Mega Edition: Ghislaine Maxwell Appeals Her Conviction (9/4/26)

0:00Dave Roberts here. There you are surrounded by fans, sharing wings, sharing drinks, high-fiving random strangers. Everybody remembers the game. Nobody remembers the guy coughing behind you until a few days later. At 2am, you wake up with the fever and your throats on fire. Now what? Urgent care, clothes, ER, slam, telehealth, maybe, but the pharmacy's clothes. You needed a medical emergency kit. These aren't first aid kits. They contain essential prescriptions, use for over 30 common conditions, sinus and ear infection, UTIs, stomach bug, travelers diarrhea and more. On hand before you need them. Use your doctor-developed guidebook to select the right prescription or call their telemedicine doctor standing by. It's like an urgent care and drugstore at home. When you're sick, traveling or stranded, you'll wish you ordered a medical emergency kit. Order online in minutes and it's shipped to your door and say $45 with my promo code blue at urgentcarekit.com slash blue. That's promo code blue at urgentcarekit.com slash blue.

1:01What's up everyone and welcome back to the Epstein Chronicles. In this episode, we're going to begin taking a look at why Golane Maxwell think she should be granted an appeal. And to do that, we're going to take a look at the Golane Maxwell reply brief. Preliminary statement in reply. Miss Maxwell relies on her arguments in her principle of Helen's brief points to N4 and supplements her arguments and points one three and five herein. Miss Maxwell argues that she is the third party beneficiary of the non-prosicution agreement here and after NPA and as such as standing to enforce the co-conspirator immunity provision which by its terms barred this prosecution. Alternatively, the district courts reliance on US vs. Anabee 771 F.2 D670 second circuit 1985 to resolve perceived ambiguities was an error and the district court should have ordered a hearing. Miss Maxwell further argues that the district courts findings and conclusions

2:02concerning juror 50 were an abuse of discretion in three separate respects. One juror 50's explanations for his false answers to a juror questionnaire were incredible on their face. Two juror 50 can seal traumatic experience as a victim of childhood sexual abuse under circumstances analogous to the experience of the government witness. If known Jarringvore Dyer would have provided a valid basis for a challenge for cause. And three, the court abandoned its obligation to ascertain not merely the juror's credibility but also the validity of a challenge when it unduly narrowed the scope of its examination of juror 50 at a post trial hearing. Miss Maxwell argues that the district court sentence was an error because one its four point enhancement under USS G section 3B1.1 lacked any support in the record that Miss Maxwell supervised another criminal participant and two its sentencing decision was predicated on a miscalculation

3:03of the applicable guidelines and range for incarceration and fines in the first instance and the subsequent failure to correct its error by either recalculating the sentence so as to comport with a proper guideline range or provide reasons for its upward departure. US code 18, section 3553, C in 2. The conviction must be reversed and the indictment dismissed or in the alternative the matter should be remanded for the appropriate hearings. Point number 1, Point number 1 in appellance principal brief, Miss Maxwell is the third party beneficiary of a non-prosicution agreement which by its terms barred the US AO SDNY from prosecuting Miss Maxwell for these offenses. In this circuit while ordinarily any plea or non-prosicution agreement is confined to enforcement in the district of origin under US and obi supra there is an exception wherein if affirmatively appears that the agreement contemplates a broader restriction

4:03as is the case here. See a knobby at 672 this exception dictates that the MPA be enforced to protect Miss Maxwell as a third party beneficiary to the agreement from prosecution for these offenses. C U S Cambindo Valencia 609 F dot 2 D 603 second circuit 1979 standing for the proposition that there can be a third party beneficiary of a plea bargain for another. The MPA together while the justice office of professional responsibility here and after OPR established that the immunity given to Miss Maxwell precluded the United States from prosecuting her in the southern district of New York or elsewhere. A Miss Maxwell has standing to enforce the non-prosicution agreement as a third party beneficiary. The district court correctly found that Miss Maxwell is the third party beneficiary of the MPA and for that reason has standing to enforce it. As the seven circuit has observed plea agreements like all ordinary contracts may be enforced by third parties when the original parties

5:07intended the contract to directly benefit them as third parties. U S versus Andrius 216 F dot 3 D 645 663 seven circuit 2000 indicating that third party beneficiary standing applies to immunity agreements and plea agreements but concluding on the fact presented that defendants were not third party beneficiaries. No circuit has held otherwise in this court should not create split on this issue. The seven circuit has been joined by numerous district courts and holding that in agreement promising immunity to a third party may be enforced by that party if that party is later prosecuted in breach of the agreement. C U S versus Stolt Nielsen 525 F dot S U P P dot 2 D 609 613 and 614 620 through 623 628 Eastern District, Pennsylvania 2007. Dismissing indictment against Stolt Nielsen directors and or officers as they were intended third

