2 Points: It give credibility to Virginia Roberts, and to her 2016 Defamation suit against Maxwell. It was filed well before Maxwell defamed her, and thus Roberts case is not just about trying to get some money.
Point 2: The FBI had the smoking gun, and effing ignored Virginia Roberts.
Here is a massive OCR's PDF (searchable) containing 156 of the available documents.
https://app.box.com/s/a3mq8bz37lg0w6xqinzkv22hsiyp2yvm
And here are some of the original "electronically" redacted documents
https://app.box.com/s/bd3097c062ibv4ia8bat2lie5w8waxzy
https://app.box.com/s/n39uz8gqhb1aa56oop5fu7oulebiwbzo
https://app.box.com/s/v90w2evk3nbcqd9y83pt8e7gj3jhkgxb
https://app.box.com/s/k15ef3boueirpvycuqgnk4hfy795zqmr
https://app.box.com/s/7vzmqmw5xkxus0xhooq3cmpfxl0pvfz5
https://app.box.com/s/9vjllv9219orb21c75cu5b6hu38w2fsg
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Here are the court documents, lets use item 143 as an example
https://www.courtlistener.com/docket/4355835/giuffre-v-maxwell/
Some document are downloadable directly, but some are shown as "purchase from PACER".
PACER is a system of court records, like where those 120,000 sealed indictments are. I signed up for an account years ago. Curious, just as all this stuff is released.....their PACER system is down for maintenance.....hmm.....I wonder what might "get lost" in that maintenance.
This is an amazing find. The "electronic redactions" in some of the court documents against Ghislane Maxwell, can be fairly easily removed.
Download the PDF
Open the containing folder
Right Click on the file and go to "Open With"
This is the only tricky part, Word will not likely be on that picklist, so you have to show it where the Winword.exe file is. Do a search, it is buried in pretty deep under Program Files.
Here is help with that search
https://securedyou.com/how-to-easily-find-a-programs-exe-executable-file/
Open it with Word, Word can open PDF's.
Now "Select All"
CTRL-C for copy, then drop that into Notepad. All the redactions will be removed.
Here is Document 143
I skimmed it. It was quite odd. Virginia Robert's lawyer had a series of objections related to anything of a sexual nature, when indeed the whole matter related to sexual activity. Was her lawyer paid off to prevent a sucessful prosecution? It is sure odd.
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Here again, this information is critical to the case. Among other things, these questions
are designed to show a modus operani (“M.O”) for Epstein and Maxwell – specifically, how they recruited for a non-sexual massage than converted the massage into sexual activities.
One last illustration comes from Defendant’s refusal to answer about her knowledge of
Epstein’s sexual interests during massages:
Q. Does Jeffrey like to have his nipples pinched during sexual
encounters?
MR. PAGLIUCA: Objection to form and foundation.
A. I'm not referring to any advice on my counsel. I'm not talking about
any adult sexual things when I was with him.
Q. When Jeffrey would have a massage, would he request that the
masseuse pinch his nipples while he was having a massage?
A. I'm not talking about anything with consensual adult situation.
See McCawley Decl. at Exhibit 5, Tr. of Maxwell Depo. (Apr. 22, 2016) at 82.
While Epstein himself might also provide answers to these questions, it appears likely
that he will assert his Fifth Amendment privilege regarding his sexual activities. Accordingly, Ms. Giuffre must pursue questioning of Maxwell to obtain information on this subject. Here again, information about Epstein’s sexual idiosyncrasies will provide important corroboration to
Ms. Giuffre’s testimony that she had sexual interactions of an identical nature with Epstein.
These refusals are not an isolated instance. Instead, similar refusals to answer questions
occurred repeatedly throughout the deposition. See, e.g., McCawley Decl. at Composite Exhibit
6. 52-55; 64-65; 82; 92-93; 137-38; 307-09.
