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Ghislaine Maxwell Appeals Citing Epstein NPA and Juror 50 Scotty David

By Matthew Russell Lee, Patreon Maxwell Book

SDNY COURTHOUSE, Feb 28  – Ghislaine Maxwell, convicted on five of six sex trafficking charges in December 2021 (Inner City Press book here), was up for sentencing on June 28. She got 20 years in prison and a $750,000 fine. Inner City Press live tweeted it here and below.

On July 15 for Maxwell's appeal to the Second Circuit, Bobbi Sternheim filed a notice to be removed in favor of Hon. John M. Leventhal (Ret.) of Aidala, Bertuna & Kamins, PC: "I am informed that Hon. John M. Leventhal (Ret.) of Aidala, Bertuna & Kamins, PC has been retained to represent Ms. Maxwell on appeal and will be filing notice of appearance today. 7. Since new counsel has been retained to represent Ms. Maxwell on appeal, I move to be relieved." Photo of filing on Patreon here.

On July 28 this new counsel wrote to the Second Circuit and asked for a delay to file his briefing. Letter on Patreon here.

On August 1, the request was approved, photo on Substack here. So, appeal delayed...

On February 28, 2023, the appeal was filed, here is the table of contents:

POINT I ALL COUNTS SHOULD BE DISMISSED PURSUANT TO THE NON-PROSECUTION AGREEMENT.........13 A. The NPA ......13 B. Appellant may enforce the NPA as a third-party beneficiary..........16 C. The “potential co-conspirators” provision binds the USAO-SDNY, and Annabi is not to the contrary.....................16 1. Introduction.......16 2. Annabi does not apply because the NPA was negotiated and entered into outside of the Second Circuit ..........................25 3. Annabi does not apply to Count Six because that count falls wholly within the timeframe contemplated by the NPA...........................................30 4. There is affirmative indication that the NPA binds the USAO-SDNY..................................................33 5. If it is reasonable to conduct a hearing, then Annabi is a tiebreaker that only applies if ambiguity remains after the hearing ...............................38 Case 22-1426, Document 59, 02/28/2023, 3475902, Page2 of 113 ii D. All counts fall within the scope of the NPA and must be dismissed ....................40 POINT II ALL COUNTS ARE BARRED BY THE STATUTE OF LIMITATIONS.....41 A. Section 3283 Does Not Apply to the Mann Act Violations (Counts Three and Four).........................................43 B. The District Court erred in applying § 3283 retroactively ....................52 1. Congress evinced an intent that § 3283 operate only prospectively...................54 2. The District Court’s application of § 3283 creates “impermissible retroactive effects” without authorization from Congress.............................58 C. Count Six is also barred by the Statute of Limitations.............62 POINT III DEFENDANT WAS DENIED HER CONSTITUTIONAL RIGHT TO A FAIR AND IMPARTIAL JURY BECAUSE A JUROR MADE FALSE STATEMENTS IN VOIR DIRE AS TO MATERIAL FACTS THAT, IF KNOWN, WOULD HAVE PROVIDED A VALID BASIS TO REMOVE HIM FOR CAUSE. U.S. Const. amend. VI......63 A. Introduction....63 B. Applicable Law.........................................................................64 C. Juror No. 50’s False Responses Deprived Ms. Maxwell of her Constitutional Right to a Trial by an Impartial Jury...........................65 1. Juror 50 Did Not Truthfully Answer Material Questions During Voir Dire ...........................................65 D. Under the McDonough Test, Juror 50’s Actual, Implied and Inferred Bias was established.............................................66 1. The McDonough Test: The First Prong..........................66 Case 22-1426, Document 59, 02/28/2023, 3475902, Page3 of 113 iii 2. The McDonough Test: The Second Prong .....................66 E. The District Court Abused its Discretion in the Manner in Which it Conducted the Post-Trial Hearing .........................68 1. The Court Erred in Precluding Defense Counsel From Questioning Juror 50.............................................69 2. FRE 606 Did Not Prevent Inquiry into Juror 50’s Use of Prior Abuse in Persuading Jury to Convict Maxwell ............................................................70 F. The District Court Erred in Finding that (1) Juror 50 was Not Biased and (2) Juror 50 Would Not Have Been Stricken Even if He Had Answered the Questions Accurately ......................71 POINT IV THE COURT CONSTRUCTIVELY AMENDED COUNTS THREE AND FOUR OF THE INDICTMENT.....................73 A. Background Facts...........74 1. The Jury Note .......74 B. Applicable Law.......75 1. The “Core of Criminality” of Counts Three and Four Was a Scheme to Cause Underaged Girls to Travel to New York with an Intent to Violate New York Law............76 2. There is a Substantial Likelihood that Maxwell Was Convicted on Counts Three and Four Based on Conduct Not Charged in the Indictment.......................77 C. The Variance Between the Proof at Trial and the Allegations in the Indictment Substantially Prejudiced Maxwell ....................................................................................81 POINT V THE SENTENCE SHOULD BE VACATED AND REMANDED FOR RESENTENCING AS THE DISTRICT COURT ERRED IN APPLYING AN INCORRECT GUIDELINE RANGE AND OFFENSE LEVEL ...82 Case 22-1426, Document 59, 02/28/2023, 3475902, Page4 of 113 iv A. Standard of Review..........82 B. Procedural Errors ..............83 C. The District Court improperly applied the four-level aggravating role adjustment under USSG § 3B1.1...................84 CONCLUSION..........86

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