6:10party beneficiaries of the conditional leniency agreement between the DOJ anti-trust division and Stolt Nielsen U S versus Florida West International Airways Incorporated 853 F dot S U P P 2 D 1209 1228 through 32 S D Florida 2012. Dismissing indictment against employees of air cargo provider as he added a third party beneficiary standing necessary to establish his immunity under the plea agreement between the government and his employer. U S versus L Sadeeg 133 F dot S U P P 2 D 600 Northern District of Ohio 2001. Even if the non-prosicution agreement was never fully communicated to defendant L Sadeeg he can enforce the non-prosicution agreement as a third party beneficiary U S versus CFW Constitutional College IMC 583 F dot S U P P 197 DSC 1984.

7:11An intended third party beneficiary of a contract may enforce its provisions thus if the government in negotiating the aforementioned plea agreements promised that there would be no prosecution against the FW the promise must be enforced. This rule makes sense. plea agreements are interpreted in accordance with contract law principles U S versus Cologne 220 F dot 3 D 48 51 second circuit 2002 citing U S versus Altrum 180 F dot 3 D 372 275 second circuit 1999 and its hornboot contract law that an intended third party beneficiary may enforce a contract C Subaru Distributions Corporation versus Subaru of America Incorporated 425 F dot 3 D 119 124 second circuit 2005 Bo Cheese vs Town of Ponce inlet 405 F dot 3 D 964 982 11 circuit 2005

8:11There is no reason to treat plea or non-prosicution agreements differently from other contracts. If anything second circuit precedent strongly suggests that courts made the part from ordinary contract principles when construing plea agreements only when such departures cut against the government C U S versus Riggy 649 F dot 3 D 143 second circuit 2011 because plea agreements are unique contracts. We temper the application of ordinary contract principles with special due process concerns for fairness and the adequacy of procedural safeguards quoting U S versus Waltman 610 F dot 3 D 37 39 through 40 second circuit 2010 in Altro 180 F dot 3 D 372 375 second circuit 1999 plea agreements are unique contracts. We hold the government to the most meticulous standards of both promise and performance. Original ellipses omitted

9:12quoting U S versus Lawler 168 F dot 3 D 633 636 second circuit 1999 it would turn this doctrine on a TED to DV8 from ordinary contract principles in a manner that benefits the government to the extent the government argues that Ms Maxwell is not a third party beneficiary because the did not mention her by name. That argument should be rejected as this court is held an intention to benefit a third party may be gleaned from the contract as a whole and the party need not be named specifically as a beneficiary 0 in 601 F dot 2 D at 1250 and as the court stated in Florida West a plea agreement is enforceable by a third party as long as the agreement evinces an intent to extend immunity to a definable class of third parties and the third party seeking enforcement falls within this category of beneficiaries 853 F dot supp dot 2 D at 1228 and 29 defendant as a

10:15third party beneficiary could enforce a plea agreement between the government and an air cargo company which immunized unnamed employees of the company's subsidiaries see also stolt nilson 524 f dot supp 2 D at 613 620 defendants as third party beneficiaries could enforce an agreement between the government and stolt nilson which promise leniency to a unnamed directors officers and employees here the NPA grants immunity to any potential co-conspirators of Epstein including but not limited to four named individuals a 178 as the district court recognized this is a definable class that includes miss Maxwell a 144 3 the co-conspirator provision covers any involvement of Maxwell and offenses committed by Epstein from 2001 to 2007 other offenses that were the subject of the FBI and the US Attorney's Office investigation and any offenses that arose from the related

11:18grand jury investigation see a florida west 853 f dot supp dot 2 D at 1228 and 29 all right we're going to wrap up this first episode here and in the next episode we're going to pick up with B the co-conspirators provision of the non prosecution agreement binds the USAO SDNY and a nabi is not to the contrary all of the information that goes with this episode can be found in the description box Dave Roberts here there you are surrounded by fans sharing wings sharing drinks high-fiving random strangers everybody remembers the game nobody remembers the guy coughing behind you until a few days later at 2 a.m. you wake up with the fever and your throats on fire now what urgent care close ER slam telehealth maybe but the pharmacies close you needed a medical emergency kit these aren't first aid kits they contain essential prescriptions used for over 30 common conditions sinus and ear infection uti stomach bug travelers diarrhea