The Court should compel Defendant to answer all these questions. In addition to the
specific points made above, the “big picture” here reveals how vital such discovery is. At the
core of Ms. Giuffre’s allegations is the allegation that Defendant lured her into a sexual situation with the offer of a job making money as a massage therapist; that Epstein always habitually tried to turn massages into sex (that was his modus operandi and plan all along); and that Maxwell recruited other females for an ostensibly proper position, such as therapeutic masseuse, with knowledge that the intent was for that person would be pressured to provide sexual gratification to Epstein. As a result, Epstein’s use of massages for sexual purposes is a central part of this case.
And Defendant’s role in those massages – and knowledge of the purposes of those massages – is a critical piece of evidence showing her state of mind when she attacked Ms.
Giuffre’s assertions as “entirely untrue.” Ms. Giuffre intends to prove at trial that Defendant knew full well the sexual purpose for which she was recruiting females – including underage females like Ms. Giuffre. Ms. Giuffre is entitled to explore Defendant’s knowledge of the sexual activities that took place under the guise of “massages.” Otherwise Defendant will be able to portray to the jury an inaccurate picture of that what was happening at Epstein’s house what nothing more than run-of-the-mill massage therapy. See, e.g., McCawley Decl. at Exhibit 7, Tr. of Maxwell Depo. (Apr. 22, 2016) at 51 (“Q: Did [the pay for massage therapists] vary on what sexual acts they performed? . . . A: No, it varied depending on how much time, some massage therapists charge more and some charge less.”).
Defendant’s refusal to answer questions about alleged “adult” consensual sex also blocks Ms. Giuffre from seeking legitimate discovery in this case. By refusing to answer questions about her and Epstein’s sexual activities with alleged “adults,” Defendant is essentially given the ability to refuse to answer any sexual question she does not wish to answer. Defendant simply has to deem the question as involving “consensual adult sex” and no need be given. The result is to leave Ms. Giuffre with no way of exploring the identity of these alleged adults, the ages of these alleged adults, and indeed whether they were adults at all. This allows Defendant to claim that she is unaware of any sexual activity involving underage females, because (she claims) the only sexual activity she was aware involved adults.
The Court should compel Ms. Maxwell to answer all questions about her knowledge
relating to sexual activities with Epstein and other females while at Epstein’s various homes. See
Fed. R. Crim. P. 37(a)(3)(B)(i); see, e.g., Kelly v. A1 Tech., No. 09 CIV. 962 LAK MHD, 2010
WL 1541585, at *20 (S.D.N.Y. Apr. 12, 2010) (“Under the Federal Rules, when a party refuses to answer a question during a deposition, the questioning party may subsequently move to compel disclosure of the testimony that it sought. The court must determine the propriety of the deponent's objection to answering the questions, and can order the deponent to provide improperly withheld answers during a continued deposition” (internal citations omitted)). Of course, the party objecting to discovery must carry the burden of proving the validity of its objections, particularly in light of “the broad and liberal construction afforded the federal discovery rules . . . .” John Wiley & Sons, Inc. v. Book Dog Books, LLC, 298 F.R.D. 184, 186 (S.D.N.Y. 2014). For purposes of a deposition, the information sought “need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Chen-Oster v. Goldman, Sachs & Co., 293 F.R.D. 557, 561 (S.D.N.Y. 2013) (citing
Fed.R.Civ.P. 26(b)(1)).
Defendant cannot carry her burden of showing that the questions asked are not
reasonably calculated to lead to the discovery of admissible evidence. This is a case in which
sexual activities lie at the heart of the issues in dispute. As a result, it is hardly surprising to find that discovery pertains to alleged “adult” sexual activities – and questions about such subjects are
entirely proper. See, e.g.,
Condit v. Dunne, 225 F.R.D. 100, 113 (S.D.N.Y. 2004) (in defamation
case, “Plaintiff is hereby ordered to answer questions regarding his sexual relationships in so far as they are relevant to a defense of substantial truth, mitigation of damages, or impeachment of plaintiff.”); Weber v. Multimedia Entm't, Inc., No. 97 CIV. 0682 PKL THK, 1997 WL 729039, at
*3 (S.D.N.Y. Nov. 24, 1997) (“While discovery is not unlimited and may not unnecessarily intrude into private matters, in the instant case inquiry into private matters is clearly relevant to the subject matter of the suit. Accordingly, plaintiff Misty Weber shall respond to defendants' interrogatories concerning her sexual partners . . . .”).
