EFTA02731168

EFTA02731168 is a 32-page prosecution memorandum, Bates-stamped EFTA_00022689 through EFTA_00022720 in Data Set 12, prepared by the United States Attorney’s Office for the Southern District of New York and dated April 10, 2020. It is headed “Privileged and Confidential — Attorney Work Product” and “Do Not Disseminate Outside of the SDNY USAO,” and its case-caption box, printed before any docket number had been assigned, reads “United States v. Maxwell, 20 Cr. ___ ( ).”¹ The memorandum states that it “seeks authorization to charge GHISLAINE MAXWELL” with two federal offences.¹ Several of its later sections — most of its case-specific legal analysis among them — are blacked out in the production, in some instances down to the last word of the heading; those sections are described below, and, so far as this page can establish, none of them withholds any victim’s identity. One further section, also described below, is redacted too heavily after its opening for this page to characterize the same way. This page describes the charging decision the document records and the redactions that surround it. It does not describe, and takes nothing from, the memorandum’s “Victim Interviews and Corroborating Evidence” section (pp. 1-13, the narrative continuing about two-thirds of the way down the last of those pages before the legal analysis of Section II begins), which consists of first-person accounts from three women whose names, and other identifying details, are blacked out throughout.² This memorandum is one of the documents described on the Epstein investigations overview.

The charges sought

The memorandum proposes two counts, both charged as conspiracies under 18 U.S.C. § 371 rather than as the underlying substantive offences: “one count of conspiracy to violate 18 U.S.C. § 2423(a), which prohibits the transportation of a minor for illegal sexual activity, and one count of conspiracy to violate 18 U.S.C. § 2422, which prohibits the enticement of a minor to travel to engage in illegal sexual activity.”¹ Section II, “Proposed Charges, Elements of the Offenses, and Venue,” repeats the same two counts and adds that “Count One carries a statutory maximum penalty of five years’ imprisonment, with no mandatory minimum. Count Two carries a statutory maximum penalty of five years’ imprisonment, with no mandatory minimum,” and that “[b]oth conspiracies would cover the time period 1994 to 1997.”³⁴ Its elements table lists, for each count, the same three elements of a § 371 conspiracy — an unlawful agreement, knowing and wilful membership in it, and an overt act — and gives a single line for venue: “Some of the conduct occurred at Epstein’s Manhattan residence.”⁴

For the object offence of Count One, the memorandum quotes the Second Circuit’s statement of what a conviction under § 2423(a) requires: proof “that the defendant: (1) knowingly transported a minor across state lines and (2) with the intent that the minor engage in sexual activity for which some person could be criminally charged,” citing United States v. Vargas-Cordon, 733 F.3d 366, 375 (2d Cir. 2013).⁵ It then works through that offence element by element under the subheadings “Transportation,” “Knowledge of Age,” “Intent Requirement,” and “Unlawful Sexual Activity,” and quotes the text of § 2422 in full for Count Two, with a footnote explaining that the provision “did not contain subdivisions” until 1996, when § 2422(b) was added.⁵⁶ In a section headed “Application,” the memorandum states its own assessment that “we believe that [REDACTED] testimony — corroborated by additional witness testimony and limited documentary evidence — would establish that Maxwell entered into a conspiracy with Epstein” to commit the two object offences.⁷

What the redactions withhold

Each of the four element subheadings under § 2423(a) follows the same pattern: a sentence or two of general legal proposition, unredacted, followed by the memorandum’s application of that proposition to its evidence, blacked out. “Transportation” and “Knowledge of Age” each lose most of a paragraph this way; “Unlawful Sexual Activity” loses all of it — the heading is the only visible text on a page and a half.⁵⁸ The two pages that follow carry no legible text at all.⁹

A further section, headed “Application,” follows directly after this element-by-element discussion; its opening assessment is quoted above.⁷ The section continues, through the rest of that page and into the next, with visible text alternating with redaction, before the redaction becomes continuous for the remainder of the section, up to the point the following heading, “Statute of Limitations,” begins partway down p. 21.¹⁰ Because its visible portion is not confined to the office’s own framing of its legal theory, in the way the sections below are, this page draws no conclusion, either way, about what its redacted portion contains.