12:20and more on hand before you need them use your doctor develop guidebook to select the right prescription or call their telemedicine doctor standing by it's like an urgent care and drugstore at home when you're sick traveling or stranded you wish you ordered a medical emergency kit order online in minutes and it's shipped to your door and say 45 dollars with my promo code blue at urgentcare kit dot com slash blue that's promo code blue at urgent care kit dot com slash blue what's up everyone and welcome back to the Epstein Chronicles in this episode we're getting right back to Golan Maxwell's brief supporting her motion to appeal her sentence be the co-conspirators provision of the non-prosycution agreement binds the us aosdny and a nabi is not to the contrary embedded within a nabi's canon of construction that prosecutors in one district cannot prosecute in another district is the requirement that there must be a complete absence of

13:21language expressing a broader intention thus if it affirmatively appears that the agreement contemplates a broader restriction anabese restrictive rule does not apply us versus russo 801 f.2d 624 626 second circuit 1986 the language expressing broader intention can be found in the mpa which one explicitly states that the United States also agrees that it will not institute any criminal charges against any potential co-conspirators of Epstein a 178 and two contains a structural separation of this clause from the more restrictive language used elsewhere and three utilizes the expressed language that Epstein intended a global agreement obviously an intent to limit the immunity afforded the co-conspirators easily could have been made explicit by the incorporation of limiting language no such language was utilized and was in fact removed from the co-conspirator clause

14:21a promise to bind other districts can be inferred from negotiations between a defendant and a prosecutor see United States vs. Lessi 554 f2d 1139 1153 and four second circuit 1976 the OPR SA1-348 contains just such evidence of the negotiations between the government and Epstein's Council which in corroborating and intent on the part of the parties to draft a co-conspirator provided broader immunity accords with the plain meaning of the mpa this is so notwithstanding that the OPR relies almost exclusively on the distant recollection of government employees whose judgment and professionalism were a being questioned with little to no input from Epstein's attorneys as to who or what they intended or understood the co-conspirator clause of the mpa CSA166 the government questions why Epstein would have sought a broader grant of immunity

15:24for co-conspirators then for himself br 21 but the answer is provided in the OPR the line prosecutor remembered that defense council told her that Epstein wanted to make sure that he's the only one who takes the blame for what happened SA193 indeed the government believed that Epstein's conduct was his own dirty little secret and did not have any specific evidence against Ms. Maxwell even though they had interviewed Carolyn the complainant in count six and Annie Farmer two of the four women who testified at trial SA193 and had also interviewed Virginia Roberts who the government elected not to call as a witness and of course a broader immunity deal for co-conspirators accomplish what Epstein may not have been able to obtain more directly namely co-conspirator immunity that would have insulated Epstein from criminal prosecutions elsewhere where co-conspirators might otherwise have been forced to testify against them in return for leniency there is no question that the

16:25npa did not contain standard federal plea agreement language SA103fn.120 the co-conspirator clause was in the words of the government unusual even very unusual and pretty weird not surprisingly the first iteration of this clause was proposed by the defense it precluded the initiation of Annie and all criminal charges which might otherwise in the future be brought against for named female assistance or any employee of a specific Epstein corporate entity for any criminal charge that arises of the ongoing federal investigation this demonstrates that from the beginning the defense sought immunity for third parties beyond the SDFL the government responded with a draft proposal that resolved the federal criminal liability of any co-conspirators in the southern district of Florida growing out of any criminal conduct by those persons known to the US AO as of the date of the agreement SA100SA105 however that language limiting co-conspirator immunity to the southern

17:32district of Florida was removed from the final signed npa the intentional excision of this limiting language from the draft version of the co-conspirator clause establishes that that limitation was not included to apply to the co-conspirator clause indeed it is difficult to imagine any clear evidence than the purposeful removal of that limiting language especially as its replaced by the term United States and to punctuate this point the US attorney himself as part of a final review and edit of the mpa instructed the line prosecutor to restore the reference to Epstein's desire to reach a global agreement of his state and federal criminal liabilities the government denies that main justice was involved in the plea negotiations but OPR demonstrates that Andrew C. Laurie deputy assistant attorney general for the department's criminal division and chief of staff to assistant attorney general Alice Fisher was actively participating in a critical phase of the plea negotiations in September from his new post at the department in Washington DC

