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much violence is done to our instinctive feelings of justice and fair 
play. For the state to assure a man that he has become safe from its 
pursuit, and thereafter to withdraw its assurance, seems to most of 
us unfairand dishonest. But, while the chase is on, it does not shock 
us to have it extended beyond the time first set, or, if it does, the 
stake forgives it. 
Falter v. United States, 23 F.2d 420, 425-26 (2d Cir. 1928). The distinction between statutes that 
revive expired prosecutions and those that extend existing limitations periods has deep roots in 
established jurisprudence. It is well-settled that the Ex Post Facto Clause prohibits laws that revive 
time-barred prosecutions, but permits laws that retroactively extend limitations periods. Stogner 
v. California, 539 U.S. 607, 632 (2003) (holding that the Ex Post Facto Clause does not "prevent 
the State from extending time limits for .. . prosecutions not yet time barred."); United States v. 
Morgan, 113 F.3d 1230, 1997 WL 268712, at *7 (2c1Cir. 1997) (unpublished opinion)("The long-
standing rule in this circuit is that Congress has the power to extend the period of limitations 
without running afoul of the ex post facto clause, provided the original period has not already 
run.") (citing Falter, 23 F.3d at 425-26). And other circuits have emphasized this distinction in 
the context of Section 3283. Leo Sure Chief 438 F.3d, at 922-25; Jeffries, 405 F.3d 685. 
Read together, the Second Circuit's decisions in Weingarten, Vernon, Enterprise, and 
Falter establish that Congress may retroactively extend the limitations period for still-viable 
prosecutions. That is precisely what has occurred here, because the charges in the Indictment were 
still timely when the 2003 amendment extended the limitations period. As a result, applying 
Section 3283 in this case does not create impermissible retroactive effects. Therefore, step two of 
Landgrafis satisfied, and Section 3283 applies retroactively. 
Resisting this conclusion, the defendant asserts that, in the criminal context, Landgrafs 
second step provides protections beyond the Ex Post Facto Clause. But that is not the law. See 
Nader, 425 F. Supp. 3d at 630 (rejecting the argument that "there is `daylight' between the Ex Post 
34 
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Facto Clause and Landgraf s second step."). Maxwell cites no precedent for the proposition that, 
in the criminal context, much less in the context of criminal statutes of limitations, Landgraf 
forecloses prosecutions permitted by the Constitution. Maxwell instead cites dictum by a single 
judge in a non-criminal case that, "[i]f [he] were judging on a clean slate," he would read Landgraf 
to prohibit some retroactive application of statutes that, "while not the equivalent of criminal a 
post facto, nevertheless would run afoul of Landgraf s considerations, and that he "expect[ed] 
that the Supreme Court's future decisions" would confirm such a reading. Thorn v. Ashcroft, 369 
F.3d 158, 163 n.6 (2d Cir. 2004) (Calabresi, J., "[s]peaking only for [him]self). That footnote is 
too slender a reed to support Maxwell's entire motion to dismiss the Indictment as untimely. 
Moreover, Maxwell has identified no casein the intervening seventeen years in which the Supreme 
Court has embraced Judge Calabresi's view. See Nader,425 F. Supp. 3d at 631 (finding arguments 
relating to Judge Calabresi's footnote unpersuasive, and concluding that Section 3283 applies 
retroactively under Landgraf). As Weingarten recognized, any court to hold that "retroactively 
extending a filing period for live charges is a presumptively impermissible retroactive effect under 
Landgraf' will be the first to do so. 865 F.3d at 58. 
The defendant also argues that "criminal limitations statutes are to be liberally interpreted 
in favor of repose," relying on the Supreme Court's decision in Toussie v. United States, 397 U.S. 
112, 115 (1970). Toussie considered whether a person's failure to register for the draft was a 
continuing offense subjecting him to prosecution eight years later, notwithstanding the five-year 
limitations period in Section 3282. Id. at 1 14. In that context, the Court invoked a presumption 
in favor of repose when determining whether the underlying conduct was time-barred. But that 
presumption says nothing about whether Congress intended an extension of a statute of limitations 
to apply purely prospectively, a question governed by Landgraf Only one case has applied 
35 
EFTA00100002

Toussie to the Landgraf analysis, see United States v. Gentile, 235 F. Supp. 3d 649, 655 (D.NJ. 
2017), and that case, which did not concern Section 3283, relied extensively on a pre-Landginf 
opinion requiring a clear statement of congressional intent in favor of retroactivity. See id. at 655 
(citing United States v. Richardson, 512 F.2d 105 (3d Cir. 1975)). That clear-statement rule is 
inconsistent with the analysis required by Landgrafstep two. See Nader, 425 F. Supp. 3d at 631 
(rejecting an identical argument relying on Toussie and Gentile). 
0* 
The defendant asks this Court to break new ground and become the first court to hold that 
Section 3283 applies only prospectively. The Court should reject this invitation. For the reasons 
set forth above, the weight of authority holds that Section 3283 applies retroactively, in keeping 
with Congress's express intent to expand prosecutions of individuals who sexually exploit 
children. The Indictment is timely, and the motion should be denied. 