The same pattern of visible framing giving way to redaction recurs, at greater length, in the three later sections that the desk’s brief specifically asked this page to describe — and for these three, unlike “Application,” the visible framing does support a conclusion about what the redacted portion is. The memorandum’s general account of the statute-of-limitations framework — that the version of 18 U.S.C. § 3283 in effect in 1994 ran “until ‘the child reaches the age of 25,’” and that an April 2003 amendment extended it to permit prosecution “at any time during the lifetime of the minor victim” — is unredacted.¹¹ But the two subsections that apply that framework to this case, headed “Application of the Statute of Limitations in This Case” and “Application of Section 3283 to the Proposed Charges,” are blacked out in their entirety; only the headings are visible.¹² Part III, “Anticipated Defenses,” is divided into “Factual Arguments” and “Legal Defenses,” and both are redacted from their opening word.¹³ Part VI, “Charges Not Applicable Or Not Currently Recommended,” and Part VII, “Recommendation,” are redacted the same way across four pages combined, again down to the heading.¹⁴¹⁵ None of the withheld material in those three sections concerns any victim’s identity: it is the office’s own legal reasoning, about its own case, that the production does not show. What is visible in them is the frame the memorandum builds around that reasoning — the elements it says it must prove, the statute-of-limitations rule it says applies, the fact that it anticipated defenses and weighed charges it chose not to bring — without the content of any of it.

Discovery, victims and the plan to arrest

Part IV, “Cooperating Defendants,” is one line: “None currently and none expected.”¹⁶ Part V, “Discovery Issues,” is unredacted and describes friction with the FBI: the office states it has reviewed the district’s discovery policy and believes it can meet its obligations, “[t]hat assumes, however, that the FBI adequately processes and provides us with materials gathered through numerous search warrants of Epstein’s properties and residences,” and that “[t]o date, we have not received most of the materials seized in July and August of 2019, which comprise many terabytes of data.” It adds: “we require significant assistance from the FBI that to date has not been forthcoming.”¹⁶ It flags two further sets of historical files — from the Department of Justice’s FOIA office and from the FBI’s Florida office — that will also require review, and it anticipates redacting “victim identifying information” from what it discloses.¹⁶¹⁴

Part VIII states that the office expects to seek restitution under the Victims of Trafficking and Violence Protection Act of 2000.² Part IX answers “No” to whether the conduct involves fraud on a federally funded program or insured institution.² Part X, “Victim Issues,” states: “Does the case involve victims? Yes. The case involves at least three victim-witnesses,” and that all of them had, by the memorandum’s date, been entered into the FBI’s Victim Notification System.² Part XI records that “[t]he defendant has not yet been indicted.”² Part XII, “Plans for Arrest,” states that the office “expect[s] to arrest the defendant following the filing of the proposed indictment,” with the plan to “vary depending on Maxwell’s location when the FBI is prepared to make an arrest.”¹⁷ The memorandum is signed “/s/” above a redacted block and the printed line “Assistant United States Attorneys”; the signers’ names are not visible in this production.¹⁷

Compared with the indictment actually returned

A grand jury in the Southern District of New York returned a six-count indictment against Maxwell on June 29, 2020, seven weeks after this memorandum’s date; a corrected superseding indictment followed on July 8, 2020, and Maxwell was arraigned and pleaded not guilty on July 14, 2020.¹⁸ A later prosecution memorandum from the same office, dated March 14, 2021 and proposing further charges, describes that original indictment as containing “one count of conspiracy to transport a minor for illegal sexual activity, in violation of 18 U.S.C. § 371; one count of transporting a minor, in violation of 18 U.S.C. § 2423(a); one count of conspiracy to entice a minor to travel to engage in illegal sexual activity, in violation of 18 U.S.C. § 371; one count of enticing a minor to travel, in violation of 18 U.S.C. § 2422; and two counts of perjury, in violation of 18 U.S.C. § 1623,” and states that “[t]he evidence supporting those charges and the legal issues surrounding those charges were discussed at length in previous prosecution memos dated April 10, 2020 and April 28, 2020.”¹⁹ EFTA02731168 is the first of those two memos; the second, of April 28, 2020, is not part of this commission and has not been located or read for this page — it is a lead for the desk. The two conspiracy counts EFTA02731168 proposed became, essentially unchanged, the indictment’s Counts One and Three (charged period 1994 to 1997 in both instruments).⁴¹⁹ What the grand jury added beyond this memorandum’s request were the two corresponding substantive counts — transportation itself and enticement itself, not merely conspiracy to commit them — and two counts of perjury arising from Maxwell’s 2016 civil deposition testimony, a subject this memorandum does not mention.¹⁹