18:37after his transfer he continued to be consulted on the negotiations and a prize of his status he repeatedly rendered opinions trying to close the deal involving a plea agreement and the npa on September 24th 2007 Laurie now stationed in Washington DC at main justice sent additional comments on the npa's final draft that afternoon the final version was circulated and signed C. the court's failure to hold a hearing on the scope of the non-prossecution agreement is an error what is significant with regard to this issue is a lack of a sufficient record given that the district court ignored the plan language of the co-conspirator clause together with the corroborating evidence from the OPR that establishes that the language was changed to remove rather than add words of limitation the district court's decision to apply a nabby's rule of construction without a hearing was an error this is especially so because the OPR was lacking in relevant information from the fence council as to their understanding of the agreement and in the absence

19:42of such information the district court was obligated to resolve any ambiguities in favor of mismatch well the government argues that based upon a nabby there is no need for a hearing but in fact courts in this circuit have routinely recognized the need for evidentiary hearings where the scope of an agreement is in dispute the failure to hold a hearing precluded mismatch well from offering evidence as to the intent and understanding of defense council as a result the court did not construe the NPA against the government as the law requires but against mismatch well see United States versus Defoe 163 F.3 D725 720 8 second circuit 1998 a review in court must read the NPA's ambiguous provisions against the government which drafted the agreement and enjoys unequal bargaining power in the sentencing process see United States versus L.min 286 F.3 D 86 89 second circuit 2002 United States verse ready 82 F.3 D 551 558 559 second circuit 1996 see also Defoe at

20:52728 in this instance the district court accepted the facts profored by the US Attorney's office of the Southern District of New York and relied on a nabby to preclude any further inquiry thereby eviscerating the exception in US versus Roussa Supra Epstein performed under the NPA in response to the promise of the United States the government having received the totality of the benefit of the bargain elements in the NPA should be held to its terms there is no remedy other than enforcement of the NPA according to its terms or should the court determine that such terms are ambiguous the holding of a hearing should the hearing establish that Epstein understood the co-conspirator clause to be global while the government deemed it reached a mistake or the subject of regret Epstein now dead cannot undo it the government having removed the limiting language in the NPA cannot restrict the NPA in retrospect as it had convinced the district court point number two the district

21:53court erred in crediting a jurors patently dishonest testimony offered to explain false answers to material questions and for dire and further erred in concluding that honest answers to those same questions would have not provided a valid basis to remove the juror for cause juror honesty is a bedrock of the criminal jury system mcdonough power equipment for his greenwood 464 us 548 1984 for dire examination serves to protect the right to a trial by an impartial jury it is designed to expose bias both known and unknown the trial judge has broad flexibility in responding to the allegations of juror misconduct particularly when the incidents relate to statements made by the jurors themselves rather than to outside influences and do not violate the sanctity of jury deliberations a jurors dishonesty during for dire undermines a defendant's right to a fair trial the United States versus dogartist 867 f.supp 2d 445 468 sdny 2012 citing clerk versus United States 289

23:05us 11 11 1933 vacated on other grounds United States versus par 789 f.3d 83 second circuit 2015 a juror 50 can seal material information and for dire by giving false answers on a juror questionnaire and then lied about it to the court in a post verdict hearing juror 50 was given a questionnaire to execute under oath it contained a statement of the case calling attention to the subject of sex trafficking of minors on the fourth page of the document it posed its question in the form of have you ever or anyone else the juror gave the court and counsel sworn false answers on his questionnaire relating to the most sensitive issues in the case us first Langford 990 f.2d 65 68 second circuit 1993 the court held a hearing narrowly confined to an inquiry about the jurors answers on the questionnaire the juror through counsel invoked his fifth amendment privilege and

24:05was granted immunity by the government to the extent he testified truthfully ironically he testified that his false statements on the jury questionnaire were inadvertent hence there was no reasonable basis upon which to invoke his fifth amendment privilege as he was not admitting to having made intentionally false statements and his exposure to perjury charge existed without an immunity deal this immunity deal was a Potemkin's village providing only the veneer of credibility the court repeatedly noted that the immunity deal provided juror 50 a strong incentive to testify truthfully when in fact it provided only a strong incentive to offer testimony that would satisfy the government's interest and preserving the verdict there can be no dispute that juror 50's testimony established conclusively that he falsely answered three separate questions on the jury questionnaire question 25 48 and 49 it's no coincidence that juror 50 gave false answers to these questions and only these questions there were questions that had he answered truthfully would have revealed