C. 
The Defendant's Crimes Involved the Sexual Abuse of Minors 
The defendant next argues that Section 3283 does not apply at all, and she asks the Court 
to conclude that the crimes of sexual abuse alleged in the Indictment did not involve sexual abuse. 
Her argument runs contrary to both the case law and common sense. Her motion is meritless and 
should be denied. 
By its terms, Section 3283 applies to any "offense involving the sexual or physical abuse, 
or kidnaping, of a child under the age of 18 years." 18 U.S.C. § 3283. As discussed above, when 
the statute was first enacted, it was located at 18 U.S.C. § 3509(k). The definition of the term 
"sexual abuse" is located in a neighboring provision within that same section: 
For purposes of this section .. . the term `sexual abuse' includes the 
employment, use, persuasion, inducement, enticement, or coercion 
of a child to engage in, or assist another person to engage in, sexually 
36 
EFTA00100003

explicit conduct or the rape, molestation, prostitution, or other form 
of sexual exploitation of children, or incest with children. 
18 U.S.C. § 3509(a)(8). The term "sexually explicit conduct" 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 person with an intent to abuse, humiliate, harass, degrade, or amuse 
or gratify sexual desire of any person." Id. § 3509(a)(9)(A). Courts have looked to the definition 
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 definition of `sexual 
abuse' under federal law, and find it the appropriate definition to use in applying section 3283's 
extended statute of limitations."); United States v. Vickers, No. 13 Cr. 128 (MA) (HKS), 2014 WL 
1838255, at *10 (W.D.N.Y. May 8, 2014) (applying the definition of "sexual abuse" set forth in 
Section 3509(a)). 
As is evident from its plain text, the definition of"sexual abuse" set forth in Section 3509(a) 
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 engage in," 
sexual contact. 18 U.S.C. § 3509(a). The breadth of this definition is underscored by Congress's 
use of the word "includes." The Supreme Court has held that Congress's choice of the wont 
"includes" is "significant because it "makes clear that the examples enumerated in the text ate 
intended to be illustrative, not exhaustive." Christopher v. SmithKline Beecham Coup., 567 U.S. 
142, 162 (2012) (citing Burgess v. United States, 552 U.S. 124, 131 n.3 (2008)). Thus, sexual 
abuse "as definedhere encompasses a widerset of behavior than just rape or other unwanted sexual 
touching." United States v. Schneider, 801 F.3d 186, 197 (3d Cir. 2015). In keeping with that 
37 
EFTA00100004

broad definition, courts have held that Section 3283 "does not require that an offense consist of a 
sexual act between a defendant and a specific child," Vickers, 2014 WL 1838255, at *11, but 
instead reaches offenses involving the transportation of minors to engage in illegal sexual activity. 
See Sensi, 2010 WL 2351484, at *2-3 (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 convicted of traveling with the purpose 
of engaging in sex with a minor victim, in violation of 18 U.S.C. § 2423(b)); Vickers, 2014 WL 
1838255, at *11-12 (holding that violations of 18 U.S.C. § 2423(a) were crimes involving sexual 
abuse under Section 3283). 
The defendant's motion does not engage with these authorities at all. Instead, the defendant 
asks the Court to apply an "essential ingredients" test, relying heavily upon the Supreme Court's 
decision in Bridges v. United States, 346 U.S. 209 (1953), which concerned the Wartime 
Suspension of Limitations Act ("WSLA"). (Def. Mot. 2 at 12-14). But Bridges is inapposite, 
since it concerned a statute "[t]he legislative history of [which] emphasize[d] the propriety of its 
conservative interpretation"and "indicate[d] a purpose to suspend the general statute of limitations 
only as to" certain narrowly defined offenses. Bridges, 346 U.S. at 216. There is no corresponding 
indication that Congress intended the "essential ingredients" test to apply to Section 3283. As the 
Third Circuit has explained in rejecting an identical argument: 
While Bridges did adopt an "essential ingredient" test, the 
limitations-extending statute at issue was a narrowly drafted 
exception specifically intended to target frauds related to war 
procurement. Unlike the WSLA, § 3283 has no such restrictive 
language or legislative history suggesting congressional intent to 
limit its application to a specific subset of circumstances. Congress, 
38 
EFTA00100005

rather, has evinced a general intention to "cast a wide net to ensnare 
as many offenses against children as possible." 
Schneider, 801 F.3d at 197 (quoting United States v. Dodge, 597 F.3d 1347, 1355 (11th Cir. 2010) 
(en bane)); see Weingarten, 865 F.3d at 59 n.10 (distinguishing Bridges because the "essential 
ingredient" test there "effectuated Congress's specific intent to limit the WSLA's extended 
limitations period to only a few offenses," while "Congress had the opposite intention for Section 
3283"); see also Vickers, 2014 WL 1838255, at *11-12 ("[T]he defendant argues that the charged 
offense does not "involve" the sexual abuse of a child, as reflected in the elements of the offense. 