The charges continued to grow after the original indictment. A March 29, 2021 second superseding indictment extended the conspiracies charged in Counts One and Three from 1997 to 2004 and added two entirely new counts, both keyed to a fourth victim: a conspiracy count, charged like the others under the general conspiracy statute, 18 U.S.C. § 371, and a substantive count of sex trafficking of a minor under 18 U.S.C. § 1591; neither had appeared in either April 2020 memorandum or the original indictment.²⁰²¹ A district court order describes the change directly: “The new indictment alleges that the conspiracies charged in Counts 1 and 3 extended to 2004 (the S1 charged through 1997) and identifies a fourth alleged victim, Minor Victim-4,” which the order says “also adds two new charges” beyond the original six.²⁰ Maxwell was convicted at trial in December 2021 on five of the resulting eight counts and sentenced in June 2022 to 240 months; the full course of the prosecution from indictment through sentencing, appeal and collateral challenge is set out on this wiki’s page on Maxwell, which this page does not duplicate.²²

Cited in

Ghislaine Maxwell.

Footnotes

1. EFTA02731168, p. 1 of 32 (header, case caption, “United States v. Maxwell, 20 Cr. ___ ( )”; “This memorandum seeks authorization to charge GHISLAINE MAXWELL with one count of conspiracy to violate 18 U.S.C. § 2423(a), which prohibits the transportation of a minor for illegal sexual activity, and one count of conspiracy to violate 18 U.S.C. § 2422, which prohibits the enticement of a minor to travel to engage in illegal sexual activity.”). https://epstein-data.com/EFTA02731168 ↩ ↩² ↩³

2. EFTA02731168, p. 31 of 32 (“VIII. Forfeiture / Restitution”; “IX. Coordinated Proceedings,” answer “No”; “X. Victim Issues,” “Does the case involve victims? Yes. The case involves at least three victim-witnesses.”; “XI. Speedy Trial Act Calculations & Deadline,” “The defendant has not yet been indicted.”). https://epstein-data.com/EFTA02731168 ↩ ↩² ↩³ ↩⁴ ↩⁵

3. EFTA02731168, p. 13 of 32 (“We propose to charge Maxwell with one count of conspiring to violate 18 U.S.C. § 2423(a) (transporting minors with intent to engage in criminal sexual activity), in violation of 18 U.S.C. § 371, and one count of conspiring to violate 18 U.S.C. § 2422 (enticing a minor to travel to engage in illegal sexual activity), in violation of 18 U.S.C. § 371.”). https://epstein-data.com/EFTA02731168 ↩

4. EFTA02731168, p. 14 of 32 (penalties, “Both conspiracies would cover the time period 1994 to 1997,” elements table, venue). https://epstein-data.com/EFTA02731168 ↩ ↩² ↩³

5. EFTA02731168, p. 15 of 32 (Vargas-Cordon citation; “Transportation,” “Knowledge of Age” and “Intent Requirement” subheadings, each redacted after its opening general statement). https://epstein-data.com/EFTA02731168 ↩ ↩² ↩³

6. EFTA02731168, p. 19 of 32 (text of 18 U.S.C. § 2422; n.19, “This provision is now located at 18 U.S.C. § 2422(a), but during the relevant time period, this provision did not contain subdivisions, as § 2422(b) (enticement of minors through facilities of interstate commerce) did not exist until 1996.”). https://epstein-data.com/EFTA02731168 ↩

7. EFTA02731168, p. 20 of 32 (“Application” heading; “we believe that [testimony] — corroborated by additional witness testimony and limited documentary evidence — would establish that Maxwell entered into a conspiracy with Epstein”; read from the page image, victim identifiers redacted in the original). https://epstein-data.com/EFTA02731168 ↩ ↩²

8. EFTA02731168, p. 16 of 32 (“Unlawful Sexual Activity” subheading; page otherwise redacted). https://epstein-data.com/EFTA02731168 ↩

9. EFTA02731168, pp. 17-18 of 32 (no legible text; read from the page images). https://epstein-data.com/EFTA02731168 ↩

10. EFTA02731168, pp. 20-21 of 32 (extent only, read from the page images: visible text and redaction alternate through the remainder of p. 20; the redaction is then continuous from the top of p. 21 until the “Statute of Limitations” heading, which appears roughly two-fifths of the way down that page). https://epstein-data.com/EFTA02731168 ↩