25:10his prior sexual abuse juror 50 testified that he inadvertently answered incorrectly all and only the questions that would have elicited information about his child's sexual abuse in response to the court's inquiry as to whether he could be a fair and impartial juror he replied by a wrote in the affirmative his answers and explanation were incredible ever shifting and even outright contradictory he attributed his false answers to having simply misread questions because he was tired and distracted but then claimed that one answer was predicated on his view that his step brother was not a family member and another on his view that he did not consider that his sexual assault made him a victim of a crime an explanation that made sense only if he had actually read and understood the questions in the first instance juror 50's testimony was incredible as a matter of law but the court found that the jurors false statements were an inadvertent mistake the court refused to inquire as to the jurors post trial activity that included multiple media interviews about the

26:14his own experience as a victim of sexual abuse played in his role as a juror on the case nor with the court inquire about juror 50 statements concerning a second jurors on disclosed sexual abuse juror 50's pretrial selective false answers only to questions that would have elicited his child's sexual abuse his post verdict activity and his patently false and contradictory explanations in the post verdict hearing should have disqualified him for service as a juror in this case all right folks we're going to wrap up right there and in the next episode talking about the topic we're going to pick up with B had juror 50 disclosed and void dire his traumatic experience as a victim of child sex abuse the information would have established a valid basis for a cause challenge all of the information that goes with this episode can be found in the description box Dave Roberts here there you are surrounded by fans sharing wings sharing drinks high-fiving random strangers everybody remembers the game nobody remembers the guy coughing behind you

27:18until a few days later at 2 a.m. you wake up with the fever and your throats on fire now what urgent care close ER slam telehealth maybe but the pharmacies close you needed a medical emergency kit these aren't first aid kits they contain essential prescriptions used for over 30 common conditions sinus and ear infection UTIs stomach bug travelers diarrhea and more on hand before you need them use your doctor develop guidebook to select the right prescription or call their telemedicine doctor standing by it's like an urgent care and drugstore at home when you're sick traveling or stranded you wish you ordered a medical emergency kit order online in minutes and it's shipped to your door and say 45 dollars with my promo code blue at urgent care kit dot com slash blue that's promo code blue at urgent care kit dot com slash blue what's up everyone and welcome back to the Epstein chronicles in this episode we're going to get right back to the galeine max well filing where she argues why the appeals court should grant her an appeal B had ger 50 disclosed

28:24and for a dire his traumatic experience as a victim of child sex abuse the information would have established a valid basis for a cause challenge at the hearing ger 50 disclosed the facts of his sexual abuse which significantly parallel the abuse described by the government's four key victim witnesses at trial like the four accusers ger 50 one was sexually abused as a minor two was abused on multiple occasions over the course of several years and three delayed reporting the abuse a 267 and 268 like the four accusers ger 50 was abused by two people who were friends and who each had participated in the abuse a 267 further more a ger 50 was not abused by a stranger or sexually assaulted by someone he did not know like the four accusers he was sexually abused by someone familiar to him namely a stepbrother these similarities are significant and contrast sharply with other jurors who answered yes to question number 48 and we're not struck for cause but who

29:29disclosed incidents that were not directly analogous to the facts presented at trial in this situation where ger 50 experienced the same traumatic childhood sexual abuse that the trial victims had experienced with many of the same surrounding circumstances he was not capable of setting his experience aside and impartially deciding the case solely on the evidence at trial see the guard is 867 fsupp 2d at 472 courts imply bias when there are similarities between the personal experiences of the juror and the issues being litigated quoting United States for a Samsung a 20 f.supp 2d 151 163 through 64 d mass 2011 samson verse the us 724 f.3d 150 167 for circuit 2013 it would be natural for a juror who had been the victim of the same crime the harbor bias against the defendant accused of such a crime

30:31had this information come to light during board dire juror 50 would have been struck for cause samson 724 f.3d at 167 a firm in grant of a new trial when juror in a gunpoint bank robbery case did not disclose that she had been threatened by her husband with a gun state versus ash far 196 a dot 3d 93 94 through 97 new hapscher 2018 a firm in grant of a new trial when juror in child sexual assault case did not disclose that he was sexually assaulted by a babysitter when he was 5 or 6 years old us versus torres 128 f.3d 38 47 through 48 second circuit 1997 a firming for cause strike of juror in a structuring case who did not disclose she engaged in similar structuring activity herself Burton versus Johnson 948 f.2d 1150 1159 10 circuit 1991 a firming

