EFTA00102335.pdf

LB1TMAX1 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 precluding the term "victim" is both unnecessary and impractical. United States v. Dupigny, 18 CR 528, transcript of October 17, 2019, Docket No. 198 at 50. It is appropriate for the government to use the terms as representative of its litigating position. If the government does this in any way that is atypical or unduly prejudicial, I will revisit. Defense only cites out-of-circuit or state court decisions for the proposition that those terms are inherently prejudicial and harm the presumption of innocence. Numerous courts of appeal disagree with that argument, particularly when the presentation of evidence and the court's instructions "taken as a whole clarify the government's burden of proving all elements of the crime." United States v. Washburn, 444 F.3d, 1007, 1113 (8th Cir. 2006); see also, Server v. Mizell, 902 F.2d 611, 615, (7th Cir. 1990); United States v. Granbois, 119 F.App'x 35, 38-39 (9th Cir. 2004). Defendant's lone district court opinion does not tip the balance of this authority. I will, of course, instruct the jury repeatedly that the defendant is presumed innocent and that it is the government's burden and the government's burden alone to prove guilt beyond a reasonable doubt. Those instructions will eliminate any potential prejudice. See again Judge Furman's decision in Dupigny, Docket No. 198 at 49 That matter resolved, I will turn to the government's first motion. This goes to pseudonyms. The government moves SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00102335 LB1TMAX1 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 pursuant to the Crime Victims Rights Act, 18 USC Section 3771, to permit certain witnesses and certain non-testifying witnesses to be referred to by pseudonyms. And there is also the issue of redacting related exhibits that contain the names or specifically identifying information. Specifically, the government requests that eight individuals be referred to by pseudonyms or their first name. The defense is already aware of the identities of all of these individuals, and as the government proposes it, the jury will also be aware of the individuals' real identities. The request only implicates how those individuals are referred to in open court. This is well-tread territory, and I will grant the request for the following reasons: The burden to justify this type of request, of course, starts with the government. It "must provide a reason for the limitation." United States v. Marcus, which is 2007 WL 330388 at *1, an Eastern District decision citing United States v. Marti, 421 F.2d 1283 (2d Cir. 1970). I agree with the government that limiting disclosure here would protect the alleged victims from potential harassment from the media and others, undue embarrassment and other adverse consequences. The Court has an obligation under the Crime Victims Rights Act to take certain measures at trial to protect the dignity and privacy of alleged victims. 18 USC SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00102336 LB1TMAX1 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Section 3771(a)(8). It is quite common for alleged victims, both in cases that have garnered media attention and those involving allegations of sex abuse, to testify or be referred to by pseudonyms or first names. Courts have allowed this whether or not the alleged victims are minors or adults or adults testifying about abuse that allegedly occurred when they were minors. Let me give a bit of a string cite here. See, for example, United States v. Kelly, No. 19 CR 286, which is a high publicity trial involving adults testifying about sex abuse as minors, and that's in the Eastern District of New York; United States v. Raniere, No. 18 CR 204, a high-publicity trial involving at least one adult testifying about sex abuse as minor; United States v. Dupigny, No. 18 CR 528, involving sex trafficking, United States v. Kelly, No. 7 CR 374, and that could be found at 2008 WL 5068820, which is an Eastern District case involving an adult testifying about sex abuse as a minor; United States v. Graham, No. 14 CR 500, found at 2015 WL 6161292 (S.D.N.Y., October 2015), that involved adults testifying about sex trafficking as minors; United States v. Gardner, No. 16 CR 20135, found at 2016 WL 5404207, an Eastern District case from 2016 involving adults and adults testifying about sex abuse as a minor, and collecting similar cases. The practice has been widely permitted because SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00102337 LB1TMAX1 requiring alleged victims to publicly provide their names could 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 chill their willingness to testify for fear of having their personal histories publicized. Raniere, Docket No. 622 at 32. Given the sensitive and inflammatory nature of the conduct alleged, such publicity may cause further harassment or embarrassment, and other alleged victims of sex crimes may be deterred from coming forward. See, Martinez, 17 CR 281, (E.D.N.Y. 2017), Docket No. 34. Limiting the disclosure of alleged victims' identities in this case furthers these important interests. The same is true with the identities of certain witnesses, although not alleged victims themselves, because the disclosure of their identities would necessarily reveal the identities of the alleged victims. I'm not persuaded by defense counsel's arguments to the contrary. First, the defense notes that Ms. Maxwell does not pose a threat to any of the witnesses. That is plainly true, and the government does not argue or suggest or allege otherwise, but just because that reason for limiting disclosures is absent in this case does not eliminate the possibility of other justifications. And again, there is a need here to prevent undue embarrassment, harassment from the press and third parties, and any resistance of others to come forward and report alleged abuse. Cases establish that this is sufficient SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00102338 LB1TMAX1 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Moreover, any potential prejudice in this regard can be cured with an appropriate instruction explaining that the reason for the precaution is regard for the witnesses' and alleged victims' privacy, and that no inference can or should be drawn against the defendant because of these precautions My colleagues in this district and elsewhere have used such an instruction in similar cases. The defense's concern that this sort of instruction affords "Court-sanctioned sympathy and credibility" is unfounded. My instructions on the law will clearly and repeatedly instruct the jury on the presumption of innocence and their sole role in assessing witness credibility Nor am I persuaded by the defense's arguments that the fact that some alleged victims have previously publicly disclosed some of their allegations obviates the need to limit disclosure. As another district court has held, "just because some victims' names are publicly available does not mean that the details of their experience are already available." Raniere, Docket No. 662 at 34, n. 17 As I acknowledged in my protective order for this case, "Not all accusations and public statements are equal. Deciding to participate in or contribute to a criminal investigation or prosecution is a far different matter than simply making a public statement relating to Ms. Maxwell or Jeffrey Epstein." Docket No. 37 in this case at 2. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00102339 IC LB1TMAX1 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The government anticipates that the alleged victims will "testify in explicit detail and/or be the subject of highly sensitive and personal testimony concerning illegal sexual abuse. Thus, there's good reasons to limit public disclosure of their names and specifically identifying information during trial in this highly publicized case involving highly sensitive issues." Since there is a valid reason to limit disclosure in this case, the defense must proffer a particularized need for the disclosure of the relevant information, which is weighed against the risks to the witnesses. I'll cite here, for example, United States v. Marcus, again citing the Second Circuit case in United States v. Marti. As both parties acknowledge, the government's request potentially implicates the defendant's right under the Sixth Amendment's confrontation clause which guarantees defendants the right to cross-examine adverse witnesses. The Second Circuit has identified two central interests defendants have in the public airing of identifying information about witnesses. Again referencing the Marti case, 421 F.2d 1263. The first is not relevant here because, as I have noted, the defense is aware of the alleged victims' and witnesses' identities. The defendant argues that the second interest, however, is implicated. Namely, defense may need the witness SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00102340 LB1TMAX1 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to reveal identifying information because knowledge of that information by the jury might be important to its deliberations as to the witness's credibility or knowledgability. That's quoting the Marti case again. In particular, the defense argues that revealing the alleged victims' and witnesses' identities is necessary to probe the nature of the alleged victims' occupations as relevant to the credibility and elicit certain impeachment evidence. I agree that such cross-examination cannot be unduly limited and the government concedes the same. The government's motions in limine 15, n. 6; government reply at 17 to 18. And I will ensure that it is not. My decision today grants the government's request to limit the public disclosure of the alleged victims and some witnesses' names and other specifically identifying information, such as the specific names of current and past employers, names of family members and addresses. Limiting disclosure of the specifically identifying information does not limit the anticipated cross-examination that the defense described in its papers. All lines of inquiry the defense outlined in its response are available without disclosing specific names of employers or other specifically identifying information. For example, the defense can probe the genre, nature, and trajectories of witnesses' careers without eliciting the specific employer name, but the defense's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00102341 12 LB1TMAX1 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 cross-examination should not include specifically identifying information, and counsel must act responsibly doing so. If, after good faith effort in that regard is made and the defense at some point feels they have hit a wall and can articulate a specific need with respect to a particular line of questioning, they can reraise the issue with opposing counsel and with me. So that's my ruling on that motion. That said, I do strongly encourage the government to speak candidly with the anticipated witnesses so that they're clear eyed about what this process will entail, the fact that cross-examination will not be curtailed beyond the specific identifying information that form the basis of the government's request, and the possibility that despite these measures their identities may become known and revealed to the public. Should any of those witnesses or the government choose not to proceed by pseudonym, the government shall let defense counsel and the Court know. In the meantime, the government and defense counsel shall confer about names that will be used and any additional process for facilitating the clear presentation of evidence. The Court will adopt a clear and straightforward approach and the parties are admonished to come to agreement on the use of pseudonyms and/or first names. First assignment, there will be others, by November 10 the parties shall submit a joint letter to the Court under seal explaining the nomenclature that they propose be employed with SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00102342 LB1TMAX1 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 respect to the actual identity of each witness. As I mentioned, I do agree with the government that limiting instruction explaining the reasons for the precautions is appropriate. In light of my ruling, I expect the parties to confer and jointly propose such a limiting instruction. Homework No. 2. This shall also be filed jointly by November 10, and that can be filed on ECF. There are some logistics of voir dire related to this. Some of my colleagues have used the list method that the government proposes on page 15, footnote 5 of their motion, and I agree that this proposal makes sense. Once again, the parties shall confer and submit on ECF by November 10 a joint proposal for any logistical issues related to this for voir dire. That leaves the issue of sealing unredacted exhibits and the limited redacting of exhibits containing specific personal identifying information. The government shall manage the logistics of this process throughout trial. So think through and include in your November 10 submission on ECF the specifics of this part of the process so that the trial exhibits can be contemporaneously marked with the appropriate limited redactions, and the government will need to manage this on an ongoing basis throughout trial. Government's motion 2, the alleged victims' prior consistent statements. So this goes to the admissibility of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00102343