Generally speaking, instructions from attorneys to their clients not to answer questions at a deposition should be “limited to [issues regarding] privilege.” Morales v. Zondo, Inc., 204
F.R.D. 50, 54 (S.D.N.Y. 2001).
In this case, defense counsel ranged far beyond the normal
parameters of objections and sought to decide for himself what issues were relevant. That was improper and the Court should order a resumption of the Defendant’s deposition so that she can answer questions about her knowledge of sexual activity relating to Jeffrey Epstein.
CONCLUSION
Defendant should be ordered to sit for a follow-up deposition and directed to answer
questions regarding
her knowledge of alleged “adult” sexual activity.
Dated: May 5, 2016.
Respectfully Submitted,
BOIES, SCHILLER & FLEXNER LLP
By: /s/ Sigrid McCawley
Sigrid McCawley (Pro Hac Vice)
Meredith Schultz (Pro Hac Vice)
Boies Schiller & Flexner LLP
401 E. Las Olas Blvd., Suite 1200
Ft. Lauderdale, FL 33301
(954) 356-0011
David Boies
Boies Schiller & Flexner LLP
333 Main Street
Armonk, NY 10504
Bradley J. Edwards (Pro Hac Vice)
FARMER, JAFFE, WEISSING,
EDWARDS, FISTOS & LEHRMAN, P.L.
425 North Andrews Avenue, Suite 2
Fort Lauderdale, Florida 33301
(954) 524-2820
Paul G. Cassell (Pro Hac Vice)
S.J. Quinney College of Law University of Utah 383 University St.
Salt Lake City, UT 84112
(801) 585-5202
-------------------------------------------------------------------------------
Item 730 Which Was Heavily Redacted
United States District Court
Southern District of New York
Virginia L. Giuffre,
Plaintiff, Case No.: 15-cv-07433-RWS
v.
Ghislaine Maxwell,
Defendant.
________________________________/
PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S
MOTION IN LIMINE TO EXCLUDE FBI 302 STATEMENT OF PLAINTIFF
Bradley J. Edwards
FARMER, JAFFE, WEISSING,
EDWARDS, FISTOS & LEHRMAN, PL
425 North Andrews Avenue, Suite 2
FORT LAUDERDALE, FL 33301
(954)524-2820 TELEPHONE
TABLE OF CONTENTS
Page
I. PRELIMINARY STATEMENT ............................................................................................. 1
II. FACTUAL BACKGROUND .............................................................................................. 1
III. DISCUSSION ...................................................................................................................... 2
A. Ms. Giuffre’s FBI 302 is Offered to Prove That She Reported Her Allegations to Law
Enforcement, Not to Prove the Truth of any Matters Asserted Therein. ......................... 2
B. Even if Treated as Hearsay, The FBI 302 is Admissible Pursuant to Rule 803(8) as a
Public Record. .................................................................................................................. 5
C. THE FBI 302 IS NOT UNDULY PREJUDICIAL .......................................................... 9
IV. CONCLUSION .................................................................................................................. 10
i
TABLE OF AUTHORITIES
Page
Cases
Bingham v. Jefferson Cnty., No. 1:11-cv-48, 2013 WL 1312563, at *7 (E.D. Tex. Mar. 1, 2013) 8 Moss v. Ole South Real Estate, Inc., 933 F.2d 1300, 1305 (5th Cir. 1991) .................................... 8 Parsons v. Honeywell, Inc., 929 F.2d 901, 907 (2d Cir.1991) .................................................... 6-7
Spanierman Gallery, Profit Sharing Plan v. Merritt, No. 00CIV5712LTSTHK, 2003 WL
22909160, at *5 (S.D.N.Y. Dec. 9, 2003) ................................................................................... 6
U.S. ex rel. Wuestenhoefer v. Jefferson, No. 4:10-CV-00012-DMB, 2014 WL 7185428, at *2
(N.D. Miss. Dec. 16, 2014) ......................................................................................................... 7 U.S. v. Puente, 826 F.2d 1415 (5th Cir. 1987)). ............................................................................. 6 United States v. Brennan, 798 F.2d 581, 589 (2d Cir. 1986).......................................................... 5 United States v. Dunloy, 584 F.2d 6, 11 (2d Cir.1978)................................................................... 3 United States v. Everett, 825 F.2d 658, 661 (2d Cir. 1987) .......................................................... 10 United States v. Khan, 821 F.2d 90 (2d Cir. 1987) ...................................................................... 4-5 United States v. Song, 436 F.3d 137, 139 (2d Cir. 2006) ............................................................... 3
