-
ida, with Southern District of Florida prosecutors, in
exchange for Epstein’s agreement to plead guilty in
Florida state court.” (Br.25). But this Court has con-
sistently applied Annabi even when considering plea
agreements from out-of-Circuit districts. Prisco, 391 F.
App’x at 921 (District of New Jersey); United States v.
Ashraf, 320 F. App’x 26, 28 (2d Cir. 2009) (Eastern Dis-
trict of Virginia); Gonzalez, 93 F. App’x at 270 (District
of New Mexico). United States v. Brown, No. 99-
1230(L), 2002 WL 34244994, at *2 (2d Cir. 2004)
(Southern District of Florida). 4 These decisions are
consistent with choice-of-law principles in criminal
cases, where “[t]he governing law is always that of the
forum state, if the forum court has jurisdiction.” Amer-
ican Conflicts Law 375 (5th ed. 2021); see 2 Attorney-
Client Privilege in the United States § 12:10 (“Choice
of law scholars have long recognized that criminal law
is peculiarly local in nature, and it is settled that, in
criminal prosecutions, the court will routinely apply
the substantive law of the forum.”); American Conflicts
Law 390 (“[A]s a sort of corollary to the local nature of

—————
4 While these are nonprecedential decisions, this
Court does not lightly depart from prior panels’ sum-
mary orders. United States v. Payne, 591 F.3d 46, 48
(2d Cir. 2010) (“[D]enying summary orders preceden-
tial effect does not mean that the court considers itself
free to rule differently in similar cases.”).
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25

substantive criminal law,” “[p]rocedures in criminal

cases are always those of the forum.”). 5
In any event, Eleventh Circuit law would not sup-
port Maxwell’s claim. Maxwell does not cite any Elev-
enth Circuit decisions addressing when one U.S. At-
torney’s Office is bound by a plea agreement with an-
other U.S. Attorney’s Office. But in an analogous con-
text, the Eleventh Circuit held that a U.S. Attorney’s
promise made in a plea agreement—that a criminal
defendant would not be deported—was unenforceable
because the U.S. Attorney lacked authority to make
that promise. San Pedro v. United States, 79 F.3d
1065, 1072 (11th Cir. 1996). If the Eleventh Circuit
were to apply the reasoning of San Pedro to the issue
in this case, it would likely reach the same result be-
cause a U.S. Attorney only has authority to act “within
his district,” 28 U.S.C. § 547, and must seek the
—————
5 Maxwell cites a handful of district court cases
that apply the exclusionary rule of a foreign circuit to
prevent, in her words, “the Government from para-
chuting into a new circuit and prosecuting a case it
would not otherwise have been able to bring.” (Br.29).
This “inter-circuit exclusionary rule,” as Maxwell calls
it, is hardly a settled doctrine. See American Conflicts
Law 391-94 (discussing cases in both directions). In
any event, the purpose of this putative rule is tied to
its context: “to ensure that the proper level of deter-
rence is maintained in the locale where the violation
occurred.” (Br.29 (quoting United States v. Restrepo,
890 F. Supp. 180, 191 (E.D.N.Y. 1995)). That rationale
is inapplicable here.
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26

approval of each affected U.S. Attorney’s Office before

entering into any non-prosecution agreement that pur-
ports to bind another district. See Justice Manual § 9-
27.641 (“No district or division shall make any agree-
ment, including any agreement not to prosecute, which
purports to bind any other district(s) or division with-
out the approval of the United States Attorney(s) in
each affected district and/or the appropriate Assistant
Attorney General.”).
Finally, Maxwell devotes much of her brief to criti-
cizing Annabi. (E.g., Br.18-23). But this Court’s rule is
sound, as it ensures that a criminal defendant (or
even, as here, a co-conspirator) will not receive the
windfall of immunity that was never intended by the
parties to the original agreement, while leaving par-
ties free to enter into legitimate multi-district resolu-
tions if they wish. Nor has Maxwell’s parade of horri-
bles come to pass in the decades since Annabi was de-
cided. Furthermore, the same rule has long been ap-
plied in the Seventh Circuit. See Thompson v. United
States, 431 F. App’x 491, 493 (7th Cir. 2011); United
States v. Rourke, 74 F.3d 802, 807 n.5 (7th Cir. 1996).
In any event, this Court need not engage in a point-by-
point analysis of the merits of Annabi, because it re-
mains binding precedent. See United States v. Wilker-
son, 361 F.3d 717, 732 (2d Cir. 2004) (Court is “bound
by the decisions of prior panels until such time as they
are overruled either by an en banc panel of our Court
or by the Supreme Court”).
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27

Thus, Epstein’s NPA with the USAO-SDFL does

not bar this prosecution of Maxwell, and Judge Na-
than correctly denied the motions to dismiss. 6

3. The District Court Did Not Abuse Its

Discretion in Declining to Conduct a
Hearing
Finally, Maxwell argues that the District Court
erred by denying her motions to dismiss without an
evidentiary hearing. (Br.38-40). But as Judge Nathan
explained, the cases cited by Maxwell in support of her
request for a hearing “mostly involved oral agreements
where there was no written record of the full set of
terms reached by the parties,” and all of which “in-
volved defendants with first-hand knowledge of the ne-
gotiations. . . . This is no such case. The NPA’s terms
are clear.” (A.145). Furthermore, Maxwell had “an un-
usually large amount of information about the NPA’s
negotiation history in the form of the OPR report yet
—————
6 Even if the NPA were deemed to apply here, it
would only cover Count Six, which concerns a victim
known to USAO-SDFL and a statute mentioned in the
NPA, and not Counts Three and Four, which concern
different or additional victims and offenses over an ex-
panded time period. Maxwell’s suggestion that the co-
conspirator provision “is not limited to any particular
offense or any time period” (Br.40) is based on the
premise that the USAO-SDFL immunized Maxwell for
any and all crimes, past or future, and highlights the
unreasonableness of reading the NPA to apply to other
U.S. Attorney’s Offices.
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28

identifies no evidence that the Department of Justice

made any promises not contained in the NPA.” (A.142-
43). Here, as below, Maxwell’s further request for a
hearing “rests on mere conjecture.” (A.145). Judge Na-
than did not abuse her discretion.

POINT II

The District Court Correctly Concluded that the

Charges Were Timely
In 2003, Congress extended the statute of limita-
tions for “offense[s] involving the sexual or physical
abuse” of a minor to allow prosecution so long as the
victim remains alive. 18 U.S.C. § 3283. Attempting to
undermine the clear legislative intent, Maxwell argues
that the amendment did not apply to her case because
her crimes both pre-dated the amendment and did not
involve sexual abuse. These arguments fly in the face
of the statutory text, legislative history, this Court’s
own decisions, and the persuasive authority of other
Circuits. The charges fell squarely within the amended
statute of limitations, and this Court should affirm
Judge Nathan’s well-reasoned decisions denying Max-
well’s motions to dismiss the charges as untimely.

A. Applicable Law

1. Standard of Review
This Court reviews de novo both the denial of a mo-
tion to dismiss an indictment and the application of a
statute of limitations. United States v. Sampson, 898
F.3d 270, 276, 278 (2d Cir. 2018).
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29

2. Statutes of Limitations for Offenses

Against Children (18 U.S.C. § 3283) and
Child Abduction and Sex Offenses (18
U.S.C. § 3299)
Most federal noncapital offenses carry a five-year
statute of limitations. See 18 U.S.C. § 3282(a). In 1990,
Congress enacted a provision titled, “Extension of
Child Statute of Limitations,” which provided that
“[n]o statute of limitation that would otherwise pre-
clude prosecution for an offense involving the sexual
or physical abuse of a child under the age of 18 years
shall preclude such a prosecution before the child
reaches the age of 25 years.” Crime Control Act of
1990, Pub. L. No. 101-647, tit. II, § 225(a), 104 Stat.
4789, 4798 (codified at 18 U.S.C. § 3509(k) (1990)).
This provision “extended the federal criminal limita-
tions period for child sex abuse offenses, making it eas-
ier to prosecute offenders who commit sex crimes that
may be difficult to detect quickly.” Weingarten v.
United States, 865 F.3d 48, 54 (2d Cir. 2017). In 1994,
Congress re-codified this provision, moving it to 18
U.S.C. § 3283 with identical language. Violent Crime
Control and Law Enforcement Act of 1994, Pub. L. No.
103-322, tit. XXXIII, § 330018(a), 108 Stat. 1796, 2149
(codified at 18 U.S.C. § 3283 (1994)).
Within a decade, “Congress began to view even the
extended statute of limitations period in the 1994 ver-
sion of § 3283 as ‘inadequate in many cases’ because it
released from criminal liability sex abusers whose
crimes were not brought to the attention of federal au-
thorities until after their victims turned twenty-five.”
Weingarten, 865 F.3d at 54 (citing H.R. Conf. Rep. No.
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30

108–66, at 54 (2003)). Accordingly, in 2003, Congress

enacted a provision titled, “No Statute of Limitations
for Child Abduction and Sex Crimes,” which amended
Section 3283 to read: “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.” Prosecutorial
Remedies and Tools Against the Exploitation of Chil-
dren Today Act of 2003 (“PROTECT Act”), Pub. L. No.
108-21, tit. II, § 202, 117 Stat. 650, 660 (codified at 18
U.S.C. § 3283 (2003)).
In 2006, Congress enacted a provision titled,
“Longer Statute of Limitation for Human Trafficking-
Related Offenses,” and sub-titled “Modification of Stat-
ute Applicable to Offense Against Children,” which
further amended Section 3283 to its current form to
permit the prosecution of such offenses during the life-
time of the victim or ten years after the offense, which-
ever is longer. Violence Against Women and Depart-
ment of Justice Reauthorization Act of 2006, Pub. L.
No. 109-162, tit. XI, § 1182(c), 119 Stat. 2960, 3126
(codified at 18 U.S.C. § 3283 (2006)).
Later in 2006, Congress enacted 18 U.S.C. § 3299
in a provision titled, “No Limitation for Prosecution of
Felony Sex Offenses,” which provides that “[n]otwith-
standing any other law, an indictment may be found
or an information instituted at any time without limi-
tation for any offense under section 1201 involving a
minor victim, and for any felony under chapter 109A,
110 (except for section 2257 and 2257A), or 117, or sec-
tion 1591.” Adam Walsh Child Protection and Safety
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31

Act of 2006, Pub. L. No. 109-248, tit. II, § 211(1), 120

Stat. 587, 616 (codified at 18 U.S.C. § 3299 (2006)).