31:35grant of new trial when juror in murder case involving domestic violence did not disclose she was living in similarly abuse of circumstances at the time of the trial inexplicably the court held that based on the answers of the juror at the hearing he would not have been excused for cause even if he had disclosed his childhood abuse during vordire the court's determination that it would not have granted a challenge for cause of the juror had he given truthful answers is an abuse of discretion demonstrated bias in the response to questions in vordire may result in a juror being excused for cause the necessity of truthful answers by perspective jurors is obvious if this process is to serve its purpose the failure to provide truthful answers is itself a proper challenge after the hearing the court held that the juror was entitled to use his life experiences in deliberations even though the life experiences mirror testimony at trial and were particular to the charges against Maxwell but when a juror has life experiences that correspond with evidence

32:38presented during trial that congruence raises obvious concerns about the jurors possible implied or inferred bias us versus torres 128 f.3d at 47 and 48 see Burton versus Johnson 948 f.2d 1150 1158 through 1159 10th Circuit 1991 that bias went on explored at the hearing resulting in the failure of the court to take proper steps to screen the juror for bias after the verdict a conviction will only be reversed if the district court abused its discretion by incorporating an error of law or arresting its decision on a clearly erroneous factual finding here about the court's finding that juror 50 was credible clearly erroneous factual finding and it's ruling that juror 50's truthful answers during vordire would not have established a valid basis for cause an error of law meet that standard for abuse of discretion see the district court abused its discretion and imposing unreasonable

33:41limitations on the range of questions it agreed to pose to juror 50 at the post verdict hearing the court's decision to narrow the scope of the hearing to questions relating only to the jurors false responses to the juror questionnaire was an abuse of discretion because it deprived Maxwell of a full and fair opportunity to establish juror 50's bias for example the court refused to take juror 50 why he disclosed to the jury that he was a victim of sexual assault according to juror 50 coming to a unanimous verdict wasn't easy to be honest in fact several jurors doubted the credibility of Jane and Carolyn when I shared that I had been sexually abused recounted juror 50 the jurors who had doubts were able to sort of come around on and they were able to come around on the memory aspect of the sexual abuse docket 613 at 14 the standard of review applies to questions that the court decides to ask or not ask a juror the court recently emphasized that a court's discretion is not boundless in this regard see us versus neavis 58 f.4 623 626 second

34:48circuit 2023 the discretion must be exercised consistent with the essential demands of fairness united states verse barn 604 f.2d 121 137 through 38 second circuit 1979 quoting all dredge versus united states 283 us 308 310 1931 see also united states verse bright 2022 WL 53 621 at one second circuit January 6 2022 the defense deserves a full and fair opportunity to expose bias or prejudice on the part of the niroman united states verse columbos 869 f.2d 149 151 second circuit 1989 quoting barns 604 f.2d at 139 niavis at 632 niavis stands for the proposition that there must be sufficient fact finding to allow for facts probative of the three forms of bias to reveal themselves otherwise a violation of fundamental

35:52or rises if the board dire is not adequate to identify unqualified jurors here the inquiry by the court at the post verdict hearing failed to provide a full and fair opportunity to expose bias while it need not give the defense lawyers the opportunity to question the juror it must fulfill its constitutional duty to eliciting sufficient information to allow a determination of whether a challenge to the juror for cause should be made us versus grier 285 f.3d 158 second circuit 2002 set out the types of bias that produce proper cause challenges cause challenges are generally based on one of three species of bias one actual bias or bias in fact to implied bias or bias that is presumed as a matter of law where a typical person in the jurors position would be biased irrespective of whether actual bias exists and three in furrible bias which arises when a juror discloses a fact that bespeaks a risk of partiality sufficiently significant to warrant granting the

36:57trial judge discretion to excuse the juror for cause but not so great as to make mandatory a presumption of bias 285 f.3d at 171 and 172 all three forms of bias must be grounded in facts developed at vore dire torres 128 f.3d at 47 the bias implied by jurors false answers went unexplored neavis turned on the court's failure to explore juror bias related to gangs a prejudice analogous to the systematic or pervasive bias in the community against accused sex traffickers and those who can sort with them Maxwell tied to Epstein by media coverage went to trial against a constant drumbeat of news and allegations concerning child molesters and sex trafficking far more pervasive than fear of gang violence was fear and revulsion as to the child sex abuse and trafficking of which Epstein and then Maxwell became the poster child in the hearing and despite the fence suggested

