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FILE – In this Nov. 7, 1991, file photo Ghislaine Maxwell, daughter of late British publisher Robert Maxwell, reads a statement in Spanish in which she expressed her family’s gratitude to the Spanish authorities, aboard the “Lady Ghislaine” in Santa Cruz de Tenerife. Maxwell, a British socialite who was accused by many women of helping procure underage sex partners for Jeffrey Epstein, has been arrested in New Hampshire, the FBI said Thursday, July 2, 2020. (AP Photo/Dominique Mollard, File)

As was widely reported yesterday, and covered by me in this story, Ghislaine Maxwell was arrested after being charged in a federal indictment with six crimes related to her sexual child abuse connected to her long-time relationship with convicted pedophile Jeffrey Epstein.  Epstein hanged himself last year in a New York detention facility while awaiting trial on new criminal charges that had been filed against him by the same federal prosecutors in the Southern District of New York.

It was disclosed during the hearing that Maxwell was arrested at a million dollar mountain residence on 56 acres of land in New Hampshire that she recently purchased, reportedly paying cash for the property and using a “limited liability company” to shield public disclosure of her ownership.  An FBI spokesman noted that the Bureau had been keeping tabs on her whereabouts recently, and that is how they came to discover her purchase of the property. The stated that she had been used false names to take delivery of packages at the property.

Federal criminal procedure rules provide that a person indicted in one federal judicial district, but arrested in different federal judicial district, must be taken without undue delay before the nearest federal magistrate or judge for the purpose of making an “initial appearance” on the charges filed.  Maxwell made her appearance via video conference yesterday afternoon in New Hampshire.

The purpose of this hearing is three-fold.  First, to confirm that the person arrested is the same “Ghislaine Maxwell” who is charged in the Southern District of New York.  This is called an “Identity Hearing”, and is typically satisfied simply by the Defendant “admitting” she is the “Ghislaine Maxwell” named in the warrant and indictment. A second purpose of the hearing is to confirm that she has counsel to represent her at all future court appearances.  The third purpose of the hearing is to determine how it is she will get from New Hampshire to New York — whether she would be released on bail and allowed to travel there on her own, or if she would be detained in the custody of the US Marshal, and transported by them to New York for her next appearance.

Prior to the hearing the prosecutors had requested that she be detained in custody, and transported to New York by the US Marshal.  After hearing from both sides, the federal judge in New Hampshire agreed with the government, and Maxwell was ordered to remain in custody and taken by the US Marshal to New York.

She will still have an opportunity to seek release on bail conditions when she appears in New York, however, several factual allegations were made in the government’s motion to detain, as well as during the course of the hearing might make it difficult for Maxwell to convince a federal judge in New York she is not a “flight risk.’

First, the government pointed out that she holds three valid passports — US, France, and Great Britain.  She has made 15 international trips in the last three years, and has a network of friends around the world.  She has multiple residences which she owns, as well as access to residences of friends available to her in locations all over the world.

She has transferred funds among as many as 15 different bank accounts, and balances in those accounts have varied from $500,000 up to $20 million.  She has used variations of her name in recent travels, and has attempted to hide her location in various manners such as purchasing the estate in New Hampshire in a cash transaction through the use of an LLC as legal title holder.

But, as I noted in my story yesterday, there are some oddities about the specific choices made by the prosecutors with respect to the charges filed against her.  One that occurred to me after my story yesterday is the question about the statute of limitations on the two conspiracy counts she is charged with.  One conspiracy count involves “enticing” and “grooming” the minor girls for purposes of having them engage in illegal sex acts, and the second conspiracy charge involves the “transportation” of the minor girls with the intent that they engage in illegal sex acts.  Both those “conspiracy” counts are charged under the “general” conspiracy statute — 18 U.S. C. Sec. 371, which makes it a crime to conspire with another to violate any federal law.  That statute carries a maximum penalty of only five years — substantially less than she is facing for the “substantive” counts of “enticing” and “transporting” which carried longer maximum sentences.

But, a somewhat “open” question for me is what statute of limitations applies to the Sec. 371 conspiracy charge.  Normally the statute on Sec. 371 begins to run on the date of the last act in furtherance of the conspiracy, and expires after 10 years.  The conspiracies as charged in the indictment are said to have ended in or around 1997, so the statute of limitations would have run in 2007 — 13 years ago.

But there is a special statute passed by Congress, 18 U.S.C. Sec. 3283, which extends the statute of limitations for “any offense involving the sexual or physical abuse, or kidnaping, of a child under the age of 18 years” by making such a crime subject to prosecution during the life of the child.

But there is a bit of a “semantics” issue here — a “conspiracy” is an agreement to violate another law.  Violation of that other law is not necessarily a part of the offense.   So to the extent that Sec. 3283 is read to reach only offenses “involving the sexual or physical abuse, or kidnapping” of a child, an argument can be made that defendants merely “conspiring” to do one of those things is not such an offense.  If that argument was successful, then the normal 10 year statute of limitations would apply, and the two conspiracy counts charged against Maxwell would be subject to being dismissed since the 10 year statute would be expired.

And this takes me back to a point I made in my story yesterday — this is another factor that points in the direction that an outline of a deal has already been made, but not specifically agreed to yet.  A defendant can waive a defense based on the statute of limitations.  The two conspiracy counts to which Maxwell has been charged carry a MAXIMUM penalty of only five years.  If she was offered a plea agreement that involved only pleading to those two charges — and maybe one of the perjury charges — she would be guaranteed a relatively short prison sentence.

But let us consider for a moment the decision she is being put to now.

It’s one thing to be faced with the “abstract” idea of maybe going to prison while you are traveling the world to a series of luxurious accommodations available to you, and with millions of dollars in bank accounts to keep you comfortable in the manner in which you are accustomed.  As long as the legal jeopardy is merely a “threat” that you have high-priced attorneys working to fend-off on your behalf, it is easier to ignore the “reality” of what might some day follow.

But it will tend to sharpen one’s focus on the issues at hand when you find yourself sitting in a jail cell in New Hampshire, being fed less than elegant meals by the US Marshall while being transported by bus or van to New York City (something akin to a ham&cheese sandwich on white bread with a bag of chips), and then housed in the far-less-than-luxurious “Metropolitan Detention Center” once there.  Based only on the charges that have been filed, if I was her attorney I would be informing her with regard to what she might be facing in terms of a jail sentence if she maintains her innocence, goes to trial, and loses.

In that circumstance, the Sentencing Guidelines provide a variety of methods by which a sentence of between 15 and 20 years is EASILY attainable by the prosecutors — maybe longer.  Maxwell is 59 years old.  Taking this case to trial would be gambling with the remainder of her life.

If I was the prosecutor, I was sitting in my office in the SDNY, and I learned that Maxwell had purchased a million dollar estate in New Hampshire with cash, and tried to hide that fact — and her presence at that location — in a time period in which I was trying to work out a deal with her attorneys, I would have said “Screw that.  Let her think about my offer in a jail cell.”

I expect rumors to begin to surface shortly that she has reached an agreement with the prosecutors, and is fully cooperating in the investigation and prosecution of others.