3. Retroactivity under Landgraf

In Landgraf v. USI Film Products, 511 U.S. 244
(1994), the Supreme Court set forth a two-part frame-
work for determining whether a statute may be ap-
plied retroactively. At the first step, “if Congress ex-
pressly prescribed that a statute applies retroactively
to antecedent conduct, the inquiry ends and the court
enforces the statute as it is written, save for constitu-
tional concerns.” Weingarten, 865 F.3d at 54-55. If,
however, the “statute is ambiguous or contains no ex-
press command regarding retroactivity,” then the
court must turn to the second step, where “a reviewing
court must determine whether applying the statute to
antecedent conduct would create presumptively im-
permissible retroactive effects.” Id. at 55. “If it would,
then the court shall not apply the statute retroactively
absent clear congressional intent to the contrary.” Id.
“If it would not, then the court shall apply the statute
to antecedent conduct.” Id.

B. Discussion

1. There Was No Impermissible Retroactivity

in Applying Section 3283 to Maxwell
Maxwell claims that the District Court erred by ap-
plying Section 3283’s 2003 amendment to her three
counts of conviction, i.e., Counts Three, Four, and Six,
because they involved conduct that pre-dated the
amendment. As an initial matter, this argument ig-
nores the fact that Counts Three and Six both charge
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32

continuing offenses that continued into 2004, thus

post-dating Section 3283’s amendment. Moreover, un-
der the Landgraf framework, the 2003 amendment
properly applies to pre-enactment criminal conduct
that still could have been timely prosecuted at the time
of the enactment, as was the case here.

a. There Was No Retroactivity as to

Counts Three and Six
As an initial matter, Counts Three and Six both
charged conduct that continued through 2004, i.e., af-
ter the 2003 amendment to Section 3283, and thus pre-
sent no retroactivity concerns.
For conspiracy charges requiring proof of an overt
act, including 18 U.S.C. § 371, the conspiracy statute
at issue here, “[t]he statute of limitations runs from
the date of the last overt act in furtherance of the con-
spiracy.” United States v. Monaco, 194 F.3d 381, 387
n.2 (2d Cir. 1999); accord United States v. Ben Zvi, 242
F.3d 89, 97 (2d Cir. 2001). Similarly, for a continuing
substantive offense, the statute of limitations only
“begin[s] to run when the crime is complete,” meaning
when “the conduct has run its course.” United States
v. Eppolito, 543 F.3d 25, 46 (2d Cir. 2008).
Here, the Indictment alleged that the conspiracy
charged in Count Three and the sex trafficking offense
charged in Count Six continued through 2004. (A.127,
132; see also A.123-24, 131-32 (describing conduct
through 2004 involving Victim-4)). 7 Thus, the statute
—————
7 To the extent Maxwell’s argument challenges
the sufficiency of the evidence rather than the denial
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33

of limitations for these two counts did not begin to run

until 2004, well after Congress enacted the 2003
amendment to Section 3283. Maxwell’s arguments
about retroactivity are therefore inapplicable to
Counts Three and Six.

b. Applying Section 3283 to Maxwell

Complies with Landgraf
Furthermore, under the Landgraf framework, the
2003 amendment to Section 3283 properly applies to
pre-enactment conduct for which the statute of limita-
tions had not expired at the time the amendment was
passed. Because the statute of limitations had not ex-
pired when Congress amended Section 3283 in 2003,
that amendment extended the limitations period for
prosecuting Maxwell, rendering the charges timely.

i. Landgraf Step One

At step one of the Landgraf analysis, the question
is whether Congress has “expressly prescribed the
statute’s proper reach.” Landgraf, 511 U.S. at 280.
When evaluating Congress’s intent at step one, this

—————
of the motions to dismiss, see United States v.
Rutigliano, 790 F.3d 389, 400 (2d Cir. 2015), the evi-
dence at trial established that Carolyn continued to
visit Epstein’s residence through 2004. (Tr.1525, 1548-
49; GX-1B; GX-3D through K; see also SA406-07 (Dis-
trict Court summarizing such evidence at sentenc-
ing)).
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34

Court has considered both statutory text and legisla-

tive history. In re Enter. Mort. Acceptance Co. Sec.
Litig. (“Enterprise”), 391 F.3d 401, 406-08 (2d Cir.
2004). Here, the text and history of Section 3283 estab-
lish that Congress intended to extend the time to bring
charges of child sexual abuse in cases where the limi-
tations period had not yet expired.
Prior to 2003, any child sex abuse offense could be
prosecuted until the victim reached the age of 25 years,
at which point the statute of limitations then in effect
would bar prosecution. In the 2003 amendment, which
was titled, “No Statute of Limitations for Child Abduc-
tion and Sex Crimes,” Pub. L. No. 108-21, § 202, 117
Stat. 660, Congress explicitly provided that “[n]o stat-
ute of limitations that would otherwise preclude pros-
ecution for [such an offense] shall preclude such pros-
ecution during the life of the child.” 18 U.S.C. § 3283
(2003). The amendment draws no distinction between
pre-enactment and post-enactment conduct. Instead,
as Judge Nathan explained, by stating that “no statute
of limitations that would otherwise preclude prosecu-
tion of these offenses will apply,” the amendment’s
“plain language unambiguously requires that it apply
to prosecutions for offenses committed before the date
of enactment.” (A.151). Thus, the breadth of the text
shows that Congress intended “to extend the . . . stat-
ute of limitations,” even for pre-enactment conduct.
United States v. Jeffries, 405 F.3d 682, 684 (8th Cir.
2005) (reaching same conclusion as to § 3283’s prede-
cessor based on similar “title and . . . wording” of stat-
ute); cf. Enterprise, 391 F.3d at 407 (describing provi-
sion that “no limitation shall terminate the period
within which suit may be filed” as example of statute
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35

reflecting clear congressional intent to apply to pre-en-

actment conduct). 8
Legislative history confirms this conclusion. In ini-
tially enacting a special statute of limitations for child
sex abuse offenses, Congress sought to “mak[e] it eas-
ier to prosecute offenders who commit sex crimes that
may be difficult to detect quickly.” Weingarten, 865
F.3d at 54. But that limitations period proved to be “in-
adequate in many cases.” H.R. Conf. Rep. No. 108-66,
at 54. Tellingly, the conference report offered the ex-
ample of a child rapist who “could not be prosecuted”
because he was “identified . . . as the perpetrator one
day after the victim turned 25.” Id. Given that Con-
gress bemoaned those offenders who escaped prosecu-
tion because the limitations period had expired, there
is every reason to believe that it intended to preserve
the ability to prosecute pre-enactment offenders whose
limitations period had not yet expired. See United
States v. Sure Chief, 438 F.3d 920, 924 (9th Cir. 2006)
(concluding that in enacting the 2003 amendment,
—————
8 Maxwell’s only response regarding the statute’s
text is that the words “would” and “shall” are “forward-
looking.” (Br.54). But those words readily apply in de-
scribing the application of the 2003 amendment to pre-
enactment conduct. Consider an offense committed
against a 16-year-old in the year 2000. The statute of
limitations then in effect indeed “would . . . preclude
prosecution” nine years in the future, once the victim
turned twenty-five. The 2003 amendment ensured
that “[n]o” such “statute of limitations . . . shall pre-
clude such prosecution during the life of the child.”
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36

“Congress evinced a clear intent to extend” the limita-

tions period).
Maxwell notes that Congress “considered—and re-
jected—a retroactivity clause” before enacting the
2003 amendment. (Br.55). But as Judge Nathan recog-
nized, “the legislative history makes clear that Con-
gress abandoned the retroactivity provision . . . be-
cause it would have produced unconstitutional re-
sults.” (A.152 (discussing co-sponsor remarks express-
ing concern 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’ ”)). 9 Thus,
the rejection of the retroactivity clause “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.” (Id.).

—————
9 Maxwell contests this explanation of the retro-
activity clause’s rejection because Stogner v. Califor-
nia, 539 U.S. 607 (2003), had not yet been decided.
(Br.56-57). But the co-sponsor could hardly have been
clearer in expressing his constitutional doubts. And
the co-sponsor did not need Stogner as a basis for his
concern, as courts and Congress have long recognized
the distinction between permissible extensions of un-
expired statutes of limitations and impermissible ex-
tensions of expired statutes of limitations. Stogner,
539 U.S. at 616-18.
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37

The reach of the 2003 amendment to Section 3283

is clear. Because Congress has expressly extended the
statute of limitations to pre-enactment conduct, Judge
Nathan correctly resolved this analysis at Landgraf
step one. In the alternative, however, the statute is—
at worst—ambiguous. If the Court takes that view, it
should proceed to Landgraf step two, which examines
the retroactive effects of the statute.