Defendant's argument is illogical and clearly misinterprets the use of the term `involving' in 
section 3283."). 
Although the Second Circuit has not yet reached this issue, it examined this question in 
Weingarten v. United States, in the context of a claim for ineffective assistance of counseL 
Weingarten, 865 F.3d at 58-60. Rejecting the claim, the Second Circuit observed that none of the 
criteria for applying the categorical approach are met in the context of Section 3283. Id. The 
categorical approach—which focuses on the elements of the offense-is generally only used in 
settings like sentencing and immigration, where a court is asked to evaluate the conduct from a 
prior conviction. Id. at 59. In such a context, a court attempting to examine the facts of the prior 
conviction to determine the present punishment or immigration consequences would encounter 
logistical and constitutional obstacles. Id. (noting an Apprendi problem and "daunting practical 
difficulties and potential unfairness"). None of those concerns is present here, where the relevant 
facts will be proved at trial. 
The Weingarten court also specifically rejected the argument Maxwell now asserts: that 
the words "offense involving" require a categorical approach. "[T]hat Congress used the wont 
`involving' in § 3283 does not necessarily mean it intended to trigger the categorical approach. 
39 
EFTA00100006

`Involving' . . is equally consistent with applying a fact-based approach." 865 F.3d at 60 n.11 
(citing Nijhawan v. Holder, 557 U.S. 29,38 (2009) (applying the circumstances-specific approach 
to a statute containing the word "involves")). Moreover, as the Weingarten court observed, the 
Supreme Court has applied the categorical approach to statutes containing the word "involving' 
where the statutes at issue also referenced "elements" of offenses, or specific prior "convictions," 
in a manner that referred to specific convictions, as opposed to particular offense conduct. 865 
F.3d at 59 (citing Taylor v. United States, 495 U.S. 575 (1990); Leocal v. Ashcroft, 543 U.S. 1 
(2004)). By contrast, the phrase "sexual abuse" in Section 3283 refers to specific conduct, and not 
the statutory offenses charged in the Indictment. 
In Weingarten, the Second Circuit further noted that applying the categorical approach to 
Section 3283 would run contrary to Congress's intention to "cast a wide net to ensnare as many 
offenses against children as possible." 865 F.3d at 60 (quoting Schneider, 801 F.3d at 196). On 
this point, it bears emphasizing that the interpretation the defendant advances would lead to absurd 
outcomes, as many federal crimes involving the sexual abuse of minors do not contain, as an 
element, a requirement that the defendant commit a sex act with a minor. It would run contrary to 
Congress's intent to interpret Section 3283 in a manner that would exclude many—if not most—
sexual offenses against children. 
The lone Section 3283 case the defendant cites, United States v. Countentos, 651 F.3d 809 
(8th Cir. 2011), is easily distinguishable on its facts. In that case, the Eighth Circuit considered, 
among other issues, whether the crime of possessing child pornography involved sexual abuse 
within the meaning o f Section 3283. Id. at 816-18. In analyzing that question, the court disciKg& 
among a variety of factors, the elements of the crime. But it did not consider the categorical 
approach, or purport to apply an "essential ingredients" test, as the defendant implies. Instead, the 
40 
EFTA00100007

court resolved the issue by answering a common sense question: "Does someone who merely 
possesses child pornography sexually abuse the child portrayed in the images?" Id. at 817. This 
inquiry has no relevance here, as this case does not involve the possession of child pornography. 
The crimes charged in the Indictment plainly involved the sexual abuse of minors. First, 
the Indictment clearly alleges that the minor victims were subjected to actual, physical sexual 
contact as part of the defendant's crimes. See Indictment at 9¶ 4 (alleging that conduct toward 
minor victims involved sexual abuse), 5 (alleging that "Epstein's resulting abuse of minor victims 
included, among other things, touching a victim's breast, touching a victim's genitals, placing a 
sex toy such as a vibrator on a victim's genitals, directing a victim to touch Epstein while he 
masturbated, and directing a victim to touch Epstein's genitals."), 7 (describing patterns of sexual 
abuse). Moreover, the Indictment alleges that the defendant persuaded, induced, enticed, and 
transported minors for purposes of engaging in criminal sexual activity, and that she conspired to 
do the same. As discussed above, the offenses charged in the Indictment accordingly involved the 
sexual abuse of minors as defined in Section 3509(a) and incorporated into Section 3283. 
Because the defendant's crimes involved sexual abuse, the expanded statute of limitations 
set forth in Section 3283 applies to the crimes charged in Counts One through Four of the 
Indictment and her motion should be denied. 
III. 
The Defendant's Motion to Dismiss the Indictment Based on Alleged Improper Pre-
Trial Delay Should Be Denied 
The defendant contends that the Indictment should be dismissed because the Government's 
delay in bringing the charges violates the Due Process Clause of the Fifth Amendment. (Def. Mot 
7). The defendant has not and cannot successfully establish such a violation. First, the defendant 
has not established that any alleged pre-indictment delay caused actual prejudice to the defense. 