Upstate Shredding, LLC v. Ne. Ferrous, Inc., No. 312CV1015LEKDEP, 2016 WL 865299, at
*13 (N.D.N.Y. Mar. 2, 2016) ...................................................................................................... 6
Other Authorities
5 JONES ON EVIDENCE § 34:13 (7th ed.).......................................................................................... 6
Rules
Fed. R. Evid. 403 ............................................................................................................................ 9 Fed. R. Evid. 801(c)(2) ................................................................................................................... 3 Fed. R. Evid. 801(d)(1)(B)(i) .......................................................................................................... 3 Fed. R. Evid. 801(d)(2)(B)(i) .......................................................................................................... 4 Fed. R. Evid. 803(6). ................................................................................................................... 6, 7 Fed. R. Evid. 803(8) .................................................................................................................... 6, 7 Fed. R. Evid. 803(8)(A) .............................................................................................................. 1, 8 Fed. R. Evid. 803(8)(A)(ii) ......................................................................................................... 7, 9 Fed. R. Evid. 803(8)(B) .............................................................................................................. 8, 9
ii
Plaintiff, Virginia Giuffre, by and through her undersigned counsel, hereby files this response in opposition to Defendant’s Motion in Limine to Exclude FBI 302 Statement of Plaintiff [DE 667].
I. PRELIMINARY STATEMENT
Defendant has filed a motion in limine seeking to exclude from evidence Ms. Giuffre’s statement to the FBI in 2011 about Jeffrey Epstein’s and Defendant’s sex trafficking crimes, raising a hearsay objection. In Defendant’s Motion in Limine to Exclude FBI 302 Statement of Plaintiff (hereinafter “Mot.”), she appears to misunderstand the purpose for which this document will be admitted—to establish that Ms. Giuffre properly reported her allegations to law enforcement. Accordingly, the document is not being admitted to prove the truth of any matters asserted therein, and thus is not a hearsay statement. In any event, even if the statement is regarded as hearsay, it easily falls within a recognized exception, such as the public record exception of 803(8)(A). Numerous courts, including this one, have admitted FBI 302s under this authority. The statement is also trustworthy because it is simply the FBI’s recording of Ms. Giuffre’s own statement and, of course, Ms. Giuffre is fully available to answer any questions
about it at trial.
II. FACTUAL BACKGROUND
It appears to be undisputed that on March 17, 2011, Ms. Giuffre was interviewed by FBI
Special Agents—along with a telephonically present Assistant United States Attorney—at the
United States Consulate in Sydney, Australia, as part of an ongoing investigation into Jeffrey Epstein sexual abuse and sex trafficking conspiracy. In due course, a Special Agent prepared a standard summary of Ms. Giuffre’s statement—commonly referred to as an FBI “302.” Ms. Giuffre’s FBI 302 was generated in relation to file number 31E-MM-108062, and was drafted on
July 5, 2013. The 302 was published on federally-issued Form FD-302/FD-302a (Rev. 5-8-10)
1
bearing the official seal of the Federal Bureau of Investigation, and explicitly indicating that the document is an “Official Record” wherein “[a]ll signatures have been verified by a certified FBI information system.” See Edwards Dec., Ex. 1 at 1.
Ms. Giuffre properly provided her FBI 302 to the Defendant in discovery.
(GIUFFRE001235). Now, Ms. Giuffre intends to present that FBI 302 at trial.