ii. Landgraf Step Two

As the Supreme Court explained in Landgraf,
“[e]ven absent specific legislative authorization,” ap-
plying a statute to pre-enactment conduct “is unques-
tionably proper in many situations.” 511 U.S. at 273.
“A statute does not operate ‘retrospectively’ merely be-
cause it is applied in a case arising from conduct ante-
dating the statute’s enactment, or upsets expectations
based in prior law.” Id. at 269. Instead, the question is
whether the statute “would impair rights a party pos-
sessed when he acted, increase a party’s liability for
past conduct, or impose new duties with respect to
transactions already completed.” Id. at 280. Im-
portantly, “the fact that a new procedural rule was in-
stituted after the conduct giving rise to the suit does
not make application of the rule at trial retroactive,”
because parties have “diminished reliance interests in
matters of procedure” and “[b]ecause rules of proce-
dure regulate secondary rather than primary con-
duct.” Id. at 275.
In Vernon v. Cassadaga Valley Cent. School Dist.,
49 F.3d 886 (2d Cir. 1995), this Court considered a new
statute of limitations that shortened the time to file
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38

certain discrimination claims, and held that applying

the new statute in a case “filed after its enactment, but
arising out of events that predate its enactment,” is not
impermissibly retroactive under Landgraf. Id. at 889-
90. As the Court explained, “[t]he conduct to which the
statute of limitations applies is not the primary con-
duct of the defendants, the alleged discrimination, but
is instead the secondary conduct of the plaintiffs, the
filing of their suit.” Id. at 890. The 2003 amendment to
Section 3283 likewise applies only to the secondary
conduct of filing a criminal case; it does not apply to
the primary conduct of Maxwell’s child sexual abuse
by, for example, modifying the elements of an offense
to criminalize conduct that previously had not consti-
tuted a crime. See id. at 891 (“Landgraf and other
cases countenance treating statutes of limitations dif-
ferently from statutory provisions that affect substan-
tive rights.”). Thus, like the new statute in Vernon, the
2003 amendment “impaired no rights possessed by ei-
ther party, increased neither party’s liability, nor im-
posed any new duties with respect to past transac-
tions.” Id. at 890.
Enterprise does not alter this conclusion. There,
this Court considered whether an amended statute of
limitations operated to “revive already expired securi-
ties fraud claims.” Enterprise, 391 F.3d at 405. While
acknowledging that under Vernon, “retroactive appli-
cation of a revised statute of limitations generally does
not have an impermissible retroactive effect,” the
Court concluded that “the resurrection of previously
time-barred claims has an impermissible retroactive
effect.” Id. at 409-10 (emphasis removed). Enterprise
has no application here, as the limitations period for
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39

the charges against Maxwell did not expire before the

statute of limitations was extended. Thus, unlike En-
terprise, where resurrection of expired claims would
have “stripp[ed] [defendants] of a complete affirmative
defense they previously possessed,” id. at 410, here
Maxwell never possessed that complete defense. Judge
Nathan correctly concluded that the 2003 amendment
accordingly “did not deprive [Maxwell] of any vested
rights.” (A.153).
To be sure, this Court has observed that there may
be “colorable arguments” that “the logic of Enterprise
extends to criminal cases where the defendant’s stat-
ute of limitations defense had not vested when the lim-
itations period was extended” because the extension
“ ‘increases the period of time during which a defend-
ant can be sued,’ thereby ‘increasing a defendant’s lia-
bility for past conduct.’ ” Weingarten, 865 F.3d at 57
(quoting Enterprise, 391 F.3d at 410); see also United
States v. Miller, 911 F.3d 638, 644-46 (1st Cir. 2018)
(discussing potential defense arguments). But such a
claim runs headlong into “the vast weight of retroac-
tivity decisions,” which recognize that “revoking a
vested statute of limitations defense is different from
retroactively extending the filing period for a still-via-
ble claim.” Weingarten, 865 F.3d at 57 (collecting
cases).
For example, “in the criminal context, there is a
consensus that extending a limitations period before
prosecution is time-barred does not run afoul of the Ex
Post Facto Clause of the Constitution.” Cruz v. Maypa,
773 F.3d 138, 145 (4th Cir. 2014); see also Stogner, 539
U.S. at 632 (holding that the Ex Post Facto Clause
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40

“does not prevent the State from extending time limits

for . . . prosecutions not yet time barred”). As this Court
explained long ago, while it is “unfair and dishonest”
for the government to “assure a man that he has be-
come safe from its pursuit” but then “withdraw its as-
surance,” it is permissible to extend a statute of limi-
tations “while the chase is on.” Falter v. United States,
23 F.2d 420, 426 (2d Cir. 1928) (L. Hand, J.). These ex
post facto cases are particularly instructive here be-
cause “Landgraf and the Ex Post Facto Clause are in-
formed by the same retroactivity concerns.” Cruz, 773
F.3d at 145; see also Landgraf, 511 U.S. at 266 (citing
the Ex Post Facto Clause as an “expression” of “the an-
tiretroactivity principle” it was applying).
Thus, applying the Section 3283’s 2003 amendment
to Maxwell’s unexpired charges is permissible under
Landgraf. As the Tenth Circuit recently explained
with respect to the very same statute of limitations at
issue here:
By extending the unexpired statute of
limitations, Congress did not increase
[defendant’s] exposure to prosecution ret-
roactively. It did not raise the penalty for
the charged offense. It did not redefine
the offense to make it easier to establish.
It did not expose [defendant] to criminal
prosecution anew. It merely altered the
ongoing charging period for the conduct
that had already exposed him to criminal
prosecution. [Defendant] was subject to
indictment in 2002, before the statutes of
limitations were extended, and he
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41

remained subject to indictment in 2007,

once the changes were made. A dead
charge was not resurrected, and the un-
derlying nature of [defendant’s] potential
criminal liability remained the same.
United States v. Piette, 45 F.4th 1142, 1161-62 (10th
Cir. 2022). The decisions of other Courts of Appeals are
in accord. Sure Chief, 438 F.3d at 922-25; Jeffries, 405
F.3d at 685.
Maxwell cites United States v. Richardson, 512
F.2d 105 (3d Cir. 1975), and two district court deci-
sions that are bound to follow it. (Br.58-59). But Rich-
ardson, which was decided before Landgraf, is “incon-
sistent with Landgraf.” United States v. Nader, 425 F.
Supp. 3d 619, 630 (E.D. Va. 2019). Specifically, Rich-
ardson focused on whether Congress expressed a
“clear intention” to overcome the presumption against
retroactivity, 512 F.2d at 106, without engaging in
Landgraf ’s second step, i.e., considering whether the
statute “would have retroactive effect,” Landgraf, 511
U.S. at 280. Moreover, unlike the 2003 amendment,
the statute at issue in Richardson did not expressly
provide that “[n]o statute of limitations that would
otherwise preclude prosecution” of the relevant offense
“shall preclude” prosecution under the terms of the
amended statute.
In sum, the statute of limitations for the charges in
the Indictment had not yet expired when the 2003
amendment to Section 3283 extended the limitations
period, and Judge Nathan correctly determined that
applying the 2003 amendment in this case does not
create impermissible retroactive effects. Therefore,
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42

step two of Landgraf is satisfied, and Section 3283 ap-

plies retroactively. See Weingarten, 865 F.3d at 55 (“If
[a statute] would not [create impermissible retroactive
effects], then the court shall apply the statute to ante-
cedent conduct.”). Accordingly, the charges were
timely. 10

2. Section 3283 Reaches Counts Three and

Four
Maxwell separately argues that Section 3283 does
not apply to Counts Three and Four because neither is
an “offense involving the sexual or physical abuse . . .
of a child.” Maxwell contends that these counts, which
charged her with transporting a minor with intent
that the minor engage in illegal sexual activity and
conspiracy to do the same, are not offenses involving
the sexual abuse of a child because a completed sex act
is not an essential element of either charge. But Max-
well does not dispute that the evidence at trial estab-
lished that her commission of Counts Three and Four
involved completed sex acts abusing one or more minor
victims. Nor could she, as Jane testified that she was
—————
10 As the Government argued below, and as Judge
Nathan found, Count Six is also timely under 18
U.S.C. § 3299, which eliminated the statute of limita-
tions for violations of 18 U.S.C. § 1591 in 2006, and
which also applies retroactively under Landgraf for
the same reasons discussed above with respect to Sec-
tion 3283. (A.196 (concluding that, “like § 3283, § 3299
applies retroactively to offenses for which the previous
limitations period has not yet run”)).
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43

in fact sexually abused when transported across state

lines, including to New York, as a minor. Instead, Max-
well insists that Counts Three and Four do not involve
sexual abuse of a child because a completed sex act is
not an element of those crimes. This argument mis-
reads the relevant statutes and legislative history, and
runs contrary to the decisions of this Court and other
Courts of Appeals. 11

a. Counts Three and Four Are Offenses

Involving the Sexual Abuse of a
Child
Maxwell’s entire argument is based on a mistaken
premise: that the phrase “offense involving the sexual
. . . abuse . . . of a child,” 18 U.S.C. § 3283, only encom-
passes crimes in which “unlawful sexual activity actu-
ally took place.” (Br.44). This flawed proposition ig-
nores relevant statutory definitions, which make clear
that Section 3283 reaches more broadly to include of-
fenses in which there was no completed illegal sex act.
As described above, Section 3283 was originally
codified at 18 U.S.C. § 3509(k). The definition of the
term “sexual abuse” is located within that same sec-
tion:
For purposes of this section . . . the term
‘sexual abuse’ includes the employment,
use, persuasion, inducement, enticement,

—————
11 Maxwell raises no analogous argument with re-
spect to Count Six, which charges sex trafficking of a
minor, in violation of 18 U.S.C. § 1591.
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44

or coercion of a child to engage in, or as-

sist another person to engage in, sexually
explicit conduct or the rape, molestation,
prostitution, or other form of sexual ex-
ploitation of children, or incest with chil-
dren.
18 U.S.C. § 3509(a)(8). The term “sexually explicit con-
duct” is in turn defined to mean, among other things,
“sexual intercourse, including sexual contact”; and the
term “sexual contact” means “the intentional touching,
either directly or through clothing, of the genitalia,
anus, groin, breast, inner thigh, or buttocks of any per-
son with an intent to abuse, humiliate, harass, de-
grade, or arouse or gratify sexual desire of any person.”
Id. § 3509(a)(9)(A). Courts have looked to the defini-
tion of “sexual abuse” set forth in Section 3509(a) to
determine whether the statute of limitations of Section
3283 applies to an offense. United States v. Carpenter,
680 F.3d 1101, 1103-04 (9th Cir. 2012) (“We join our
sister circuits in looking to subsection 3509(a) for a def-
inition of ‘sexual abuse’ under federal law, and find it
the appropriate definition to use in applying section
3283’s extended statute of limitations.”).
The definition of “sexual abuse” includes not only
actual “sexual contact,” but also the “the employment,
use, persuasion, inducement, enticement, or coercion
of a child to engage in, or assist another person to en-
gage in,” sexual contact. 18 U.S.C. § 3509(a). The
breadth of this definition is underscored by Congress’s
use of the word “includes” in Section 3509(a)’s text,
which is “significant because it makes clear that the
examples enumerated in the text are intended to be
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45

illustrative, not exhaustive.” Christopher v.