Her speculative assertions about lost witnesses and records are hardly the sort of evidence that she 
41 
EFTA00100008

can use to carry her heavy burden. Without proof of actual prejudice, the motion fails. Second, 
even if the Court finds actual prejudice to the defense, the defendant has not established that the 
Government's purpose in any alleged pre-indictment delay was improper or designed to gain any 
sort of tactical advantage. The Government obtained an indictment charging the defendant on 
June 29, 2020, less than two years after opening its investigation and less than a year after victims 
with information critical to the pending charges came forward. The defendant thus cannot 
establish an undue delay, much less a delay caused by the Government for an improper purpose. 
Because the defendant cannot establish either element, let alone both, her due process claim 
is meritless and should be denied. 
A. 
The Defendant Has Failed to Demonstrate Actual and Substantial Prejudice 
1. 
Applicable Law 
It is well-settled that the statute of limitations is "the primary guarantee against bringing 
overly stale criminal charges." United States v. Marion, 404 U.S. 307, 322 (1971) (internal 
quotation marks and citations omitted). Thus, when a case has been brought within the statute of 
limitations, it is "only rarely dismissed," and carries a "strong presumption of validity." United 
States v. Cornielle, 171 F.3d 748, 752 (2d Cir. 1999); see also United States v. Lawson, 683 F2d 
688, 694 (2d Cir. 1982). 
The Second Circuit standard for pre-indictment delay is clear, and it imposes a heavy 
burden on the defendant to show that: (i) "he suffered actual prejudice because of the alleged pre-
indictment delay," and (ii) "that such delay was a course intentionally pursued by the government 
for an improper purpose." Comielle, 171 F.3d at 752 (citations omitted). The burden for proving 
both prongs of the standard rests squarely on the defendant. United States v. Scarpa, 913 F.3d 
993, 1014 (2d Cir. 1990); United States v. Rubin, 609 F.2d 51, 66 (2d Cir. 1979); United States v. 
42 
EFTA00100009

Ricco, 549 F.2d 264, 272 (2d Cir. 1977). The burden is so heavy that it is rarely met by a defendant 
See DeMichele v. Greenburgh Centr. Sch. Dist. No. 7, 167 F.3d 784, 790-91 (2d Cir. 1999) 
("[W]hile the [Supreme] Court may not have shut the door firmly on a contention that at some 
point the Due Process Clause forecloses prosecution of a claim because it is too old, at most the 
door is barely ajar."). 
Substantial prejudice is just that—substantial, actual, non-speculative prejudice. See 
United States v. Birney, 686 F.2d 102, 105-06 (2d Cir. 1982) (a defendant's "proof of prejudice 
must be definite and not speculative"); see also United States v. Henderson, 337 F.3d 914, 920 
(7th Cir. 2003) (prejudice sufficient to warrant dismissal for pre-indictment delay must be "actual 
and substantial" and "specific, concrete, and supported by evidence"). Prejudice in this context 
refers to "actual prejudice to the defendant's right to a fair trial." United States v. Elsbery, 602 
F.2d 1054, 1059 (2d Cir. 1979). The mere loss of witnesses or evidence, without more, is 
insufficient. Claims of loss of memory resulting from the passage of time have been held to be 
insufficient to warrant dismissal of an indictment on due process grounds. See United States v. 
Wright, 343 F.3d 849, 860 (6th Cir. 2003); Henderson, 337 F.3d at 919-20. Moreover, even when 
a claim of prejudice is based upon the complete loss of a witness's testimony or other evidence, a 
defendant nevertheless must show how that testimony or evidence would have affected the 
outcome or otherwise have assisted the case. See United States v. Gilbert, 266 F.3d 1180, 1187 
(9th Cir. 2001) (defendant's pre-indictment delay claim rejected due to failure to show "how the 
testimony from [three absent] witnesses would have benefitted his case"); United States v. Spews, 
159 F.3d 1081, 1085 (7th Cir. 1999) ("[A] defendant must do more than show that a particular 
witness is unavailable and that the witness' testimony would have helped the defense. He must 
also show that the witness would have testified, withstood cross-examination, and that the jury 
43 
EFTA00100010

would have found the witness credible" (citations omitted)). "Courts have held that 'the defendant 
also has the burden of showing that the lost testimony or information was not available through 
other means.'" Pierre-Louis, 2018 WL 4043140, at *4 (quoting United States v. Sprouts, 282 F.3d 
1037, 1041 (8th Cir. 2002)). 
The vast majority of pit-indictment delay cases fail on the first prong. See, e.g., Marion, 
404 U.S. at 324-25 (fading witness memories insufficient; "no one suggests that every delay-
caused detriment to a defendant's case should abort a criminal prosecution"); United States v. 