III. DISCUSSION
In her motion raising a hearsay objection, Defendant mischaracterizes Ms. Giuffre’s purpose for offering the self-authenticating FBI 302. The subject evidence is not being offered for the truth of the matter asserted, rather to rebut the assertion that Ms. Giuffre has failed to properly report her allegations to law enforcement and engaged in a recent fabrication to baselessly initiate the pending litigation. Accordingly, it is not being offered to prove the truth of any matter asserted and thus is not excluded by the rule against hearsay. The FBI 302 is also covered by various hearsay exceptions, and its introduction at trial is not unduly prejudicial in any way.
A. MS. GIUFFRE’S FBI 302 IS OFFERED TO PROVE THAT SHE REPORTED HER ALLEGATIONS TO LAW ENFORCEMENT, NOT TO PROVE THE TRUTH OF ANY MATTERS ASSERTED THEREIN.
Defendant claims at the beginning of her motion to be confused about why Ms. Giuffre
intends to offer her FBI 302 into evidence. See Mot. at 1. In fact, the reason is clear: Ms. Giuffre properly reported her allegations of sex abuse and sex trafficking to federal law enforcement agents in 2011, well before the disputed events in this case occurred. The jury may use that fact of a prior report to law enforcement as one of piece of evidence supporting Ms. Giuffre’s credibility.
Of course, because the evidence is coming in to support credibility, the underlying truth
of anything that Ms. Giuffre may have stated to the FBI is not at issue. The hearsay rules only
2
operate to exclude out-of-court statements being offered “in evidence to prove the truth of the matter asserted in the statement.” Fed. R. Evid. 801(c)(2) Because Ms. Giuffre is not offering the statement to prove the truth of the matters asserted—i.e., that Epstein and Defendant had sexually trafficked her—the hearsay prohibition simply does not apply. See, e.g., United States v. Song, 436 F.3d 137, 139 (2d Cir. 2006) (noting that evidence was properly admitted “inasmuch as the challenged statements were offered not for the truth of the matters asserted, but rather, to demonstrate the motivation behind [the declarant’s] actions”); see also United States v.
Dunloy, 584 F.2d 6, 11 (2d Cir.1978).
Defendant pretends to by puzzled by all of this, and yet Defendant has clearly
demonstrated her intention to make issues regarding reporting to law enforce a central part of the trial. A good illustration comes from Defendant’s recently-filed motion to exclude certain 404(b) evidence from witness Rinaldo Rizzo. Defendant argues that Rizzo’s allegations that he saw Defendant, for example, trying to force a 15-year-old Swedish girl to have sex with Epstein, should be discounted because Rizzo did not “report any such events to law enforcement.” Defendant’s Motion to Exclude Evidence Pursuant to Fed. R. Evid. 404(b) at 8. The issue of whether a witness has failed to report a crime to law enforcement is a question that immediately springs to mind. And, in this case, that issue will immediately spring to the minds of the jury considering Ms. Giuffre’s credibility. Ms. Giuffre is entitled to allay such concerns by showing that she properly met with law enforcement in 2011.
In an effort to deflect such arguments, Defendant apparently concedes that the FBI 302 could be used to establish Ms. Giuffre’s credibility under Fed. R. Evid. 801(d)(1)(B)(i) if it is used to “rebut an express or implied charge that the defendant recently fabricated it or acted from a recent improper influence or motive in so testifying.” See Mot. at 4. This concession would
3 appear to be enough to establish the admissibility of the FBI 302 because it is obvious that Defendant will continue to aggressively attack Ms. Giuffre’s credibility by claiming that she is improperly seeking money through this lawsuit or through publicity that will help her write a book. Showing that, in 2011, Ms. Giuffre had reported her allegations to the FBI, will obviously respond to such suggestions.