SmithKline Beecham Corp., 567 U.S. 142, 162 (2012)
(citing Burgess v. United States, 552 U.S. 124, 131 n.3
(2008)). And the text of Section 3283 goes even further
beyond the definition provided in Section 3509 by cov-
ering any crime “involving” the sexual abuse of a child.
Congress therefore did not require that a particular
statute have actual sexual contact with a minor as an
element of its offense, but rather swept broadly to
cover any crime that in any way involves sexual abuse
as broadly defined. Given this expansive language,
sexual abuse “as defined here encompasses a wider set
of behavior than just rape or other unwanted sexual
touching.” United States v. Schneider, 801 F.3d 186,
197 (3d Cir. 2015). Thus, courts throughout the coun-
try have concluded that Section 3283 applies to a vari-
ety of offenses that do not require “a sexual act be-
tween a defendant and a specific child,” United States
v. Vickers, No. 13 Cr. 128 (RJA), 2014 WL 1838255, at
*11 (W.D.N.Y. May 8, 2014), or “physical contact with
the victim,” Carpenter, 680 F.3d at 1103; accord
United States v. Diehl, 775 F.3d 714, 720 (5th Cir.
2015).
Section 3283’s definition thus captures crimes of in-
tent where a perpetrator seeks to have a minor engage
in sexual contact even if such sexual contact does not
occur. Transportation of a minor with intent to engage
in an illegal sex act (as charged in Count Four) and
conspiracy to commit the same (as charged in Count
Three) fall comfortably within that definition. Even
though a completed sex act is not required to commit
those two crimes, Count Four has “sexual abuse” as an
element because it requires the defendant to
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46

“induce[ ]” a child to engage in illegal sexual activity

by transporting the minor across state lines with in-
tent that the child engage in an illegal sex act, 18
U.S.C. § 3509(a)(8), and Count Three, as a conspiracy
to commit Count Four, is an “offense involving [such]
sexual . . . abuse,” id. § 3283. See United States v.
Sensi, No. 08 Cr. 253 (WWE), 2010 WL 2351484, at *2-
3 (D. Conn. June 7, 2010) (collecting cases interpreting
the term “sexual abuse” to encompass “all crimes that
would logically relate to the common understanding of
sexual abuse even when found in chapters 110 (‘Sexual
Exploitation and Other Abuse of Children’) and 117
(‘Transportation of Illegal Sexual Activity and Related
Crimes’) of title 18”); Schneider, 801 F.3d at 196-97
(holding that Section 3283 applied to defendant con-
victed of traveling with the purpose of engaging in sex
with a minor victim, in violation of 18 U.S.C.
§ 2423(b)).
Accordingly, even considering only the elements of
the offenses, Counts Three and Four fall squarely
within Section 3283’s definition of an offense involving
sexual abuse of a child.

b. Maxwell’s Argument for Use of a

Categorical Approach Lacks Merit
Because Counts Three and Four qualify as “of-
fense[s] involving the sexual . . . abuse . . . of a child,”
18 U.S.C. § 3283, even without resort to the facts of the
case, the Court need not address Maxwell’s claim that
the categorical approach applies in this context. But
the arguments Maxwell advances in support of her
claim are meritless in any event.
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47

Maxwell first relies on Section 3283’s use of the

phrase “offense involving” the sexual abuse of a child,
which, she contends, “dictates” looking only to the ele-
ments of the offense. (Br.43). But as this Court has al-
ready recognized, Section 3283’s text “reaches beyond
the offense and its legal elements to the conduct ‘in-
volv[ed]’ in the offense”—a “linguistic expansion” that
shows Congress’s intent for “courts to look beyond the
bare legal charges in deciding whether § 3283 ap-
plied.” Weingarten, 865 F.3d at 59-60; see also Nijha-
wan v. Holder, 557 U.S. 29, 32, 38 (2009) (holding that
a statute that includes an “offense . . . involves” phrase
is “consistent with a circumstance-specific approach”).
Indeed, the Third Circuit has expressly rejected an
“ ‘essential ingredient’ test” comparable to the categor-
ical approach and instead applied case-specific analy-
sis to determine that Section 3283 applied to travel
with intent to commit an illegal sex act with a minor,
in violation of 18 U.S.C. § 2423(b). Schneider, 801 F.3d
at 196-97.
Maxwell also argues that “the clear weight of au-
thority” holds that statutes employing similar lan-
guage “should be read through a categorical rather
than case-specific lens.” (Br.44-45). But the decisions
she cites involved statutes with other features favoring
the categorical approach, which are notably absent
here. Some cases involved statutes that defined a
“crime of violence” as an offense that either “has as an
element” the use of physical force or “by its nature” in-
volves a substantial risk of force—language that in-
vokes an elements-based approach. United States v.
Davis, 139 S. Ct. 2319, 2328-29 (2019); Leocal v. Ash-
croft, 543 U.S. 1, 7 (2004). Some cases concerned the
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48

definition of an “aggravated felony” under federal im-

migration law, Kawashima v. Holder, 565 U.S. 478
(2012); Leocal, 543 U.S. at 7, a context in which the
categorical approach traditionally applies because the
inquiry is whether the alien’s prior conviction meets
the definition. Weingarten, 865 F.3d at 59. And United
States v. Morgan, 393 F.3d 192 (D.C. Cir. 2004), is like-
wise distinguishable, as it “involved a venue statute
presenting significantly different concerns” than those
present here. (A.148).
Maxwell also relies on a trio of cases, chief among
them Bridges v. United States, 346 U.S. 209 (1953).
(Br.45-47). In Bridges, the Supreme Court “applied an
‘essential ingredient’ test to determine whether an of-
fense qualified for a provision . . . that extended the
criminal limitations period for certain fraud offenses.”
Weingarten, 865 F.3d at 59 n.10. But as this Court has
explained, “Bridges is distinguishable” because the Su-
preme Court “there believed applying the restrictive
‘essential ingredient’ test to determine if an offense ‘in-
volv[ed] the defrauding of the United States’ effectu-
ated Congress’s specific intent to limit the . . . extended
limitations period to only a few offenses,” while “Con-
gress had the opposite intention for § 3283.” Id. The
other two cases, United States v. Scharton, 285 U.S.
518 (1932), and United States v. Noveck, 271 U.S. 201
(1926), are distinguishable on similar grounds. In any
event, the “essential ingredient” test does not help
Maxwell. As discussed above, an “offense involving the
sexual . . . abuse . . . of a child,” 18 U.S.C. § 3283, must
be read in light of the definition of “sexual abuse” set
forth in Section 3509(a), which encompasses a wide
range of conduct that is not limited to actual sexual
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49

contact with a child. Counts Three and Four each have

an “essential ingredient” that fits within that broad
definition. See supra Point II.B.2.a.
Finally, neither Diehl nor United States v. Coun-
tentos, 651 F.3d 809 (8th Cir. 2011), supports the use
of a categorical approach. (Br.51-52). In each decision,
the court concluded that Section 3283 applied to the
subject offenses without considering the specific facts
of the crime, but in neither case did the court consider
whether a categorical approach was required—let
alone hold that it was.
As noted above, it is undisputed that the evidence
at trial established that Maxwell’s commission of
Counts Three and Four involved completed sex acts
abusing one or more minor victims: Jane testified that
she was in fact sexually abused when transported
across state lines, including to New York, as a minor.
Accordingly, Counts Three and Four qualify as of-
fenses involving the sexual abuse of a child both by
their statutory terms and based on the specific facts of
this case.

POINT III

The District Court Did Not Abuse Its Discretion in

Concluding that Juror 50 Could Be Fair and
Impartial Notwithstanding His Inadvertent
Mistakes on His Juror Questionnaire
Maxwell contends that she was denied her right to
a fair and impartial jury because a juror failed to dis-
close during voir dire that he was sexually abused as a
child, and therefore incorrectly answered three
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50

questions on his written questionnaire. After an exten-

sive hearing, Judge Nathan concluded that the juror’s
error was inadvertent, and in any event, she would not
have struck the juror for cause had he answered those
question accurately because he was not biased in any
way against Maxwell and was qualified to serve as a
juror. Judge Nathan therefore found that Maxwell
failed to meet the high bar for a new trial and denied
her motion. This Court should affirm that careful de-
termination.

A. Relevant Facts

1. The Jury Selection Process

In November 2021, in advance of trial, 694 jurors
completed a juror questionnaire approved by the Dis-
trict Court. (Dkt.529 at 2). The juror questionnaire
was 29 pages and consisted of 51 questions, many of
which contained subparts. (A.290-317). After the par-
ties reviewed the questionnaires, 231 of the 694 pro-
ceeded to voir dire. (Dkt.529 at 2-4). The District Court
then examined prospective jurors, asking them about
questions in the jury questionnaire that prospective
jurors had answered affirmatively. The District Court
asked the prospective jurors whether the information
or experiences resulting in the affirmative answer
would interfere with their ability to be fair and impar-
tial.
At the conclusion of voir dire, the District Court
qualified 58 jurors. (Voir Dire Tr.717). Of the 58 indi-
viduals who were qualified to serve as jurors, eight in-
dividuals responded to Question 48 of the juror ques-
tionnaire that they themselves had been a victim of
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51

sexual harassment, sexual abuse, or sexual assault,

and that this experience would not affect their ability
to serve fairly and impartially as a juror in the case. 12
(A.344-45; Voir Dire Tr.18, 52, 200, 207, 259, 293, 532,
538-39, 635). Each confirmed that he or she could be
fair and impartial, and defense counsel did not move
to strike any these jurors for cause based on their answer
to Question 48. (A.345).
For instance, one juror said that she was “sexually
molested by an uncle when she was 12 or 13,” but that
would not affect her ability to be fair and impartial in
the case. (A.345). Another juror indicated that she had
recently “reported that a friend was being coerced and
sexually abused by a professor,” but confirmed that ex-
perience would not “in any way interfere with her abil-
ity to be fair and impartial” in this case. (Id.). Neither
the Government nor defense counsel challenged those
jurors for cause.
The parties then exercised their peremptory
strikes, and a jury was seated.