Snyder, 668 F.2d 686, 689 (2d Cir. 1982) (death of a defense witness three years before indictment 
insufficient prejudice); United States v. lannelli, 461 F.2d 483, 485 (2d Cir. 1972) (unavailability 
of witnesses insufficient prejudice); United States v. King, 560 F.2d 122, 130-31 (2d Cir. 1977) 
(death of witness and missing documents insufficient prejudice); Pierre-Louis, 2018 WL 4043140, 
at *4-5 (death of a defense witness and defendant's own memory issues insufficient prejudice). 
2. 
Discussion 
The defendant points to at least four ways in which she claims the passage of time 
prejudiced her defense, but none of her hypothetical claims of prejudice withstand scrutiny. In 
particular, she contends that, as a result of the passage of time, four witnesses have died, unnamed 
Epstein employees have been "lost," unspecified witnesses now have "failed or corrupted" 
memories, and records have been lost or destroyed. She further contends that these collectively 
demonstrate actual prejudice. (Def. Mot. 7 at 8-14). None has merit, individually or collectively. 
With respect to the first three arguments, the fact that certain witnesses cannot testify 
because of their deaths or failed memories does not compel a finding of actual prejudice. "Faded 
memories or unavailable witnesses are inherent in any delay, even ifjustifiable. To merit dismissal 
a defendant must demonstrate a substantial, actual prejudice to his ability to defend himself." 
44 
EFTA00100011

United States v. Long, 697 F. Supp. 651, 657 (S.D.N.Y. 1988). The defendant has not made such 
a showing. Her speculative assertions simply do not rise to that level. 
The defendant first claims she has suffered substantial prejudice as a result of pre-
indictment delay due to the unavailability o fJeffrey Epstein, Epstein 's mother, Michael Casey (the 
alleged agent of Minor Victim-1), and Palm Beach Police Department Detective Joseph Recarey. 
She contends that the loss of Epstein demonstrates actual prejudice because Epstein "would have" 
testified that the defendant did not engage in the criminal activity with which she is charged. (Def. 
Mot. 7 at 8). That assertion is speculative at best, and the law is clear that "proof of prejudice must 
be definite and not speculative." Birney, 686 F.2d at 105-06; see also Long, 697 F. Supp. at 657 
(finding that "perceived prejudice is speculative" where there was "no way of knowing what [the 
unavailable witness's] testimony would have been"). To credit Maxwell's argument is to assume 
that Epstein, after being indicted with federal sex trafficking charges, would have taken the stand, 
would not have invoked his Fifth Amendment rights, and would have provided testimony that 
exculpated Maxwell, which a jury would have credited in the face of contradictory trial evidence. 
This is an exercise in chain upon chain of conjecture that comes nowhere close to meeting the 
burden of demonstrating actual prejudice. See Spears, 159 F.3d at 1085 ("[A] defendant must do 
more than show that a particular witness is unavailable and that the witness' testimony would have 
helped the defense. He must also show that the witness would have testified, withstood cross-
examination, and that the jury would have found the witness credible." (citations omitted)); see 
also United States v. Valona, 834 F.2d 1334, 1339 (7th Cir. 1987) (noting that prejudice analysis 
must consider whether the missing witness "would have withstood cross-examination," whether 
the jury would have found him a "credible witness," and whether the testimony, when compared 
to other trial evidence "would affect the trial outcome" (internal quotation marks and citations 
45 
EFTA00100012

omitted)). The defendant has not and cannot establish that Epstein would have been available to 
testify in the first instance, much less that he would have voluntarily agreed to testify at her trial 
in a way that would help, rather than hurt, the defendant. 
As to Epstein's mother, who died in April 2004, the defendant contends that she "would 
have testified that she did not observe Ms. Maxwell with any Accusers between 1994 and 1997." 
(Def. Mot. 7 at 9). "Counsel's unswom assertions as to vague generalities" that witnesses, "if 
alive, would give testimony helpful to [the defendant] do not show that [the defendant's] ability to 
present a defense has been substantially and actually prejudiced." United States v. Scala, 388 F. 
Supp. 2d 396, 399-400 (S.D.N.Y. 2005). Here, "there is no evidence before the Court as to what 
[the deceased witness] would have testified, much less specific evidence of how losing that 
testimony has caused [the defendant] actual prejudice." Id. at 400. Further, unless Epstein's 
mother was with the defendant "every moment" between 1994 and 1997, "it would be impossible 
for [her] to testify that [the] defendant did not commit the charged crimes, so whatever helpful 
testimony [she] might have offered (the details of which are sparse in the motion) would be easily 
undermined on cross-examination." Pierre-Louis, 2018 WL 4043140, at *4 (citing Spears, 159 
F.3d at 1081-1085). Moreover, Epstein's mother died "sufficiently prior to `any realistic trial 
date,' to make it improbable that any prejudice it may have caused [the defendant] was the result 
of government delay." United States v. Cheung Kin Ping, 555 F.2d 1069, 1073 (2d Cir. 1977) 
(quoting United States v. Stein, 456 F.2d 844,848 (2d Cir. 1972)). Indeed, Epstein's mother passed 
away before the Palm Beach Police Department even began investigating Epstein in 2005. (Def. 
Mot. 7, Ex. D at i). 
