Ghislaine Maxwell’s lawyer asked a U.S. appeals court to overturn her conviction for grooming and abusing girls for the late sex-trafficker Jeffrey Epstein.
During oral arguments on Tuesday before the Court of Appeals for the Second Circuit, her attorney Diana Fabi Samson argued that Epstein’s infamous 2007 non-prosecution agreement (NPA) should have barred her prosecution.
That lenient deal, inked with the U.S. Attorney for the Southern District of Florida, provided immunity for alleged co-conspirators including four women tied to Epstein. Maxwell wasn’t listed on the document, but her lawyers say she’s covered—and that the agreement was intended to bind every other U.S. Attorney’s Office in the country.
But assistant U.S. Attorney Andrew Rohrbach told the court that the document only applies to the Southern District of Florida and where it uses the word “the United States,” it’s simply a “generic reference” to that district’s U.S. Attorney’s Office.
After the quick proceeding, Arthur Aidala, another lawyer on Maxwell’s team, told the press that the socialite’s case was one of national significance.
“It’s the integrity of the system—that’s what we’re fighting for with Ghislaine,” Aidala told a group of reporters outside the courtroom.
“We’re cautiously optimistic the court will rule in our favor and dismiss this case,” he added.
“Ghislaine’s life is in their hands,” Aidala said of the three-judge panel. “It’s not just her life—it’s the whole system.”
There wasn’t time for arguments on another issue: Their claim that Maxwell didn’t receive a fair trial because of a juror who failed to disclose he was a victim of sexual abuse.
At her December 2021 trial, Maxwell was convicted on five counts: conspiracy to entice minors to travel to engage in illegal sex acts; conspiracy to transport minors with intent to engage in criminal sexual activity; transportation of a minor with intent to engage in criminal sexual activity; sex trafficking conspiracy; and child sex trafficking. (She was acquitted on a charge of enticement of a minor to travel to engage in illegal sex acts.)
The following June, a federal judge sentenced Maxwell to 20 years in prison and a $750,000 fine. The socialite filed a notice of appeal days later.
Maxwell is serving her sentence at low-security federal prison in Florida, FCI Tallahassee, where, according to Page Six, she recently ran the lockup’s half marathon, served as an interpreter for fellow inmates, and is “laser-focused” on her appeal.
During the trial, four victims testified against Maxwell about abuses that occurred between 1994 and 2004 when they were underage. One of them, using the pseudonym Jane Doe, said Epstein and Maxwell recruited her from a prestigious arts camp when she was just 14 years old. Jane testified that during visits to Epstein’s Palm Beach lair, Maxwell would train her on how to “massage” the middle-aged money manager and that Maxwell was “very casual” about the sexual abuse, sending the message that “this was entirely normal.”
At the time, Maxwell was Epstein’s girlfriend and would later become his employee.
“Ghislaine Maxwell was dangerous,” then-assistant U.S. Attorney Alison Moe said during closing arguments. “She was a grown woman who preyed on vulnerable kids, young girls from struggling families.”
“Maxwell was a sophisticated predator who knew exactly what she was doing,” Moe added. “She ran the same playbook again and again and again. She manipulated her victims and she groomed them for sexual abuse. She caused deep and lasting harm to young girls.”
But the defense called Maxwell a “scapegoat” for Epstein’s crimes and argued the women had motivation to testify against her: Payouts worth millions of dollars from a victim compensation fund.
”Ghislaine Maxwell is not Jeffrey Epstein,” defense lawyer Laura Menninger told jurors during summations. “She’s being tried here for being with Jeffrey Epstein. Maybe that was the biggest mistake of her life, but it was not a crime.”
Benjamin Silverman, a criminal defense and appellate lawyer in New York, told The Daily Beast that the Second Circuit reverses under three percent of criminal cases each year.
“The U.S. Attorney’s Office for the Southern District of New York is given an extraordinary amount of deference, as are judges from the Southern District, and any criminal defendant in any case faces extremely long odds,” Silverman said.