2. Juror 50
Juror 50 completed the questionnaire and was
questioned by Judge Nathan during voir dire. In his
questionnaire, Juror 50 repeatedly made clear that he
could be fair and impartial. In response to Question 13,

—————
12 Twelve of the 58 qualified prospective jurors in-
dicated that a friend or family member had been a vic-
tim of sexual harassment, sexual abuse, or sexual as-
sault.
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52

he indicated that he could decide the case “based solely

on the evidence or lack of evidence presented in Court,
and not on the basis of conjecture, suspicion, bias, sym-
pathy, or prejudice.” (A.295). He also accepted the
principle that the law provides that a defendant in a
criminal case is presumed innocent and the Govern-
ment is required to prove guilt beyond a reasonable
doubt. (A.294). Juror 50 indicated that there was noth-
ing about the nature of the case and the accusations as
summarized in the questionnaire that might make it
difficult for him to be fair and impartial. (A.308; see
also A.310). He repeated these assurances at oral voir
dire. (See Voir Dire Tr.128-34).
Juror 50 checked the “no” box in response to Ques-
tion 48, which asked whether he or a friend or family
member had ever been the victim of sexual harass-
ment, sexual abuse, or sexual assault. (A.310). He also
checked the “no” box in response to the question of
whether he or any of his relatives or close friends had
ever been a victim of a crime. (A.299).
Juror 50 was seated. Following the verdict, he dis-
cussed his experience as a juror during interviews with
multiple journalists. During these interviews, Juror 50
stated that he was a survivor of childhood sexual
abuse, which he did not disclose until high school, and
that his experience of sexual abuse did not affect his
ability to view Maxwell as innocent until proven
guilty. (A.249). He also stated that he did not recall the
details of the juror questionnaire, which he “flew
through,” but he believed he answered the questions
honestly. (A.245, 262).
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53

3. The Hearing
Following these reports, the Government filed a let-
ter highlighting Juror 50’s public statements and re-
questing that the District Court conduct a hearing.
(Dkt.568). After briefing, Judge Nathan ordered a lim-
ited hearing focused on Juror 50’s “potential failure to
respond truthfully to questions during the jury selec-
tion process that asked for that material information.”
(A.240; SA350). Judge Nathan denied Maxwell’s re-
quest to directly question Juror 50, which was “com-
mitted to [her] sound discretion,” but permitted the
parties to propose questions in advance of the hearing.
(SA364 (quoting United States v. Moten, 582 F.2d 654,
667 (2d Cir. 1978)). The parties did so—and Maxwell
submitted a letter renewing her request to question
Juror 50 directly and proposing twenty-one pages of
questions on topics including the nature and length of
Juror 50’s sexual abuse, the nature of the sexual abuse
experienced by any of Juror 50’s family or friends, his
own employment responsibilities, the impact of his
sexual abuse on his life and personal relationships,
whether Juror 50 ever sought mental health counsel-
ing or spoke with a therapist, how he came to give me-
dia interviews, and whether he was attempting to be
viewed as a “champion of victims of sexual abuse.”
(Dkt.636).
The District Court held a hearing on March 8, 2022,
at which Juror 50 testified under a grant of immunity.
Juror 50 testified that his answers to three questions
were not accurate: Questions 25 (whether he or a close
associate had been a victim of a crime), 48 (whether he
or a friend or family member had been a victim of
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54

sexual harassment or abuse), and 49 (whether he or a

friend or family member had been accused of sexual
harassment or abuse). He explained that, when he was
nine or ten years old, he was sexually abused by a step-
brother, who he no longer considered part of the fam-
ily, and the stepbrother’s friend. He explained that he
answered Question 49 “no” because he no longer con-
sidered the stepbrother part of his family, although he
should have answered “yes.” He also acknowledged
that he should have answered “yes” to Question 25 be-
cause he was a crime victim, although he read the
question at the time to inquire about robbery, mug-
ging, or similar crimes. (A.267-68).
Juror 50 also testified that his failure to disclose
this experience was an inadvertent mistake. He ex-
plained that he “completely skimmed way too fast”
when completing the questionnaire. (A.270-71). He did
so, he explained, in light of the context: he started the
questionnaire after several hours’ waiting in security
lines and after technical issues with the instructions.
He was preoccupied with his own recent romantic
breakup and with disruptions in the jury room. And he
rushed to complete his questionnaire because he
thought it virtually impossible that he would be se-
lected as a juror given the number of people complet-
ing the questionnaire. He did not generally think
about his personal history of sexual abuse, and it did
not occur to him while carelessly speeding through the
questionnaire. (A.269-72).
At oral voir dire, Juror 50 had not been asked the
questions Judge Nathan posed to prospective jurors
who answered affirmatively to questions 25, 48, or 49,
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55

and therefore was not asked any questions about sex-

ual abuse. At the hearing, Judge Nathan examined Ju-
ror 50 in detail, and Juror 50 emphasized that his ex-
periences did not affect his ability to be fair and impar-
tial, his ability to fairly assess the credibility of victim-
witnesses, or his ability to impartially judge Maxwell’s
guilt. (A.268, 270, 276-77).

4. The District Court’s Decision

Judge Nathan denied Maxwell’s motion for a new
trial in a detailed written opinion. (A.318). First,
Judge Nathan concluded that Juror 50’s answers were
not deliberately inaccurate, crediting Juror 50’s testi-
mony in light of his demeanor and consistent, logical
answers to her questions. (A.333-35). Second, Judge
Nathan concluded that she would not have granted a
for-cause challenge to Juror 50 had he provided accu-
rate information. At the hearing, Judge Nathan asked
Juror 50 the questions she asked other jurors who in-
dicated a personal experience with sexual assault or
abuse. She concluded that “Juror 50’s credible re-
sponses [to those questions] under oath at the hearing
established that he would not have been struck for
cause if he had provided accurate responses to the
questionnaire.” (A.340). As Judge Nathan explained,
other jurors who answered the questions similarly
were not even challenged for cause, and she would not
have granted a challenge had one been made. (A.344-
45). She also rejected the notion that mere similarities
between Juror 50’s life experiences and the issues at
trial required her to excuse Juror 50 for cause. (A.346).
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B. Applicable Law
Federal Rule of Criminal Procedure 33(a) permits
a district court to “vacate any judgment and grant a
new trial if the interest of justice so requires.” As this
Court has explained, “[t]he defendant bears the bur-
den of proving that he is entitled to a new trial under
Rule 33, and before ordering a new trial pursuant to
Rule 33, a district court must find that there is a real
concern that an innocent person may have been con-
victed.” United States v. McCourty, 562 F.3d 458, 475
(2d Cir. 2009).
Post-verdict inquiries into juror conduct are
strongly disfavored. Such inquiries “seriously disrupt
the finality of the process.” Tanner v. United States,
483 U.S. 107, 120-21 (1987). Permitting “post-verdict
scrutiny of juror conduct” would undermine pillars
that undergird the jury trial right, including “full and
frank discussion in the jury room, jurors’ willingness
to return an unpopular verdict, and the community’s
trust in a system that relies on the decisions of laypeo-
ple.” Id. Such inquiries may instead “lead to evil con-
sequences: subjecting juries to harassment, inhibiting
juryroom deliberation, burdening courts with merit-
less applications, increasing temptation for jury tam-
pering and creating uncertainty in jury verdicts.”
United States v. Ianniello, 866 F.2d 540, 543 (2d Cir.
1989).
Accordingly, a defendant seeking Rule 33 relief
based on alleged juror misrepresentations during voir
dire must satisfy a stringent two-part test. First, a
party must “demonstrate that a juror failed to answer
honestly a material question on voir dire.” McDonough
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57

Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556

(1984). Second, the party must show “that a correct re-
sponse would have provided a valid basis for a chal-
lenge for cause.” Id. To satisfy this prong, a court must
determine whether, if the juror had answered truth-
fully, it would have granted a hypothetical strike for
cause. United States v. Stewart, 433 F.3d 273, 304 (2d
Cir. 2006).
A party may challenge a juror for cause based only
on “narrowly specified, provable and legally cognizable
bases.” United States v. Torres, 128 F.3d 38, 43 (2d Cir.
1997). In the context of voir dire, challenges for cause
generally fall into one of three “limited” categories: ac-
tual bias, implied bias, or inferable bias. Id. “Actual
bias is bias in fact—the existence of a state of mind
that leads to an inference that the person will not act
with entire impartiality.” Id. Implied bias, also called
“presumed bias,” is “bias conclusively presumed as a
matter of law.” Id. at 45. This Court has emphasized
that this category is “narrow,” and “reserved for ‘ex-
ceptional situations,’ ” generally meaning circum-
stances in which jurors “are related to the parties” or
“were victims of the alleged crime itself.” Id. at 45-46.
Finally, “[b]ias may be inferred when a juror discloses
a fact that bespeaks a risk of partiality sufficiently sig-
nificant to warrant granting the trial judge discretion
to excuse the juror for cause, but not so great as to
make mandatory a presumption of bias.” Id. at 46-47.
Where there are concrete allegations of juror mis-
conduct, a court may conduct a post-verdict hearing.
See United States v. Baker, 899 F.3d 123, 130 (2d Cir.
2018). The inquiry “should be limited to only what is
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absolutely necessary to determine the facts with preci-

sion.” Ianniello, 866 F.2d at 544. “[T]he proper func-
tioning of the jury system requires that the courts pro-
tect jurors from being harassed and beset by the de-
feated party in an effort to secure from them evidence
of facts which might establish misconduct sufficient to
set aside a verdict.” Moten, 582 F.2d at 664. Accord-
ingly, the district court “has the power and the duty to
supervise and closely control such inquiries.” United
States v. Calbas, 821 F.2d 887, 896 (2d Cir. 1987). For
example, the district court may choose to personally
conduct the questioning of a juror in order to avoid in-
truding on the jury’s deliberations. See, e.g., Calbas,
821 F.2d at 896. At such a hearing, and with limited
exceptions, the juror “may not testify about any state-
ment made or incident that occurred during the jury’s
deliberations; the effect of anything on that juror’s or
another juror’s vote; or any juror’s mental processes
concerning the verdict or indictment. The court may
not receive a juror’s affidavit or evidence of a juror’s
statement on these matters.” Fed. R. Evid. 606(b)(1).
This Court reviews the denial of a Rule 33 motion
for abuse of discretion. United States v. Archer, 977
F.3d 181, 187 (2d Cir. 2020). A district court only
abuses its discretion if its decision “rests on an error of
law (such as application of the wrong legal principle)
or a clearly erroneous factual finding” or “its decision
. . . cannot be located within the range of permissible
decisions.” Id. This Court “has only on rare occasions
overturned a verdict or remanded for an evidentiary
hearing” based on the failure of a juror to disclose in-
formation during jury selection. United States v. Te-
man, 465 F. Supp. 3d 277, 330 (S.D.N.Y. 2020).
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C. Discussion
Judge Nathan conducted a thorough inquiry and
determined that Juror 50’s inadvertent errors on the
jury questionnaire did not undermine Maxwell’s right
to a fair trial. Maxwell does not meaningfully engage
with Judge Nathan’s careful opinion, instead suggest-
ing that Juror 50’s testimony at the hearing was “pa-
tently absurd.” (Br.63). These conclusory arguments
fall far short of establishing that Judge Nathan abused
her discretion in finding that this case does not present
the extraordinary circumstances that justify overturn-
ing a jury’s verdict based on an error during voir dire.
Maxwell’s claim fails at the first step of
McDonough because Juror 50’s errors were inadvert-
ent. Juror 50 testified as much at the hearing, provid-
ing a detailed narrative of why his errors were a fail-
ure of diligence as he rushed through the question-
naire while distracted. (A.333-34). Judge Nathan cred-
ited this explanation in light of his demeanor, which
she “closely observe[d]” as he testified, including dur-
ing his answers to questions “he appeared not to ex-
pect.” (A.333). She explained that his answers were
“logical explanations and generally internally con-
sistent,” given in a “calm and straightforward man-
ner.” (Id.). Juror 50’s explanations were consistent
with “his sworn statements months earlier at oral voir
dire” and his testimony that “his sexual abuse history
was not salient or [a] front-of mind consideration.”
(Id.). Judge Nathan also noted that Juror 50’s answers
aligned with his incentives: by testifying under a grant
of immunity, he could not be prosecuted for his false
answers on the questionnaire, but he could be
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prosecuted for false testimony at the hearing (id.), and