The defendant's claims relating to Michael Casey and Detective Recarey fare no better. 
She again speculates that Casey and Detective Recarey, who passed away in August 2017 and May 
46 
EFTA00100013

2018 respectively, would have testified, and that such testimony would have been exculpatory and 
would have materially helped the defense. (Def. Mot. 7 at 9-11). The defendant cannot establish 
that Casey and Detective Recarey would have testified in a way that would help, rather than hurt, 
the defendant. 
In particular, the defendant contends that Michael Casey, the purported agent of Minor 
Victim-1, "would be able to testify" about Minor Victim-l's behavior during the "relevant time 
period" and the "lack of any `outcry' or 'grooming.'" (Id. at 10). The defense suggests that Casey 
not having related any complaints about Maxwell to "any authority, Ms. Maxwell, or any other 
known witness" means that he knew of no complaints. (Id. at 9-10). As an initial matter, "these 
is no evidence before the Court as to what [Casey] would have testified." Scala, 388 F. Supp. 2d 
at 400. Even assuming that Casey would have testified as the defendant now contends, such 
testimony (which would be purely speculative and unsubstantiated) would also have no bearing 
on whether the abuse, in fact, occurred. 
The defendant argues that Detective Recarey would have testified that none of the 
witnesses with whom he spoke in connection with a prior investigation told him about the 
defendant participating in sex trafficking activities. (Def. Mot. 7 at 10-11). As a threshold matter, 
the defendant has not established how such testimony, which would consist entirely of hearsay, 
could even be admissible at the defendant's trial. Moreover, the fact that Epstein may have abused 
victims without the defendant's participation is not exculpatory as to charges alleging the 
defendant assisted in the grooming and abuse of other victims. The well-established law of this 
Circuit generally precludes a defendant from offering evidence that a defendant did not participate 
in criminal conduct on a particular occasion—or of her law-abiding conduct during uncharged 
periods or uncharged events—to rebut the Government's evidence with respect to the charged 
47 
EFTA00100014

crimes or events. See, e.g., United States v. Scarpa, 897 F.2d 63, 70 (2d Cir. 1990) ("A defendant 
may not seek to establish h[er] innocence .. . through proof of the absence of criminal acts on 
specific occasions."); United States v. Chambers, 800 F. App'x 43, 46 (2d Cir. 2020) ("A single 
occurrence of lawful conduct is `simply irrelevant' to other occurrences of lawful conduct" 
(quoting United States v. Walker, 191 F.3d 326, 336 (2d Cir. 1999)); United States v. Williams, 
205 F.3d 23, 34 (2d Cir. 2000) ("We reject Williams's assertion that the evidence of innocent 
travel was necessary to rebut the government's allegation that Williams had been involved in other 
cocaine importations from Jamaica. Although the government did argue that Williams had been 
involved in other importations, it did not allege that Williams had engaged in drug activity during 
these particular trips."); United States v. Fiumano, No. 14 Cr. 518 (JFK), 2016 WL 1629356, at 
*7 (S.D.N.Y. Apr. 25, 2016) ("The principle is rather elementary. A defendant charged with 
robbing a bank in Manhattan on April 22 cannot offer as evidence to disprove the charged crime 
that he did not rob the bank's branches in Brooklyn or the Bronx on April 22 or that he did not rob 
the Manhattan branch on April 20, 21, 23, and 24, because this evidence is irrelevant to the champ 
that he robbed the Manhattan bank on April 22."); United States v. Gambino, 838 F. Supp. 744, 
748 (S.D.N.Y. 1993). 
Inadmissibility aside, the Indictment specifically charges conduct between 1994 and 1997. 
That a different investigative team focused on Epstein's conduct in the early 2000s may not have 
uncovered evidence about the defendant's conduct in the 1990s has no bearing on the charges in 
this case, which was brought entirely independent of the prior SDFL investigation. Moreover, and 
as detailed further below, two of the victims referenced in the Indictment, Minor Victim-1 and 
Minor Victim-3, were never interviewed by the USAO-SDFL, and had never spoken to law 
enforcement until they met with this Office in late August and September 2019, after Epstein's 
48 
EFTA00100015

death." As such, it is neither surprising nor terribly probative of any issue in dispute in this case 
that Detective Recarey might have testified to a lack of knowledge as to what the victims identified 
in this Indictment have told the USAO-SDNY. In sum, the defendant has not put "specific 
evidence" before this Court demonstrating that the loss of Detective Recarey's testimony, even if 
admissible, has caused her actual prejudice. Scala, 388 F. Supp. 2d at 400. 
The defendant next contends that had the Government brought the charges earlier, she 
would have interviewed and subpoenaed as witnesses "the many Epstein employees that were 
present at the different locations during that three-year period." (Def. Mot. 7 at 11). She does not 
specify which employees she would have called as witnesses, the grounds for contending they are 
"lost" or "missing," whether they would have been willing to testify, or what admissible evidence 
they would have provided. She merely speculates that the evidence could have helpedherdefense. 
