DOJ-OGR-00003791.jpg

Case 1:20-cr-00330-PAE Document 212 Filed 04/16/21 Page17 of 20 that Giuffre possessed in February and March 2016. Under Judge Sweet’s pre-deposition order, Giuffre should have turned these documents over to Maxwell before the April 2016 deposition. Giuffre’s failure to turn the documents over, despite Judge Sweet’s order, is compelling evidence that Boies Schiller was acting as an agent of the state for Fifth Amendment purposes when deposing Maxwell. At the very least, the possibility cannot be dismissed out of hand, and an evidentiary hearing is appropriate. The government’s second argument is that Maxwell waived her Fifth Amendment right. Resp. at 100. Not so. A waiver is valid only if it is knowingly made. United States v. Taylor, 745 F.3d 15, 23 (2d Cir. 2014). And “‘knowing’ means with full awareness of the nature of the right being abandoned and the consequences of abandoning it.” /d. Here, Maxwell did not knowingly waive her Fifth Amendment right. She declined to invoke it based on the protections afforded to her by the Protective Order, and on the understanding that the government was not actively investigating her. That understanding, as it turned out, was incorrect, but it was a misunderstanding deliberately encouraged by Boies Schiller with cooperation from the government. If Boies Schiller had disclosed that material Judge Sweet ordered them to disclose, Maxwell would have invoked her Fifth Amendment right and avoided the perjury trap the government and Boies Schiller set for her. It is for this reason that the government fails in its attempt to distinguish United States v. Oshatz, 700 F. Supp. 696 (S.D.N.Y. 1988). Resp. at 102. The government says that the logic of Oshatz does not apply because the defendant there had already been indicted whereas here, Maxwell was deposed “over two years before the Government opened its investigation.” Resp. at 100; id. at 102 (noting that the defendant in Oshaiz “had already been indicted at the time of his deposition in a civil case for almost seven months’’). Of course, this argument depends on the 12 DOJ-OGR- 00003791