had he hidden his sexual abuse in order to get on the
jury, he would not have immediately disclosed it to the
media after trial (A.335). To the contrary, in one video
interview with the media, Juror 50 “appears genuinely
and completely surprised to learn that the question-
naire” asked about his history of sexual abuse. (Id.).
Maxwell does not directly challenge Judge Na-
than’s factual findings on this point, much less demon-
strate that they are clearly erroneous. Instead, relying
on United States v. Langford, 990 F.2d 65, 68 (2d Cir.
1993), Maxwell argues that McDonough’s first step is
satisfied by any falsehood, deliberate or otherwise.
(Br.66).
This argument misses the mark. This prong re-
quires a showing of deliberate dishonesty by the juror,
rather than mere honest mistake. This Court has ex-
plained that, in McDonough, the Supreme Court
“found that the juror’s good faith failure to respond,
though mistaken, did not satisfy even the first prong
of the test.” United States v. Shaoul, 41 F.3d 811, 815
(2d Cir. 1994). The defendant in Shaoul also relied on
Langford to contend that a new trial was appropriate
“even if he cannot establish the juror’s dishonesty.” Id.
This Court rejected that argument, concluding that
“[s]uch a contorted reading of Langford is incorrect, be-
cause it would eliminate the threshold requirement of
the McDonough test: juror dishonesty.” Id. And this
Court concluded that the defendant failed to satisfy
the first prong of the test because “defense counsel ex-
plicitly conceded the good faith of the juror.” Id. at 816;
see United States v. McCoy, 995 F.3d 32, 51 (2d Cir.
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61

2021) (holding that district court “properly recognized

that the initial question to be explored is whether the
juror’s nondisclosure was deliberate or inadvertent”),
vacated on other grounds, 142 S. Ct. 2863 (2022), rein-
stated, 58 F.4th 72, 75 (2d Cir. 2023).
Maxwell’s claim also fails at the second step of
McDonough. The hearing established that Juror 50
harbored no bias, approached his jury service with an
open mind, and was committed to deciding the case
based on the evidence and the District Court’s legal in-
structions. As Judge Nathan found, “Juror 50’s credi-
ble responses [to questions asked of all jurors who in-
dicated prior personal experience with sexual abuse]
under oath at the hearing established that he would
not have been struck for cause if he had provided ac-
curate responses to the questionnaire.” (A.340). If Ju-
ror 50 had accurately answered the questions relating
to sexual abuse in the questionnaire, Judge Nathan
would have asked Juror 50 follow-up questions during
voir dire to determine if it would have granted a chal-
lenge for cause. Judge Nathan asked those questions
at the hearing, and Juror 50’s sworn responses made
clear that he was a fair and impartial juror who did
not harbor any bias and who would not have been ex-
cused for cause.
Nor was Juror 50 the subject of any bias, actual,
implied, or inferred. After assessing Juror 50’s de-
meanor, Judge Nathan found that he “repeatedly and
credibly affirmed that his personal history of sexual
abuse would not affect his ability to serve as a fair and
impartial juror ‘in any way’ ” (A.341-42), belying any
suggestion that he was actually biased against
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Maxwell. Judge Nathan also correctly rejected Max-

well’s “central argument” that she should imply or in-
fer bias “based on the purported similarities between
[Juror 50’s] personal history and the issues at trial.”
(A.342-43). Judge Nathan explained that she “need not
imagine a wholly hypothetical universe” to reach that
conclusion. (A.344). During voir dire, she asked “every
follow-up question requested by the Defendant with
regard to a juror’s personal experience with sexual as-
sault, abuse, or harassment; although, for a majority
of these eight jurors, the Defendant did not propose
any follow-up questions.” (A.344-45). One prospective
juror described her own childhood sexual abuse at an
age closer to the victims in this case; another described
a friend’s recent coercive sexual abuse by a professor.
(A.345). Maxwell did not even bring a for-cause chal-
lenge as to either. (Id.). Similarly, a for-cause chal-
lenge against Juror 50 would not have prevailed.
On appeal, Maxwell contends that, had Juror 50
answered the questionnaire accurately, it “clearly”
would have provided a basis for a for-cause challenge.”
(Br.67). In particular, Maxwell challenges Judge Na-
than’s finding that Juror 50 was credible and unbi-
ased, relying on a few isolated statements drawn from
various parts of the hearing transcript and some of his
post-verdict statements. (Br.71-72). As described
above, Judge Nathan explained how Juror 50’s expla-
nation for his erroneous answers was plausible and
consistent, and she found him credible after assessing
his demeanor through challenging questioning. She
also properly disregarded his post-verdict statements
about the case, explaining that “[a] juror’s view of a
case and defendant would necessarily change after
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reviewing thirteen days of evidence that persuaded

twelve jurors of the Defendant’s guilt.” (A.352). Actual
and inferred bias are both committed to the province
of the trial judge, and Judge Nathan’s findings that
neither existed were not clearly erroneous. See Torres,
128 F.3d at 44 (“[A] finding of actual bias is based upon
determinations of demeanor and credibility that are
peculiarly within a trial judge’s province.”); United
States v. Greer, 285 F.3d 158, 172 (2d Cir. 2002) (“[A]
finding of inferred bias is, by definition, within the dis-
cretion of the trial court.”).
Maxwell also argues that Judge Nathan should
have implied bias, highlighting some similarities be-
tween Juror 50’s sexual abuse and the sexual abuse
discussed at trial. (Br.67). That falls far short of re-
quiring the District Court to imply bias. First, as
Judge Nathan explained, the law is not that “bias must
be implied when a juror has a personal experience sim-
ilar to the issues at trial.” (A.349). Rather, this Court
has “consistently refused to create a set of unreasona-
bly constricting presumptions that jurors be excused
for cause due to certain occupational or other special
relationships which might bear directly or indirectly
on the circumstances of a given case.” (A.349 (quoting
Torres, 128 F.3d at 46)). This case is not within one of
the rare, extreme circumstances where a mandatory
presumption of bias applies. See, e.g., Torres, 128 F.3d
at 45; Greer, 285 F.3d at 172. Second, although there
are some similarities between Juror 50’s childhood
sexual abuse, there are also differences: Juror 50 was
younger than the trial victims at the time of their
abuse, he was abused by a family member, and he dis-
closed his abuse much earlier. (A.350). And critically,
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Juror 50 credibly testified at the hearing that he was

able to put aside his experience of sexual abuse and
judge the evidence fairly. This is not the sort of “ex-
treme situation that call[s] for mandatory removal.”
(A.349 (quoting Torres, 128 F.3d at 46)).
More generally, it is entirely appropriate for jurors
to “rely on their common sense and life experiences to
adjudge guilt.” (A.352). These “very human elements
. . . constitute one of the strengths of our jury system,
and we cannot and should not excommunicate them
from jury deliberations.” (A.353 (quoting United States
ex rel. Owen v. McMann, 435 F.2d 813, 818 (2d Cir.
1970)). On these facts, “[t]o imply or infer that Juror
50 was biased—simply because he was himself a vic-
tim of sexual abuse in a trial related to sexual abuse
and sex trafficking, and despite his own credible testi-
mony under the penalty of perjury, establishing that
he could be an even-handed and impartial juror—
would be tantamount to concluding that an individual
with a history of sexual abuse can never serve as a fair
and impartial juror in such a trial. That is not the law,
nor should it be.” (A.346-47).
Finally, Maxwell suggests that Judge Nathan
abused her discretion by precluding defense counsel
from questioning Juror 50, and precluding inquiry into
Juror 50’s “statements to journalists.” (Br.70). As to
the former, the manner in which the hearing proceeds
is committed to a district court’s “sound discretion,”
Moten, 582 F.2d at 666, including specifically the “ex-
tent to which the parties may participate in question-
ing the witnesses,” Iannielo, 866 F.2d at 544. Judge
Nathan reasonably decided to lead the questioning
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65

herself, with repeated opportunities both before and

during the hearing for counsel to suggest questions.
And Judge Nathan’s decision is reinforced by counsel’s
requests for “vexatious, intrusive, unjustified” subpoe-
nas (SA365), and for questions that swept well beyond
Juror 50’s ability to be an impartial juror and instead
probed deeply into “other aspects of his life” (Br.69).
As to Juror 50’s “statements to journalists,” it is not
entirely clear which statements Maxwell thinks
should have been part of the hearing. The hearing of
course covered both the substance of his sexual abuse
and the fact of his statements to journalists. (See, e.g.,
A.275 (asking whether Juror 50 understood “from your
interviews that the fact that you were abused would be
a known fact in the world.”)). It appears that, in Max-
well’s view, Judge Nathan should have inquired into
whether and how his sexual abuse affected the delib-
erations in the jury room. (Br.71 (suggesting that Ju-
ror 50 “operate[d] as an unsworn expert on the subject
of traumatic memory”)). Acknowledging Rule 606(b)’s
prohibition on inquiry into jurors’ deliberations and
mental processes, Maxwell argues that the exception
for “extraneous prejudicial information [that] was im-
properly brought to the jury’s attention,” Fed. R. Evid.
606(b)(2)(A), applies here. (Br.71). But Maxwell ex-
pressly waived this argument in the District Court, ex-
plaining that she “[d]oes not seek to impeach the ver-
dict based on the content of deliberations” and “need
not inquire into the content of deliberations to estab-
lish her jury bias claim.” (Dkt.613 at 49-50). And in
any event, the exception does not apply because the
“experiences that jurors are understood to bring with
them to the jury room” are “internal matters” that do
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not constitute “extraneous” information. Warger v.