But, Defendant presents a strawman characterization of how the evidence will be used, arguing that Ms. Giuffre will attempt to use the FBI 302 only to respond to suggestions that, in meeting with journalist Sharon Churcher, Ms. Giuffre had no improper motive. See Mot. at 4. Defendant then argues that Ms. Giuffre’s 2011 meeting with Ms. Churcher pre-dated by a few weeks the 2011 FBI meeting, and thus the statement is not a prior consistent statement—i.e., was not made prior to meeting with Ms. Churcher. If this case were solely about Ms. Giuffre’s statements to Ms. Churcher, Defendant might have an argument. But obviously the case is not so limited—as the Court can immediately determine by reviewing the voluminous pleadings Defendant has filed in this case attempting to assassinate the character of Ms. Giuffre on any number of grounds. The FBI 302 rebuts many of those attacks. For example, Defendant’s press release itself suggests that, on December 30, 2014, when Ms. Giuffre filed her CVRA Joinder Motion, she was acting improperly. Of course, a meeting with FBI agents more than three years earlier—in 2011—immediately rebuts the suggestion that the December 30, 2014, the CVRA Joinder Motion was some sort of recent fabrication. Rule 801(d)(2)(B)(i) clearly allows the statement to be admitted. See, e.g., United States v. Khan, 821 F.2d 90 (2d Cir. 1987). It is important to understand that the hearsay rules do not artificially require Ms. Giuffre to point to some specific statement from Defendant attacking her credibility before she is allowed to introduce a prior consistent statement. The rule itself is broadly written, allowing a
4
prior consistent statement to be admitted to rebut an “implied” charge of fabrication. The Second Circuit has made clear that the party admitting a prior consistent statement does “not have to point to a specific inconsistent statement” being attacked. United States v. Khan, 821 F.2d 90, 94 (2d Cir. 1987). Instead, it is enough to show that opposing counsel has “attacked [the witness’] credibility on cross-examination.” Id. Indeed, “it matters not, however, whether the inconsistent statement is put in through specific testimony or through mischaracterization or suggestive or misleading cross-examination.” United States v. Brennan, 798 F.2d 581, 589 (2d Cir. 1986) (affirming admission of prior consistent statement). If the Court can be certain of one thing in this case, it is that Defendant will raise a broadside attack on Ms. Giuffre’s credibility through cross-examination. Ms. Giuffre will, of course, answer those questions. But she is also entitled to present to the jury evidence supporting her credibility as well by showing this prior consistent statement.
To be sure, at this pre-trial stage of the process, the Court cannot be entirely certain of
how the trial will unfold. Accordingly, while it seems obvious now that the FBI 302 will be admissible to respond to attacks on Ms. Giuffre’s credibility, the Court may wish to defer ruling on this issue until after Ms. Giuffre is cross-examined. Certainly, at the very least, it would be improper to exclude the evidence at this juncture given that the FBI 302 will undoubtedly become admissible at trial.
B. EVEN IF TREATED AS HEARSAY, THE FBI 302 IS ADMISSIBLE PURSUANT TO RULE 803(8) AS A PUBLIC RECORD.
For all the reasons just explained, the FBI 302 is not hearsay. Even if the Court were to
regard it as hearsay, however, the 302 would still be admissible. Because the document was prepared by a highly-credible public agency—the Federal Bureau of Investigation on a federallyapproved form—it is a report of a public office and qualifies for exemption from the hearsay
5
rules either as a public record under Fed. R. Evid. 803(8) or as a regularly kept business record under Fed. R. Evid. 803(6).
As Defendant is forced to concede in her motion, Mot. at 2, Fed. R. Evid. 803(8) provides
an exception to the hearsay prohibition for:
(8) Public Records. A record or statement of a public office if:
(A) it sets out:
(i) the office’s activities;
(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or
(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and
(B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.
Here, there can be little doubt that the Federal Bureau of Investigation is a “public office.” Nor can there be any real doubt that the FBI’s recording of Ms. Giuffre’s statement is a “matter observed while under a legal duty to report.” The FBI’s “‘duty to report’ encompasses duties explicitly required by law, and also matters within the general subject-matter of the agency which logically assist it in fulfilling its functions, even if no specific statute or regulation mandate that such reports be made.” 5 JONES ON EVIDENCE § 34:13 (7th ed.) (citing U.S. v. Puente, 826 F.2d 1415 (5th Cir. 1987)).