Maxwell’s high-profile appeal would be no exception. “The majority of criminal appeals are denied very quickly, in what are called summary orders, which are just summary denials,” added Silverman, who is not involved in Maxwell’s case.
In her brief before the Second Circuit, Maxwell makes five arguments in favor of reversing her convictions and dismissing her indictment, ordering a new trial, or remanding the case to the district court for resentencing.
Maxwell claims her convictions were obtained in violation of Epstein’s NPA, and that the counts in her indictment were time barred.
She argues that “she was deprived of her constitutional right to be tried by a fair and impartial jury” after one juror revealed in post-verdict media interviews that he provided false answers on a jury questionnaire about his own history of sexual abuse. (Juror 50, who went by Scotty David in the press, later testified that he unintentionally glossed over the questions relating to whether he’d ever been the victim of a crime.)
Maxwell’s brief also claims the court “refused to correct” a “misunderstanding” by jurors who sent a note during deliberations, and that her sentence was based on a “miscalculation of the guideline range,” with the judge wrongfully determining Maxwell had an “aggravating role” in Epstein’s sex crimes.
The Second Circuit panel that heard Maxwell’s case on Tuesday included judges José A. Cabranes, Richard C. Wesley, and Raymond J. Lohier, Jr.
Lohier asked Maxwell’s attorney Diana Fabi Samson if she had any evidence as to why Maxwell wasn’t listed in the NPA among other alleged co-conspirators. The document protected supposed accomplices “including but not limited to,” Sarah Kellen, Adriana Ross, Lesley Groff, and Nadia Marcinkova from prosecution.
Fabi Samson answered that Maxwell “doesn’t have much discovery” regarding the issue.
The judge also told Fabi Samson that he read the Department of Justice manual on NPAs and it “suggests the opposite” of her argument—namely that one U.S. Attorney cannot bind another U.S. Attorney’s Office from pursuing a prosecution.
Lohier asked Rohrbach whether he was aware of any other NPAs in other cases that applied to U.S. Attorney’s Offices across the country. “I’ve never seen one,” Rohrbach replied.
Silverman said the key issues for judges in Maxwell’s appeal will likely be whether Epstein’s non-prosecution agreement should have prevented the feds from filing charges against her—and Juror 50’s failure to disclose his childhood sexual abuse on a jury questionnaire, followed by his post-trial press tour where he declared his experience came up in deliberations.
“He provided an inaccurate answer on the jury questionnaire, which denied Maxwell’s lawyers a fair chance to probe him for bias, and after the verdict he promptly goes out and talks to the media,” Silverman said. “It’s ugly. Things like this are not supposed to happen. In a perfect world, this kind of thing would result in a new trial. We don’t live in a perfect world.”
He referred to Judge Alison Nathan’s April 2022 order denying Maxwell’s request for a retrial over the juror issue. At the time, Nathan noted that “Trials entail significant investments of public and private resources” and that “a verdict may be set aside only in the most extraordinary of circumstances.” (Nathan is now a judge for the Second Circuit.)
“Judge Nathan emphasized the extraordinary public costs of these trials and extraordinary public costs of a retrial,” Silverman said. “And those kinds of costs and public resources will definitely weigh on judges in determining whether they want to grant the appeal.”
“As a defense lawyer, you want the court to ensure that your client does not spend 20 years in jail without a fully fair trial,” he added. “But unfortunately, the public cost of a retrial is always a consideration. Judge Nathan commendably made this consideration explicit. Many judges do not.”
Fabi Samson argued in the appeal brief that the feds prosecuted the heiress as “a proxy” for Epstein: “It did so to satisfy public outrage over an unpopular non-prosecution agreement and the death of the person responsible for the crimes.”
Under the NPA, Epstein pleaded guilty to lesser state charges and received an 18-month county jail sentence, much of which was spent on “work release.” According to victims’ lawyers, Epstein continued to abuse victims while out on the jail’s job program.
Epstein’s sweetheart deal, Fabi Samson wrote, was intended to apply to all federal jurisdictions, even outside the Southern District of Florida, and “the court abused its discretion” by refusing Maxwell’s request for a hearing to determine the NPA’s scope.