Shauers, 574 U.S. 40, 51-52 (2014) (rejecting party’s
attempt to use the “extraneous” information exception
to establish that a juror should have been excluded un-
der McDonough based on his personal experiences).

POINT IV

The District Court’s Response to a Jury Note Did

Not Constructively Amend the Indictment
At all times the Government consistently argued
that Maxwell enticed and transported Jane to New
York with the intent that Jane engage in illegal sexual
activity, and that Maxwell conspired to do so regarding
Jane and the other victims. That is the issue Judge
Nathan instructed the jury to resolve, and that is the
criminal conduct charged in Counts Three and Four of
the Indictment. Accordingly, no constructive amend-
ment or variance occurred.

A. Relevant Facts
Counts Three and Four charged Maxwell with ar-
ranging for Jane’s transportation to New York with
the intent that Jane would engage in sex acts with Ep-
stein, in violation of New York state law, and with a
conspiracy to transport minors to New York for the
same purpose. (A.127-30). At trial, the Government
marshalled evidence that Maxwell transported Jane to
New York, and aided and abetted Epstein in doing so,
with the intent that Jane engage in sexual activity
there. That evidence included detailed testimony from
Jane about Epstein’s New York residence (Tr.316-19)
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and specific sexual acts that took place in New York

while Jane was a minor (Tr.319-20).
The Government’s summation similarly discussed
these charges as encompassing conduct directed at
New York. As to Count Four, the Government argued
the evidence showed “Jane was transported to New
York,” and Maxwell was involved in making travel ar-
rangements. (Tr.2891 (emphasis added)). The Govern-
ment also clarified that “[t]he crime happened the mo-
ment [Maxwell, Epstein, and Jane] crossed state
lines,” and “to be very clear, when Epstein flew Jane to
New York and Maxwell aided and abetted him, that’s
enough too.” (Id. (emphasis added)). For the conspiracy
counts, the Government referenced its earlier discus-
sion of the elements of the substantive offenses. And
the Government argued that, “even though Carolyn
and Annie were not sexually abused in New York . . .
that is what [Maxwell and Epstein] both intended.”
(Tr.2895 (emphasis added); see Tr.2895-96 (arguing
that Maxwell “groomed Annie for abuse after she had
already visited Epstein in New York.” (emphasis
added))).
The District Court’s jury instructions also permit-
ted the jury to determine only whether Maxwell had
intended that Jane (for the substantive counts) or the
conspiracy victims engage in sexual activity in New
York. During trial, Judge Nathan granted defense re-
quests for limiting instructions at the time evidence
came in to make clear that the charges focused on the
intent that sexual activity take place in New York.
(Tr.1167-68 (Kate), 2048-49 (Annie)). At the conclusion
of trial, Judge Nathan instructed the jury that Count
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Four alleged that Maxwell knowingly transported

Jane “with the intent that Jane engage in sexual ac-
tivity for which any person can be charged with a crim-
inal offense in violation of New York law.” (Tr.3037;
see Tr.3035 (second element of Count Four requires
proof of an intent to violate “New York law as alleged
in the indictment”)). Judge Nathan also instructed the
jury on one and only one predicate state offense: a vio-
lation of N.Y. Penal Law § 130.55. (Tr.3034, 3037). The
instructions on Count Three incorporated this discus-
sion of the elements of Count Four, and the only stat-
ute identified was N.Y. Penal Law § 130.55. (Tr.3049-
50, 3056-57).
During deliberations, the jury sent the following
note:
Under Count Four, if the defendant aided
in the transportation of Jane’s return
flight, but not the flight to New Mexico
where/if the intent was for Jane to en-
gage in sexual activity, can she be found
guilty under the second element?
(Tr.3126). The note led to a lengthy discussion, at the
conclusion of which Judge Nathan determined she
should refer the jury back to the jury charge on the
second element of Count Four because the jury note
was otherwise “too difficult to parse factually and le-
gally.” (Tr.3126-40).
That night, Maxwell filed a letter seeking reconsid-
eration of Judge Nathan’s response and raising the
possibility of a constructive amendment or prejudicial
variance because, in her view, the note showed that
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the jury might convict based on Jane’s testimony that

she was abused in New Mexico. (A.224-25). Maxwell
asked Judge Nathan to instruct the jury as to the in-
tent elements of Counts Two and Four, and add that
“[a]n intent that Jane engage in sexual activity in any
state other than New York cannot form the basis of
these two elements of Counts Two and Four.” (A.229).
Judge Nathan rejected Maxwell’s request both be-
cause the jury did not inquire about Count Two and
because the final sentence as “just wrong” in suggest-
ing that an intent that Jane engage in sexual activity
outside of New York “may have no relevance.”
(Tr.3149). As Judge Nathan explained, “This is the
same discussion we’ve had a couple of times . . . . Sex-
ual activity with respect to Jane in New Mexico under
the age of 17 can be relevant to an intent to transport
to New York to engage in sexual activity under the age
of 17 . . . .” (Tr.3149-50). Judge Nathan repeated that
she did “not know how to parse the jury’s question ex-
actly,” but that her instruction directing the jury to the
original charge included a reminder that “it’s a viola-
tion of New York penal law that’s charged and is the
illegal sexual activity that they’re considering.”
(Tr.3150). Judge Nathan also pointed out that Max-
well did not “seek to exclude” Jane’s testimony about
New Mexico, or “seek a limiting instruction with re-
spect to that testimony.” (Tr.3153). Judge Nathan
added “I have no idea if that’s what the jury is asking
or many other plausible readings,” noted that the de-
fense had proposed an “incorrect” instruction, and con-
cluded no more was required than sending the jury
“back to the charge.” (Tr.3154).
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B. Applicable Law
“A constructive amendment occurs when the
charge upon which the defendant is tried differs sig-
nificantly from the charge upon which the grand jury
voted.” United States v. Khalupsky, 5 F.4th 279, 293
(2d Cir. 2021). “Not every alteration of an indictment,
however, rises to the level of a constructive amend-
ment.” United States v. Dove, 884 F.3d 138, 146 (2d
Cir. 2018). Instead, “[t]o prevail on a constructive
amendment claim, a defendant must demonstrate that
the terms of an indictment are in effect altered by the
presentation of evidence and jury instructions which
so modify essential elements of the offense that there is
a substantial likelihood that the defendant may have
been convicted of an offense other than that charged in
the indictment.” United States v. D’Amelio, 693 F.3d
412, 416 (2d Cir. 2012).
This Court has “consistently permitted significant
flexibility in proof, provided that the defendant was
given notice of the core of criminality to be proven at
trial.” United States v. Lebedev, 932 F.3d 40, 53 (2d
Cir. 2019). The “core of criminality” is “the essence of
a crime, in general terms,” but not “the particulars of
how a defendant effected the crime.” D’Amelio, 693
F.3d at 418. There is no constructive amendment
where the allegations in the indictment and the proof
at trial both relate to a “single set of discrete facts,” or
form “part of a single course of conduct” with the same
“ultimate purpose.” Id. at 419-21.
“A variance occurs when the charging terms of the
indictment are left unaltered, but the evidence offered
at trial proves facts materially different from those
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alleged in the indictment.” United States v. Banki, 685

F.3d 99, 119 (2d Cir. 2012). Reversal due to a variance
is appropriate only when the defendant can establish
“that substantial prejudice occurred at trial as a result
of the variance,” a showing that cannot be made
“where the pleading and the proof substantially corre-
spond, where the variance is not of a character that
could have misled the defendant at 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.” Khalupsky, 5 F.4th at 294. So
long as a defendant receives notice of the Govern-
ment’s theory, the defendant cannot show prejudice.
See, e.g., Banki, 685 F.3d at 119.
This Court reviews claims of constructive amend-
ment and prejudicial variance de novo. Dove, 884 F.3d
at 146, 149.

C. Discussion
There is no likelihood—much less a substantial
likelihood—that the jury convicted Maxwell solely be-
cause Jane was transported to New Mexico. At no
point during the trial, including its summation, did the
Government argue that the jury could convict on a the-
ory that Maxwell intended Jane to be abused in New
Mexico. Similarly, the District Court’s charge required
the jury to decide whether Maxwell intended to violate
New York law. The trial contained no instructions de-
scribing for the jury any particular criminal statute in
New Mexico, or any other basis by which a jury could
convict based on conduct in New Mexico.
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Maxwell’s argument to the contrary rests entirely

on her reading of the jury note. According to Maxwell,
the note shows that the jury “decided that there was
no corroborating evidence that Maxwell was present
for, or helped to arrange, any of Jane’s trips to New
York, but that the flight logs did corroborate that Max-
well was present for Jane’s trip to New Mexico.”
(Br.79). This reading, she claims, is buttressed by the
fact that the jury acquitted on Count Two, which, in
her telling, shows that the jury “determined that the
only corroborating evidence linking Maxwell to the
New Mexico trip was a flight log showing that she was
present on the trip but said nothing about whether she
‘persuaded, induced, enticed, or coerced’ Jane to take
the trip.” (Br.79).
Judge Nathan correctly rejected this argument.
Judge Nathan found that the original jury instructions
and the Government’s summation captured the core of
criminality charged in the Indictment, focusing specif-
ically on conduct directed at and sexual activity in New
York. (A.382-85). Even if the note revealed that the
jury were confused and wondered whether it could con-
vict based on conduct in New Mexico, Judge Nathan’s
response ameliorated that confusion. As Judge Nathan
explained, she sent the jury back to the instruction,
which “accurately instructed that Count Four had to
be predicated on finding a violation of New York Law.”
(A.387). That was sufficient. See United States v.
Rommy, 506 F.3d 108, 126 (2d Cir. 2007) (court “enjoys
considerable discretion” in “framing a response” to a
jury note and “is only required to answer the particu-
lar inquiries posed”). As Judge Nathan explained,
Maxwell failed to propose a better response,
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requesting instead a series of instructions that were

