United States v. Maxwell

MEMORANDUM OPINION & ORDER

ALISON J. NATHAN UNITED STATES DISTRICT JUDGE

The Defense on December 12, 2021, moved to permit three anticipated witnesses to testify under a pseudonym or their first names only. The Government filed a letter opposing this request on December 14, 2021. The Defense's primary contention is that some form of anonymity for its witnesses is justified by the same reasons that the Court permitted three alleged victims and two related government witnesses to testify under pseudonyms. The Court disagrees with this basic premise and denies the Defense's motion.

“By convention, most witness examinations begin with an introduction of the witness to the fact finder, including the witness's name, education, residence, work history, family etc. Such background gives the fact finder some insight into who the witness is while also serving to steady the witness's nerves.” 30 Wright & Miller, Federal Practice & Procedure, Evidence § 6408 (2d ed. 2021); see Alford v. United States, 282 U.S. 687, 691-92 (1931). That presumption of identification is based, in part, on the “firmly established” principle that “the press and general public have a constitutional right of access to criminal trials . . . embodied in the First Amendment.” Globe Newspaper Co. v. Superior Ct. for Norfolk Cnty., 457 U.S. 596, 603 (1982). “There are rare instances, however, when it may be appropriate . . . to preclude . . . inquiring into the witness's identity and background.” Wright & Miller, supra, § 6408.

2

At a conference on November 1, 2021, the Court granted the Government's motion in limine to permit alleged victims to testify under pseudonyms and, as a consequence, to redact their real identities from exhibits. Nov. 1 Tr. at 6. That motion was granted for two primary reasons. First, the Court has a statutory duty to protect an alleged crime victim's “right to be treated with fairness and with respect for the victim's dignity and privacy.” 18 U.S.C. § 3771(a)(8). Nov. 1 Tr. at 6-7. Because of the “sensitive and inflammatory nature of the conduct alleged” the Court found that pseudonyms were necessary to protect that right. Id. at 8. Second, if alleged victims of abuse were subject to publicity, harassment, and embarrassment, “other alleged victims of sex crimes may be deterred from coming forward” to report abuse. Id. The Court emphasized that the Government's proposal is “quite common” among courts in this circuit, citing six such cases. Id. at 7-8. As a consequence of protecting alleged victims, the Court further permitted pseudonyms for several witnesses that were not alleged victims themselves “because the disclosure of their identities would necessarily reveal the identities of the alleged victims.” Id. at 8.

These reasons for granting the Government's prior motion do not apply to the Defense's present request. Based on the current proffer, none of the Defense's witnesses intend to testify to sensitive personal topics or sexual conduct. Rather, they all are anticipated to deny misconduct by Epstein and Ms. Maxwell, and therefore do not qualify as victims under § 3771. Further, there is no similar concern, as there are for alleged victims of sexual abuse, that denying the use of pseudonyms will deter reports of misconduct.

It is notable that the Defense does not cite in support of its motion a single case in which a court granted the use of pseudonyms to defense witnesses. Neither does the Government. And nor could the Court after significant independent research. It appears, then, that the Defense's

3

requested relief is unprecedented.

The Defense raises several specific arguments in favor of its unprecedented request. First, the Defense argues that anonymity is necessary to protect its witnesses from scrutiny and harassment because of the significant publicity this case has garnered. But these generalized concerns are present in every high-profile criminal case. They do not present the rare circumstances that prior courts have found justify the use of pseudonyms. Further, the alleged victims that received pseudonyms during the Government's case have a statutory right to have their “dignity and privacy” protected. 18 U.S.C. § 3771(a)(8). The Defense's witnesses have no similar right.

Perhaps most analogous to Defendant's request is United States v. Rainiere, United States v. Rainiere, No. 18-CR-204S1 (NGG), 2021 WL 4522298 (E.D.N.Y. Oct. 4, 2021), another high-profile case involving alleged sexual misconduct. There, after a defendant pled guilty, the defense sought to keep letters submitted in support of the defendant at sentencing anonymous, arguing that anonymity was necessary because “the authors of supportive letters may face...