37:57questions the court refused to explore juror 50's child sexual abuse for bias to assess a challenge for cause as to this seated juror after trial the court should use the same standards for cause challenges at trial to do otherwise would appear to shield the verdict rather than the defendant from improper juror bias as in neavis the juror's omitted information related to a material issue and was at trial the cornerstone of the government's theory there was a strong likelihood that the material issue would skew deliberations considering the strong feelings that sex trafficking of minors engenders see neavis see also barns 604 f.2d at 137 through 139 the court deprived Maxwell unfairly of the opportunity post trial to unearth the pervasive bias relevant to the issues pivotal to the case against her all right folks were in a wrap up right there and in the next episode we're going to finish off this document all of the information that goes with this episode can be found in the

38:58description box what's up everyone and welcome back to the Epstein chronicles in this episode we're going to finish off cologne Maxwell's brief as to why she should be granted an appeal the juror 50's actual implied an infeuroble bias was established davor obert here there you are surrounded by fans sharing wings sharing drinks high-fiving random strangers everybody remembers the game nobody remembers the guy coughing behind you until a few days later at 2 a.m. you wake up with the fever and your throats on fire now what urgent care close er slam telehealth maybe but the pharmacies close you needed a medical emergency kit these aren't first aid kits they contain essential prescriptions use for over 30 common conditions sinus and ear infection uti stomach bug travelers diarrhea and more on hand before you need them use your doctor develop guidebook to select the right prescription or call their telemedicine doctor standing by it's like an urgent

39:58care and drugstore at home when you're sick traveling or stranded you wish you ordered a medical emergency kit order online in minutes and it's shipped to your door and say 45 dollars with my promo code blue at urgent care kit dot com slash blue that's promo code blue at urgent care kit dot com slash blue Maxwell does not seek a per se rule of exclusion of victims of child abuse insect trafficking cases although admittedly it would be difficult to imagine how such a traumatic experience could fail to give rise to an infeurable bias certain life experience create permanent biases nevertheless it is the juror in this situation that the law would properly cautiously incapacitate because persons in such a situation would naturally feel prejudice in his post verdict interviews juror 50 admitted as much when he described how he identified with the government witnesses through the lens of his own experience of child sexual abuse convinced other jurors to credit the testimony of government witnesses and discredit defense witnesses precisely because of his unique insight

41:03about memory for child sexual assault and bonded so profoundly with the government witnesses that he felt compelled contact one after trial and to give interviews about his own experience suffice to say this was not an example of an impartial juror using his life experiences in the performance of his civic duty contrary to the court's view a 352 juror 50 had no such relationships to the parties counsel or the very crime itself but his emissions during voire dire presented the sort of extreme situation that would qualify for presumptive bias torres at 46 the average person victimized by sexual abuse would be biased when he speaks about his healing process his trauma and his need for therapy to deal with the stress of the Maxwell case in determining whether a juror should be excluded on the grounds of implied bias a juror's statements and voire dire are completely irrelevant the juror made declare that he feels no prejudice in

42:05the case but the law cautiously incapacitates him from serving on the jury because in general persons in a similar situation would feel prejudice us versus burr 25 federal case 49 and 50 cc virginia 1807 it's called the average person test c us vs hans 398 f2d 980 984 second circuit 1968 Dennis vs the us 339 us 162 176 1950 juror 50 fills the test Smith vs. Philip's 455 us 209 to 222 1982 O'Connor J. concurring led this court to caution that automatically presumed bias deals mainly with jurors who are related to the parties or who are victims of the alleged crime itself i.d quoting torres 128 f.3d at 45 but this limited set of examples is not exclusive and while sex abuse victims who timely disclose their victimization may not be presumed biased jurors who do not disclose

43:10their victimization thereby depriving the court and counsel of vital information as the challenges for cause or preemptory challenges create the extreme situation warned about by justice O'Connor and the torres court see also niebus this court has also recognized the third form of partiality known as inferrable bias applicable in a few circumstances that involve no showing of actual bias and that fall outside of the implied bias category where a court may nevertheless properly decide to excuse a juror torres 128 f.3d at 46 and 47 the garris 867 fsupp 2d at 475 bias may be inferred when a juror discloses a fact that bespeaks a risk of partiality sufficiently significant to warrant granting the trial judge discretion to excuse the juror for cause but not so great as to make a presumption of bias mandatory torres at 43 and 47 and torres the second