11. EFTA02731168, pp. 21-22 of 32 (“In 1994, the statute of limitations in effect for sexual offenses against children ran until ‘the child reaches the age of 25.’”; “in April 2003, Section 3283 was revised to permit the prosecution of sex offenses against minors at any time during the lifetime of the minor victim.”; n.20, noting a further, inapplicable 2006 revision). https://epstein-data.com/EFTA02731168 ↩

12. EFTA02731168, p. 23 of 32 (“Application of the Statute of Limitations in This Case” and “Application of Section 3283 to the Proposed Charges” headings; both subsections otherwise fully redacted). https://epstein-data.com/EFTA02731168 ↩

13. EFTA02731168, pp. 24-25 of 32 (“III. Anticipated Defenses,” “Factual Arguments” and “Legal Defenses” headings; both subsections fully redacted). https://epstein-data.com/EFTA02731168 ↩

14. EFTA02731168, p. 27 of 32 (redaction of “victim identifying information” anticipated; “VI. Charges Not Applicable Or Not Currently Recommended” heading, otherwise redacted). https://epstein-data.com/EFTA02731168 ↩ ↩²

15. EFTA02731168, pp. 28-30 of 32 (continuation of Part VI and “VII. Recommendation,” fully redacted; only the Part VII heading is visible, on p. 30). https://epstein-data.com/EFTA02731168 ↩

16. EFTA02731168, p. 26 of 32 (“IV. Cooperating Defendants” / “None currently and none expected.”; “V. Discovery Issues,” quoted). https://epstein-data.com/EFTA02731168 ↩ ↩² ↩³

17. EFTA02731168, p. 32 of 32 (“XII. Plans for Arrest,” quoted; signature block, signer redacted). https://epstein-data.com/EFTA02731168 ↩ ↩²

18. As set out, with its own citations, on this wiki’s page on Ghislaine Maxwell: grand jury indictment returned June 29, 2020; corrected superseding indictment July 8, 2020; arraignment and not-guilty plea July 14, 2020. ↩

19. EFTA02731226, “United States v. Maxwell, S2 20 Cr. 330 (AJN),” Prosecution Memorandum dated March 14, 2021, p. 1 of 28 (“Our Office previously obtained a six-count Indictment charging Maxwell with one count of conspiracy to transport a minor for illegal sexual activity, in violation of 18 U.S.C. § 371; one count of transporting a minor, in violation of 18 U.S.C. § 2423(a); one count of conspiracy to entice a minor to travel to engage in illegal sexual activity, in violation of 18 U.S.C. § 371; one count of enticing a minor to travel, in violation of 18 U.S.C. § 2422; and two counts of perjury, in violation of 18 U.S.C. § 1623.”; “The evidence supporting those charges and the legal issues surrounding those charges were discussed at length in previous prosecution memos dated April 10, 2020 and April 28, 2020.”). https://epstein-data.com/EFTA02731226 ↩ ↩² ↩³

20. Order, United States v. Maxwell, No. 1:20-cr-00330-AJN, Document 221, filed April 20, 2021, p. 1 of 5 (“The Government filed an S2 Superseding Indictment on March 29, 2021.”; “The new indictment alleges that the conspiracies charged in Counts 1 and 3 extended to 2004 (the S1 charged through 1997) and identifies a fourth alleged victim, Minor Victim-4.”; “also adds two new charges”; digit confirmed against the page image at 600 dpi). https://epstein-data.com/EFTA00032766 ↩ ↩²

21. EFTA02731226, p. 2 of 28 (proposed S2 charges: Count One and Count Three extending the conspiracies to 2004; “Count Five: Conspiracy to Commit Sex Trafficking from 2001 to 2004, in violation of 18 U.S.C. § 371. This charge would be entirely new and would exclusively reference Minor Vicitm-4.” [as printed]; “Count Six: Sex Trafficking of a Minor from 2001 to 2004, in violation of 18 U.S.C. § 1591. This charge would be entirely new and would exclusively reference Minor Victim-4.”). https://epstein-data.com/EFTA02731226 ↩

22. Ghislaine Maxwell, “The criminal case” section, with its own citations to the conviction, sentencing, appeal and collateral proceedings. ↩