Similar FBI records have been regularly admitted by the courts into evidence under this provision, including this court. See, e.g., Spanierman Gallery, Profit Sharing Plan v. Merritt,
No. 00CIV5712LTSTHK, 2003 WL 22909160, at *5 (S.D.N.Y. Dec. 9, 2003) (“As is true for police reports, FBI reports are admissible in evidence as either business records, see Fed. R
.Evid. 803(6), or as public records, see Fed. R. Evid. 803(8).”); Upstate Shredding, LLC v. Ne. Ferrous, Inc., No. 312CV1015LEKDEP, 2016 WL 865299, at *13 (N.D.N.Y. Mar. 2, 2016)
(“The 302 Report itself is admissible as a business record or a public record.”); see also Parsons
6
v. Honeywell, Inc., 929 F.2d 901, 907 (2d Cir.1991) (police report admissible as public record under Rule 803(8)). For example, in U.S. ex rel. Wuestenhoefer v. Jefferson, the Court admitted
FBI 302’s on the basis of Rule 803(8) holding that, “while the subject matters of the witness statements were not observed by the agents, it is clear that the statements themselves were
‘observed.’” No. 4:10-CV-00012-DMB, 2014 WL 7185428, at *2 (N.D. Miss. Dec. 16, 2014). The Court specifically recognized that, “[t]here can be no doubt that summaries of interviews conducted during the course of investigating a federal crime fall squarely within the category of ‘matters within the general subject-matter of [the FBI] which logically assist it in fulfilling its functions.’” Id. Accordingly, the Court concluded that FBI 302’s meet the "duty to report" requirement of Rule 803(8). Id. Likewise here, while the Special Agents who interviewed Ms. Giuffre did not personally observe Jeffrey Epstein or any of his co-conspirators sexually abuse Ms. Giuffre when she was underage, the agents did observe Ms. Giuffre make the statements delineated within the report. Therefore, the FBI 302 is readily admissible under Fed. R. Evid. 803(8)(A)(ii).
Attempting to defeat admissibility, Defendant makes the far-fetched argument that
somehow the FBI Agents who had travelled all the way to Australia to interview Ms. Giuffre (with an Assistant U.S. Attorney listening in on the phone) were not conducting a “legally authorized” investigation. This argument is ludicrous and has no bearing on admissibility under 803(A)(ii). Even though the U.S. Attorney’s Office had previously entered into a NonProsecution Agreement with Epstein and his potential co-conspirators, the Office would have been entitled to investigate the involvement of any other persons in sex trafficking and any other locations where sex-trafficking occurred.
7
Given that the FBI 302 satisfies the requirements for admission under Rule 803(8)(A), the Defendant can exclude the document only if she carries her burden of showing that the FBI 302 is untrustworthy pursuant to 803(8)(B). To determine trustworthiness, the Court should look to the following four factors: (1) the timeliness of the investigation, (2) the special skill or expertise of the official, (3) whether a hearing was held and at what level, and (4) possible motivational problems." Bingham v. Jefferson Cnty., No. 1:11-cv-48, 2013 WL 1312563, at *7
(E.D. Tex. Mar. 1, 2013) (quoting Moss v. Ole South Real Estate, Inc., 933 F.2d 1300, 1305 (5th
Cir. 1991)).
Defendant apparently bases her trustworthiness attack on the fact that the FBI 302
produced in this case was produced in a redacted format. Mot. at 3. However, the redactions do not alter any of the actual contents of the FBI 302. The identification, credentials, and qualifications of the Special Agent, and the contents of his report are not changed in any way as a result of redactions designed to protect confidentiality. Instead, the official Federal Bureau of Investigation seal and corresponding attestation that “[a]ll signatures have been verified by a certified FBI information system” establish that, far from being untrustworthy, this is in fact one of the most trustworthy documents that could be introduced in a trial.