This is far from the definite proof of prejudice required to state a due process claim. See United 
States v. Greer, 956 F. Supp. 525,528 (D. Vt. 1997) ("In the context of unavailable witnesses, the 
defendant must offer some grounds for his belief that the absent witness would have helped his 
case in a material way." (internal quotation marks and citation omitted)). 
The defendant also argues that "[m]any potential witnesses have been contacted in relation 
to this matter and other related litigations," noting that "[s]ignificant numbers of potential 
witnesses no longer remember when events may have occurred" or"who was present." (Def. Mot 
7 at 12). Dimming or fading memories over the passage of time are not in themselves sufficient 
to "demonstrate that [defendants] cannot receive a fair trial" or "justify the dismissal of the 
indictment." Marion, 404 U.S. at 326; Elsbeiy, 602 F.2d at 1059. Indeed, the fact that the defense 
described the witnesses as "potential witnesses" suggests that she might still call them. Further, 
17 The third victim, Minor Victim-2, was interviewed previously by the FBI. The Government is 
not aware of Detective Recarey having participated in an interview of Minor Victim-2. 
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to the extent the passage of time affects the memories of witnesses who testify at trial, the 
defendant will have an opportunity to cross-examine such witnesses. See United States v. 
Harrison, 764 F. Supp. 29, 32 (S.D.N.Y. 1991) (noting that "the passage of time does affect 
witnesses' memories and it may be relevant to the credibility of their testimony" and that the 
Government also faces potential harms from the passage of time).18 Accordingly, the defendant's 
bald assertions regarding diminished memories of potential witnesses are speculative and, thus, 
fall short of the proof of actual prejudice required by the Supreme Court's standard in Marion. 
The defendant also claims that because of the delay in the prosecution, she does not have 
access to certain exculpatory documentary evidence. (Def. Mot. 7 at 12-14). Once again, this 
argument is entirely speculative. The defendant hypothesizes that if she had access to certain 
documentary evidence (some of which, such as travel records, has been produced in discovery), 
or evidence which she herself should have access to (e.g., her own emails from 1994 to 1997, her 
own phone records from 1994 to 1997, and her own travel records from 1994 to 1997), this 
evidence would have helped her. She offers no proof or basis for concluding that the records 
would be helpful. Even if such records were helpful, dismissal of the Indictment would be too 
extreme a measure in light of the relative significance of this form of evidence to other proof in 
the case. Thus, the defendant's claim that she no longer has access to certain evidence is not a 
proper basis to dismiss the Indictment. See United States v. Dornau, 356 F. Supp. 1091, 1094 
(S.D.N.Y. 1973) ("A bare allegation that records have been lost or destroyed, which might relate 
IS The Government notes that it faces the same potential harms from the passage of time as does 
any party, including loss of witnesses through death or disappearance, diminishment of memories 
over the passage of time, and loss of evidence. The Government, of course, bears the burden of 
proof at trial, and as such, prosecutors have every incentive to bring cases as promptly as possible, 
when memories are fresh and when it is possible to identify corroborating witnesses and records. 
Any suggestion that the Government delayed bringing the instant case for over two decades for its 
own benefit or a tactical advantage borders on the absurd. 
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to the instant prosecution, is insufficient to show actual prejudice.... The fact that evidence may 
be lost or destroyed during the pre-indictment stage is inherent in any delay, no matter what the 
duration. Furthermore, there has been no allegation in this case that the destruction of the records 
was deliberate on the part of either the government or trustee." (internal citations omitted)). 
Lastly, the defendant contends that prejudicial media reporting and inappropriate pre-trial 
publicity from at least 2011 through the present has resulted in prejudice to the defendant. (Def. 
Mot. at 14). She claims that had the Government brought charges against her between 19% and 
2011, the Government "would have not prevailed," noting that the defendant's accusers would not 
have been "able to conform their 'memories' to the often republished `obvious lies.'" (Id. at 15). 
This argument, like the others contained in this motion, is steeped in speculation. The defendant 
cites not one case in support of her argument that pre-trial publicity can ever establish actual 
prejudice, nor does she point to any evidence that the Government fomented such publicity dating 
back to 2011. To the extent the defendant is concerned about pretrial publicity, she will have the 
opportunity to propose an appropriate examination of potential jurors during voir dire to identify 
a panel of impartial jurors who have not been prejudiced by any publicity this case may have 
garnered. 
In short, the defendant's complaints are nothing more than the type of self-serving, vague, 
speculative, and conclusory claims of prejudice that courts have consistently rejected as 
insufficient to warrant dismissal of charges based upon pre-ind iennent de lay.19 The motion should 
therefore be denied. 
19 The defendant also complains about the Government's failure to "provide discovery adequate 
to fully investigate the extent of the prejudice to Ms. Maxwell." (Def. Mot. 7 at 7). Among the 
items the defense complains about not receiving in discovery are the names and dates of birth of 
the Minor Victims, the specific location of any overt act, the date of any overt act, any witness 
statements, or any corroboration of any allegation in the Indictment. (Id.). As described herein, 
see Section X, infra, the Government has made substantial discovery productions pursuant to Rule 
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B. 