But federal prosecutors, in their own brief, noted that the district court has twice denied Maxwell’s motion to dismiss the charges based on the NPA, concluding that the agreement “does not bind” the U.S. Attorney’s Office in Manhattan.
“Maxwell has no right to invoke the protections of the NPA,” U.S. Attorney Damian Williams says in the filing. “Maxwell was not a signatory to the agreement.” Williams added that the NPA is signed only by federal prosecutors in Miami and no one from the Department of Justice. “Accordingly, the plain terms of the NPA make clear that the agreement only binds” the U.S. Attorney’s Office for the Southern District of Florida, he said.
As for Juror 50, Maxwell says that out of 50 items on his jury questionnaire, “only questions that would have revealed his sexual abuse history were answered incorrectly.”
On the form, the juror falsely denied he’d been a victim of a crime or a victim of sexual abuse and that a family member was accused of a crime. (He later said he didn’t think of himself as a victim or the person who abused him as family.)
“Here, Juror 50’s undisclosed experience was strikingly similar to the experiences described by the witnesses at trial,” Maxwell’s brief stated. “Juror 50 was a victim of childhood sexual abuse; was abused as a minor on multiple occasions over the course of several years; was abused by someone he knew and trusted and another person; and delayed disclosing the abuse for years.”
After the trial, the juror told the media the verdict against Maxwell was “for all the victims.” At a hearing in March 2022, he told the court that after “seeing the victims be brave enough to give their story, I felt like if they can do it, so can I.”
The government argues that Judge Nathan, after questioning the juror under oath, found that his answers on the questionnaire “were not deliberately inaccurate.” Nathan also determined she wouldn’t have granted a for-cause challenge to the juror had he provided accurate information during voir dire—the examination of potential jurors before trial.
“The hearing established that Juror 50 harbored no bias, approached his jury service with an open mind, and was committed to deciding the case based on the evidence and the District Court’s legal instructions,” Williams stated in a brief.
Twelve of 58 prospective jurors told the court that a friend or relative was the victim of sexual abuse, assault or harassment, including one who said she was “sexually molested” by an uncle when she was 12 or 13 and another who said a friend was abused by a professor. The government says neither prosecutors nor the defense challenged those jurors.
Maxwell is also asking the appeals court for a resentencing or for her sentence to be “substantially reduced.”
Her lawyers say her sentencing range would have been lower had the court not applied an enhancement related to her role as an “organizer, leader, manager, or supervisor of one or more other participants” in Epstein’s sex ring.
They claim this sentencing enhancement hinges on Maxwell’s supervision of co-conspirator Sarah Kellen but that trial testimony wasn’t conclusive on that score; Epstein’s pilot Larry Visoski testified that Kellen was Maxwell’s assistant but at another point told jurors he didn’t know what Kellen’s job was in Epstein’s and Maxwell's circle.
For their part, the government said “Judge Nathan found that Maxwell led Sarah Kellen,” as two of Epstein’s pilots testified she was Maxwell’s assistant. Maxwell, the feds pointed out, was Epstein’s “number two and the lady of the house” in Palm Beach, where Kellen allegedly scheduled massages and took nude photos of a victim.
If Maxwell’s appeal is denied, her lawyers can request a rehearing en banc, where the full panel of Second Circuit judges will reconsider the matter, or file a petition with the U.S. Supreme Court. She faces an uphill battle either way, Silverman said.
Maxwell’s Arthur Aidala told reporters they would be pursuing a rehearing en banc, and then turn to the U.S. Supreme Court if necessary.
But to meet the standard for a request for the high court to review a case, Maxwell would need to show a split among lower federal courts on how they treat a particular issue or present an issue of substantial national importance and wide application.
“Her lawyers are going to have a difficult time making that showing based on facts unique to her case,” Silverman told The Daily Beast, “including atypical language in Epstein’s non-prosecution agreement that is unlikely to be repeated in future cases, and the unique facts of Juror 50.”
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