“unresponsive,” “redundant,” and “legally inaccurate.”
(A.388-89). See Rommy, 506 F.3d at 126 (court re-
sponding to jury note “is not required to reference spe-
cific arguments advanced or defenses raised by counsel
in urging particular outcomes”). Judge Nathan’s re-
sponse to the jury note was sound and did not con-
structively amend the Indictment.
Maxwell’s contrary view rests on extensive specu-
lation about “which flights and evidence the jury was
referencing in the note.” (A.386). The trial included,
among other evidence, testimony by Jane about “tak-
ing numerous flights both on Epstein’s private plane
and on commercial carriers.” (A.386). Maxwell ignores
that evidence, focusing on a specific trip referenced in
the flight logs. (Br.78-79). Even if Maxwell correctly
identified the flight at issue, it still betrayed no jury
confusion. The origin of that trip was New York, and
the jury’s focus was on the “return flight”—which it
could have inferred was a flight to New York, where
Maxwell intended Jane to engage in sexual activity.
Her view also rests on adopting one specific reading
of a note that, as Judge Nathan explained, was “decid-
edly ambiguous as to the precise legal question being
asked” (A.386). See Rommy, 506 F.3d at 126 (district
court “enjoys considerable discretion in construing the
scope of a jury inquiry”). Maxwell herself initially un-
derstood the note to be about “aiding and abetting” li-
ability, and whether sexual activity was a sufficiently
“ ‘significant or motivating purpose’ for the travel.”
(A.387); see United States v. Kim, 471 F. App’x 82, 84
(2d Cir. 2012) (affirming jury instructions that
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74

prostitution must be a “significant or motivating pur-

pose” of the interstate transportation). Maxwell only
came to the theory she now advances after a lengthy
discussion spanning ten pages of the transcript.
(A.387). And that reading is far from clear: the jury’s
question does not ask whether certain facts are suffi-
cient for guilt; it asks whether Maxwell “can be found
guilty” if a certain fact is true. Maxwell “can” be found
guilty based in part on sexual activity occurring in
New Mexico, which is probative of Maxwell’s intent
and role in transporting Jane. That is a perfectly sen-
sible question for the jury to ask—indeed, it was re-
peatedly raised by defense counsel to Judge Nathan at
trial. (See, e.g., Tr.3149).
Setting aside the jury note, Maxwell’s position re-
quires the jury to have reached a series of odd conclu-
sions. Jane testified at length about her travel to New
York and the ensuing sexual abuse there. It would
make little sense for the jury to reject that testimony,
and then conclude that Maxwell arranged the uniden-
tified commercial return flight Maxwell now empha-
sizes, for which there is no documentary evidence in
the record, including no specific corroboration of Max-
well’s role in arranging that flight. (Compare Br.79-80
(“[T]he jury likely believed that if they found Maxwell
had some role in arranging Jane’s return flight from
New Mexico, after the sexual abuse had already taken
place, they could convict her on the substantive trans-
portation count . . . .”) with Tr.3133 (defense argument
that there is “no evidence” Maxwell arranged a return
flight from New Mexico)). Maxwell suggests that the
jury thought the flight records to be critical evidence,
but the flight logs also demonstrate that Jane was
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75

flown to New York on Epstein’s private jet, corroborat-

ing her testimony on that point. (See Br.79 (citing GX-
662-R at 44)). The same is true regarding Maxwell’s
comparison of Counts Two and Four: in Maxwell’s
view, the jury rejected nearly all of the evidence of
Maxwell’s enticement of Jane to New York for lack of
corroboration, and then convicted her based on an un-
supported speculative leap about arranging an uni-
dentified return flight from New Mexico. That is not
plausible, and it certainly is not a “substantially
likely” conclusion that can be drawn from an inscruta-
ble jury note.
For similar reasons, no variance occurred. As dis-
cussed above, the proof at trial corresponded to the al-
legations in the Indictment, namely, evidence and ar-
gument that Maxwell enticed and transported Jane to
New York in order to facilitate sexual abuse there.
Maxwell was also well aware that the Government’s
proof would include conduct in New Mexico. (See
A.117, 121-22, 126). Maxwell therefore had “fair and
adequate notice” that the conspiracies included con-
duct at Epstein’s New Mexico home, which is all that
is required. United States v. Salmonese, 352 F.3d 608,
622 (2d Cir. 2003). In any event, the Government pro-
duced on November 6, 2021—more than three weeks
before trial—notes from an interview with Jane de-
scribing sexual abuse in New Mexico. That is suffi-
cient. See Lebedev, 932 F.3d at 54 (rejecting a prejudice
argument in part because “[t]he government disclosed
the evidence and exhibits . . . four weeks prior to trial”).
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76

POINT V

The Sentence Was Procedurally Reasonable

A. Applicable Law
A district court commits procedural error if, among
other things, it “makes a mistake in its Guidelines cal-
culation” or “fails adequately to explain its chosen sen-
tence.” United States v. Cavera, 550 F.3d 180, 190 (2d
Cir. 2008) (en banc). This Court reviews a district
court’s” application of the Guidelines de novo, while
factual determinations underlying a district court’s
Guidelines calculation are reviewed for clear error.”
United States v. Cramer, 777 F.3d 597, 601 (2d Cir.
2015). In explaining the sentence, a district court must
show that “it has considered the parties’ arguments
and that it has a reasoned basis for exercising its own
legal decisionmaking authority.” Cavera, 550 F.3d at
193.

B. Discussion
Maxwell argues that the District Court erred by ap-
plying a four-level leadership enhancement under
§ 3B1.1 of the Sentencing Guidelines. That enhance-
ment applies when a defendant was an “organizer or
leader of a criminal activity that was . . . otherwise ex-
tensive,” which must include the defendant’s leader-
ship of at least one other criminal participant.
U.S.S.G. § 3B1.1 & cmt. n.2. Maxwell contests only
whether the evidence showed that she led another
criminal participant. (Br.84-85).
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77

On that point, Judge Nathan found that Maxwell

led Sarah Kellen. Two witnesses, both pilots for Ep-
stein, testified that Kellen was Maxwell’s assistant.
(A.417; see Tr.139-40, 1890). Judge Nathan found that
testimony credible, in part because it was corroborated
by other testimony that Maxwell was Epstein’s “num-
ber two and the lady of the house” in Palm Beach
where much of the abuse occurred and where Kellen
worked. (A.417). The trial evidence showed that Kellen
scheduled sexualized massages and took nude photo-
graphs of Carolyn. (PSR ¶ 66; Tr.1554-55). Even after
Kellen took over some of Maxwell’s duties, Maxwell
continued to manage her by virtue of her position in
the house, a fact corroborated by a household manual
directing staff to tend to the specific needs of Epstein,
Maxwell, and their guests, as well as flight records
showing that Maxwell and Kellen flew together on Ep-
stein’s planes dozens of times. (A.417). The clear infer-
ence from this record is that Maxwell instructed Kel-
len regarding how to schedule massages and run the
part of the scheme that Maxwell had previously han-
dled, at which point Kellen switched to making calls to
schedule appointments following Maxwell’s directions.
Maxwell argues that Judge Nathan erred because a
defense witness testified that she, rather than Kellen,
was Maxwell’s assistant. (Br.85). That uncorroborated
testimony is not enough to render Judge Nathan’s
finding clearly erroneous. Moreover, what matters is
whether Maxwell exercised supervisory authority over
Kellen, not whether Kellen or another individual was
formally Maxwell’s assistant.
Maxwell also argues that when imposing the 240-
month sentence, which was above the Guidelines
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78

range of 188 to 235 months’ imprisonment, Judge Na-

than “failed to provide reasons for its upward vari-
ance.” (Br.84). Maxwell’s one-sentence argument is so
cursory and undeveloped that it should be deemed
waived. See United States v. Botti, 711 F.3d 299, 313
(2d Cir. 2013) (“It is a settled appellate rule that issues
adverted to in a perfunctory manner, unaccompanied
by some effort at developed argumentation, are
deemed waived.”). In any event, Judge Nathan en-
gaged in a lengthy discussion of the sentencing factors
when imposing sentence, including Maxwell’s “pivotal
role” in “heinous and predatory” sexual abuse of minor
girls. (SA459). In describing the seriousness of the of-
fense, Judge Nathan found Maxwell’s crimes to be
both “extensive” and far-reaching” and concluded that
“the damage done to these young girls was incalcula-
ble,” as a result of “the painful, horrific, and lasting
impact of [the] trauma” they endured. (SA460). After
an extensive discussion of Maxwell’s horrifying crimes,
Judge Nathan explained that this conduct “demands a
substantial sentence that meets the scope of the con-
duct and the scope of the harm,” and that the sentence
must “send an unmistakable message” of general de-
terrence to “those who engage in and facilitate the sex-
ual abuse and trafficking of underage victims” that
“nobody is above the law.” (SA461). Accordingly, Judge
Nathan concluded that “a very serious, a very signifi-
cant sentence is necessary to achieve the purposes of
punishment” under 18 U.S.C. § 3553(a). (SA462). This
discussion belies any claim that Judge Nathan inade-
quately explained the sentence.
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79

CONCLUSION
The judgment of conviction should be affirmed.

Dated: New York, New York

June 29, 2023

Respectfully submitted,

DAMIAN WILLIAMS,
United States Attorney for the
Southern District of New York,
Attorney for the United States
of America.

MAURENE COMEY,
ALISON MOE,
LARA POMERANTZ,
WON S. SHIN,
Assistant United States Attorneys,
Of Counsel.
Case 22-1426, Document 79, 06/29/2023, 3536060, Page93 of 93

CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure
32(g), the undersigned counsel hereby certifies that
this brief complies with the type-volume limitation set
by the Court in its order dated April 28, 2023. As meas-
ured by the word processing system used to prepare
this brief, there are 19,291 words in this brief.

DAMIAN WILLIAMS,
United States Attorney for the
Southern District of New York

By: WON S. SHIN,

Assistant United States Attorney