44:13circuit decline to consider the precise scope of a trial judge's discretion to infer bias the circumstances herein present a scenario in which bias is inferred from the non-disclosure of critical potentially disqualifying information at the time of or dire because the risk of partiality is sufficiently significant to excuse the juror for cause based on non-disclosure because in such cases the bias of a juror will rarely be admitted by the juror himself partly because the juror may have an interest in concealing his own bias or partly because the juror may be unaware of it partiality necessarily must be inferred from surrounding facts and circumstances McDonough 464 US at 558 Brennan J concurring juror 50 claims to have connected his history with the charges in the case despite the description in the questionnaire the implausibility of the explanation that he did not see the key questions related to sex abuse in his belief that they only applied to the others and to not him beggars belief since the process was to determine if he was

45:18qualified to be a juror the court in accepting his answers was credulous willing to trust the jurors answers almost uncritically the court also ignored existing authority for the proposition that a new trial may still be ordered separate from the McDonough prongs if the defendant can show bias c.e.g. Jones Cooper 311 f.3d 306 310 4th Circuit 2002 a showing that a juror was actually biased regardless of whether the juror was truthful or deceitful can also entitle a defendant to a new trial Skags vs Otis elevator company 164 f.3d 511 516 10 circuit 1998 the advent of the McDonough test did not eliminate a litigants broader historic right to prove actual or imply juror bias in McDonough itself justices black men Stevens and O'Connor concurred separately to clarify that jurors' partiality could still be proven by showing actual or implied bias McDonough 464 US at 556 while the

46:24McDonough court highlighted the importance of vore dire process as a guard against juror bias it also noted that no trial is perfect and that counsel has a responsibility to obtain relevant information from prospective jurors 464 US at 554 and 555 while the court unfairly limited the inquiry into juror 50's bias the record nevertheless aptly demonstrates that juror 50 give intentionally false statements under oath in his juror questionnaire to conceal that he had experience childhood sexual abuse identical to that experience by the victims in the case and lie to conceal his misconduct at the hearing the court abused its discretion and not granting Ms. Maxwell a new trial point number three the district court earned sentencing Ms. Maxwell the government defends the court's decision to apply a four level leadership enhancement under section 3b1.1 of the sentencing guidelines however the trial evidence did not support a finding that Ms. Maxwell was an organizer or leader

47:26of criminal activity that was otherwise extensive because there was no evidence that she supervised another criminal participant specifically the court's finding that Ms. Maxwell supervised Sarah Kellan who the government claimed was a criminal participant but chose not to indict is unsupported by the record see BR 77 this error coupled with the courts' value to provide reasons for its upward variance as required by us code 18 section 3553 see to requires that Ms. Maxwell be resentanced to qualify for an adjustment under this section the defendant must have been the organizer leader manager or supervisor or of one or more participants c us s g section 3b1.1 the government at sentencing correctly conceded that there was no direct evidence that Maxwell supervised Kellan a 406 the two pilots did not know who Kellan worked for and waffled in their testimony TR 204 but Kimberly

48:27Esponosa did in fact according to Esponosa by the time Kellan began working for Epstein in 2001 2002 Ms. Maxwell and Epstein went their separate ways and Kellan sat in the office where Ms. Maxwell used to sit and managed Epstein's properties Caroline corroborates this fact when she testified that there was a clean break in time between when she dealt with Maxwell and when she dealt with Kellan there is quite simply not a single witness that testified that Ms. Maxwell supervised Kellan in any capacity much less in connection with anything of a criminal nature nor does there exist an earlier version of the 2005 household manual a test it to by Wanda Lessi or flight record supporting a finding that Ms. Maxwell supervised Sarah Kellan as a criminal participant this is the thin gruel upon which the court based its findings C.A.417 and it is simply not sufficient to support the enhancement even by a preponderance of the evidence conclusion for the reason stated here and then points

49:28one and two of Ms. Maxwell's principal brief the conviction should be reversed and the indictment or a portion thereof be dismissed and a new trial ordered on any remaining counts alternatively for the reason stated in point one the matter should be remanded to the district court for a hearing for the reason stated and points two point two herein and point four of Ms. Maxwell's principal brief the conviction should be reversed and the matter remanded for a new trial alternatively for the reason stated in point three of Ms. Maxwell's principal brief point two herein the matter should be remanded to the district court for a hearing for the reason stated in point five of Ms. Maxwell's principal brief point three herein the matter should be remanded to the district court for resentencing this document was dated July 27th 2023 and it was signed by Diana Fabi Samson all right folks that's going to do it for Glan Maxwell's brief as to lie she should get an appeal

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