The Defendant Has Failed to Establish That the Government Delayed the 
Indictment for An Improper Purpose 
1. 
Applicable Law 
If, and only if, a defendant has established significant, actual prejudice does the inquiry 
turn to the reason for the delay.2° See, e.g., Pierre-Louis, 2018 WL 4043140, at *5 ("Because 
Defendant failed to show prejudice, the Court need not even address the second prong."). The 
reason for delay violates due process only if it is so extreme that it departs from fundamental 
notions of "fair play."' United States v. Lovasco, 431 U.S. 783, 795 (1977). The Supreme Court 
has "defined the category of infractions that violate 'fundamental fairness' very narrowly," 
Dowling v. United States, 493 U.S. 342, 352 (1990), and the Supreme Court has "stressed the 
importance for constitutional purposes of good or bad faith on the part of the Government when 
the claim is based on loss of evidence attributable to the Government,"Arizona v. Youngblood, 
488 U.S. 51, 57 (1988). 
16 of the Federal Rules of Criminal Procedure, which provides ample information about the 
charged crimes and the victims referenced in the Indictment. Additionally, many of the 
defendant's requests fall within the scope of the Government's Giglio and Jencks Act obligations, 
which the Government intends to produce at the appropriate stage in the litigation, well in advance 
of trial. 
20 The defendant invites the Court to engage in a balancing test that weighs the prejudice to the 
defendant against the Government's reasons for delay. (Del Mot. 7 at 5,6 n.4). This Court should 
reject the defendant's invitation. The defendant cites United States v. Brand, 556 F.2d 1312, 1317 
n.7 (5th Cir. 1977), for the proposition that a showing of prejudice triggers such balancing. (Def. 
Mot. 7 at 5). However, the Fifth Circuit subsequently rejected such a balancing test, finding that 
the "Brand footnote is pure dicta" and instead requiring that defendants demonstrate that the 
prosecution intentionally caused the delay to gain a tactical advantage over the defendant or "for 
some other bad faith purpose." United States v. Crouch, 84 F.3 d 1497, 1509, 1512 (5th Cir. 1996). 
The defendant also cites that several Circuit courts, namely the Fourth, Seventh, and Ninth 
Circuits, require such a balancing test. (Def. Mot. 7 at 6 n.4). The Second Circuit, however, "has 
not adopted any balancing test, as the Fourth, Seventh and Ninth Circuits have, and its 
jurisprudence suggests that it would not do so." United States v. Santiago, 987 F. Supp. 2d 465, 
490 (S.D.N.Y. 2013). Several other Circuits have also "refused to adopt a balancing test." Id. 
(collecting cases). This Court should follow that example. 
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The Second Circuit has clearly held that a defendant seeking the dismissal of an indictment 
filed within the statute of limitations must establish that the Government acted intentionally, 
deliberately, or with some strategy, and that the Government used that delay to gain a tactical 
advantage over the defendant. See, e.g., Cornielle, 171 F.3d at 752 (delay must be "intentional 
device to gain [a] tactical advantage over the accused"); see also United States v. Alameh, 341 
F.3d 167, 176 (2d Cir. 2003) ("To show unjustifiable conduct, a defendant must demonstrate that 
the government has intentionally used delay to gain unfair tactical advantage."); see also United 
States v. Delacruz, 970 F. Supp. 2d 199, 203 (S.D.N.Y. 2013) ("Delacruz's motion to dismiss 
would nevertheless fail for the independent reason that he has not made any showing that the 
preindictment delay was an intentional device designed by the Government to gain a tactical 
advantage."); United States v. Martinez, No. 94 Cr. 219 (RPP), 1995 WL 10849, at *4 (S.D.N.Y. 
Jan. 12, 1995) ("In order to establish improper delay by the Government in filing an indictment, a 
defendant must show that the delay was the result of an intentional device of the Government to 
gain tactical advantage over the accused." (internal quotation marks and alterations omitted) (citing 
United States v. Hoo, 825 F.2d 667, 671 (2d Cir. 1987))). Indeed, some version of the phrase 
"deliberate device" and "tactical advantage" is found in nearly every Second Circuit decision on 
the issue. See, e.g., Alameh, 341 F.3d at 176 ("intentionally used delay to gain unfair tactical 
advantage"); Cornielle, 171 F.3d at 752 (requiring "intentional device" to gain "tactical 
advantage"); Lawson, 683 F.2d at 694 (delay not "engineered by the government for an improper 
purpose, such as gaining a tactical advantage"); Snyder, 668 F.2d at 689; United States v. Watson, 
599 F.2d 1149, 1157 n.5 (2d Cir. 1979); United States v. Tanu, 589 F.2d 82, 89 (2d Cir. 1978); 
United States v. Laurenti, 581 F.2d 37, 40 n.11 (2d Cir. 1978); United States v. Hillegas,578 F2d 
453, 460 (2d Cir. 1978). 
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