Any remaining issues about the significant of the redactions are left to the jury to decide. Defendant’s motion offers the example of passages in the 302 that read “Once upstairs_______” or “that _______ demonstrated massage techniques.” Mot. at 4. But, of course, there are other un-redacted statements that are highly significant in corroborating Ms. Giuffre’s testimony. For example, the FBI 302 notes that, while working at the Mar-A-Lago Club, “GIUFFRE started studying for her GED and wanted to become a massage therapist.” See Edwards Dec., Ex. 1 at 2. That statement will be useful to corroborate Ms. Giuffre’s allegations. More broadly, the jury
8
can make appropriate inferences about the remaining statements that are not redacted, particularly given that Ms. Giuffre will be able to explain what information she provided to the FBI, as well as establishing that she was interviewed by FBI Agents, and that she provided the information to the FBI. And, of course, she will be available to testify at trial to answer any questions that the Defendant may have about all this. The presence of redactions in the 302 does not create a “trustworthiness” problem. Consequently, Defendant has failed to meet her burden of establishing the lack of trustworthiness of the FBI 302 under Rule 803(8)(B). Therefore, the FBI 302 should be admitted pursuant to Rule 803(8)(A)(ii).
C. THE FBI 302 IS NOT UNDULY PREJUDICIAL
Defendant closes her motion with a brief (four-sentence) argument that the FBI 302 is
somehow unduly prejudicial. Mot. at 5. The only argument that Defendant advances, however, is that the jury might somehow be confused because of the redactions contained in the 302. But that is an issue that can be fully explored through cross-examination of Ms. Giuffre. Defendant can ask her what she told the FBI and thus clear up any confusion about the redactions. Indeed,
Defendant also remains free to call the FBI Agents who were involved in the interview or the Assistant U.S. Attorney who listened. While these persons are not on the Defendant’s current witness list, Ms. Giuffre would have no objection to them being added. Moreover, the contact information is readily available. For example, Assistant U.S. Attorney Marie Villafana who participated in the interview by phone is still employed at the U.S. Attorney’s Office for the Southern District of Florida.
In any event, Federal Rule of Evidence 403 permits exclusion of relevant evidence only
where probative values is “substantially outweighed” by risk of confusion. Given that the FBI 302 is being admitted for purposes of showing not the truth any particular sub-allegation contained in the document, but only the general fact that Ms. Giuffre made allegations of this
9
type to the FBI, the risk of confusion is virtually non-existent. And, of course, to the extent that Defendant wants appropriate cautionary instructions to clarify this point, Ms. Giuffre would have no objection to such instructions. Such instructions would reduce the already-insubstantial chance that the jury will misunderstand what its task is at the trial. See, e.g., United States v. Everett, 825 F.2d 658, 661 (2d Cir. 1987) (recognizing power of “cautionary instructions regarding how the jury was to consider this proof”).
IV. CONCLUSION
For all the foregoing reasons, the Court should deny Defendant’s Motion in Limine, and allow the FBI 302 to be introduced into evidence at trial.
Dated: March 17, 2017
Respectfully Submitted,
By: /s/ Bradley J. Edwards
Bradley J. Edwards (Pro Hac Vice)
FARMER, JAFFE, WEISSING,
EDWARDS, FISTOS & LEHRMAN, P.L.
425 North Andrews Avenue, Suite 2
Fort Lauderdale, Florida 33301
(954) 524-2820
BOIES, SCHILLER & FLEXNER LLP
Sigrid McCawley (Pro Hac Vice)
Meredith Schultz (Pro Hac Vice)
Boies Schiller & Flexner LLP
401 E. Las Olas Blvd., Suite 1200
Ft. Lauderdale, FL 33301
(954) 356-0011
David Boies
Boies Schiller & Flexner LLP
333 Main Street Armonk, NY 10504
Paul G. Cassell (Pro Hac Vice)
S.J. Quinney College of Law
University of Utah
10
383 University St.
Salt Lake City,
UT 84112(801) 585-5202
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 17th day of March, 2017, I electronically filed the foregoing document with the Clerk of Court by using the CM/ECF system. I also certify that the foregoing document is being served this day on the individuals identified below via transmission of Notices of Electronic Filing generated by CM/ECF.
Laura A. Menninger, Esq.
Jeffrey Pagliuca, Esq.
HADDON, MORGAN & FOREMAN, P.C.
150 East 10th Avenue
Denver, Colorado 80203
Tel: (303) 831-7364
Fax: (303) 832-2628
Email: lmenninger@hmflaw.com
jpagliuca@hmflaw.com
By: /s/ Bradley J. Edwards
Bradley J. Edwards (Pro Hac Vice)
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