The U.S. Court of Appeals for the 11th Circuit heard an appeal on December 3, 2020. The appeal was to determine whether a 2007 non-prosecution agreement (NPA) that shielded Jeffrey Epstein from child sex charges would stand. To nullify the NPA would impact Ghislaine Maxwell’s criminal case. Maxwell was accused of bringing girls to Epstein so he could abuse them.

Maxwell’s attorney has said that the NPA protected Maxwell from prosecution. Federal prosecutors have disagreed. The point of the 2007 NPA was that it shielded Epstein from possible federal indictment for the sexual abuse of dozens of girls, some as young as 14, between 1999 and 2007. An additional element of the NPA was that four other named co-conspirators (all women) and “any potential co-conspirators” were also immune from federal prosecution. Epstein pleaded guilty in 2008 to lesser state prostitution charges as part of the terms of the NPA and served 13 months in jail. He was granted daily work release while there.

Women who claim they were abused by Epstein have been litigating over this agreement for years. Paul Cassell, the attorney for one of those women, Courtney Wild, insisted that the NPA prevented Ms. Wild from speaking to prosecutors. Ms. Wild has been working for 12 years to undo the non-prosecution agreement, which has been a means for Epstein and other alleged abusers to evade federal sex charges. When Cassell was asked what a legal “win” would gain his client, he answered that, “She has an opportunity to cover with prosecutors. That’s all we’re asking for,” he said.

In April, a three-judge panel for the 11th U.S. Circuit Court of Appeals determined that the NPA did not violate the federal Crime Victims’ Rights Act, but the appeals court vacated that ruling later and ordered a full court hearing on the issues of the case.

Epstein was not charged with a federal crime as part of the NPA, and so 11th Circuit Court of Appeals judges seemed uncertain whether the 2007 agreement triggered the federal Crime Victims’ Rights Act. Judge Barbara Lagoa said, “In this case, there was no charging document, so how can we interpret the statute in a way that requires the government to have to notify a victim prior to an accused being named?”

Though Epstein’s legal team worked with prosecutors on the agreement in December of 2007 and again in January 2008, and told Wild and others that the case was under investigation, even after Epstein pleaded guilty more than five months later to the state charges, his victims were not advised about the hearing or the agreement until it was finalized.

When Judge Frank Hull asked DOJ lawyer Jill Steinberg why the victims weren’t told about the NPA, the response was “. . . until Mr. Epstein actually fulfilled his part of the bargain and pled guilty, the NPA (non-prosecution agreement) had not been fulfilled and the investigation continued until the very moment he stepped into that courtroom.”

Although then-U.S. Attorney Alex Acosta was accused of “poor judgment” for allowing Epstein to enter into the deal, a Justice Department investigation found no professional misconduct.

After he was charged in 2019 with sex trafficking, Epstein hung himself in jail. Attorney General William P. Barr said, “a perfect storm of screw-ups” at the jail led to Epstein’s death.

Epstein’s alleged accomplice, Maxwell, filed a new motion for release on bail on December 7, 2020, the Monday after the hearing on whether the NPA should stand. Her filings revealed that her new bail application would “rely on sensitive and private information that, if made public, would be highly damaging to both Ms. Maxwell and third parties.” Maxwell provided a report that summarizes her financial position and discloses all of her assets. Her failure to provide this information previously was one of the reasons bail was denied earlier.

Maxwell first applied for release on bail with a proposal of $5 million in July 2020. Her application was denied. Acting U.S. Attorney Audrey Strauss commented that the new pleading was basically the same as the denied motion from the summer, repackaged and presented together with a more specific bail assembly. She further pointed out that when U.S. District Judge Alison Nathan denied bail the last time, she said, “further information about financial picture would be irrelevant because no combination of conditions could ensure this defendant’s appearance.”

Maxwell was charged in July with acting as part of a sex ring, where she helped to recruit, groom, and sexually abuse at least six minors. She was ordered to be jailed pending trial, as Judge Nathan said Maxwell’s wealth, “extraordinary capacity to avoid detection” and her international ties made her a flight risk.

According to Maxwell’s attorney, she is being held in “de facto” solitary confinement, is “excessively and invasively searched,” and is being awakened every 15 minutes by flashlight to see if she’s alive. A staff attorney at the jail in New York where Maxwell is being held denied that she has been held in solitary confinement, saying that she has restrictions similar to other inmates and that for 11 hours each day she has access to common areas. Prosecutors say she doesn’t have it so bad. She is out of her cell for 13 hours each day, has her own TV, two computers for her exclusive use, her own shower and her own phone.

Maxwell’s bail bid is for $28.5 million and includes employing armed guards to prevent her from fleeing and to protect her. She also said she will waive her extradition rights (Maxwell holds both French and British citizenship). Her trial is scheduled for July 2021. She could face a 35-year jail term if she is convicted.

Newly filed documents with the U.S. District Court in Manhattan show that Maxwell has been married since 2016. The documents reveal that the security for the proposed bail package is $8 million in property and $500,000 in cash. These items, which include three homes, purport to be all of Maxwell’s and her husband’s assets. Seven close friends and family members agreed to pledge $5 million of their own assets. Although Maxwell put the bulk of her assets into a trust her husband controls, she still has access to more than $4 million in ready funds, including a London penthouse worth $2 million.

When she was arrested in July, Maxwell told court officials that she was in the process of getting a divorce. Prosecutors say that this disclosure undermines her statements that her marriage will keep her in the U.S. if she is granted bail. And according to Maxwell’s bail bid, she would be staying in New York with someone other than her husband.

Her husband refused to come forward at the time of her arrest. “While a friend’s desire to avoid publicity may be understandable, a spouse’s desire to distance himself in that manner — particularly when coupled with the defendant’s inconsistent statements about the state of their relationship — undermine her assertion that her marriage is a tie that would keep her in the United States,” prosecutors said.

It is widely believed that Maxwell’s husband is Scott Borgerson, CEO of CargoMetrics. In a letter he wrote to the court in support of Maxwell’s release on bail, he said, “I have never witnessed anything close to inappropriate with Ghislaine. Quite to the contrary, the Ghislaine I know is a wonderful and loving person.” He wrote, “I believe that Ghislaine had nothing to do with Epstein’s crimes.” Borgerson claimed the reason for all the secrecy about his identity was to avoid the disruption to his life and “the feeling of being stalked, spied upon and trapped by constant, 24/7 media intrusion.”

Even though legally they were a couple, in the documentation to facilitate the creation of the trust into which Maxwell placed her assets in 2018, both Maxwell and her husband indicated that they were single. Prosecutors said, “It is unclear why the defendant did not disclose her marital status to the bank, but that lack of candor on a bank form mirrors her lack of candor with pretrial services in this case . . .”

Maxwell’s lawyers insist that she’s been vilified “ruthlessly” in far more articles than were written about Harvey Weinstein and Bill Cosby after their arrests (more than 6,500 national media articles). “She wants nothing more than to remain in this country to fight the allegations against her, which are based on the uncorroborated testimony of a handful of witnesses about events that took place over 25 years ago,” her lawyers said.

Conversely, U.S. attorney Bradley Edwards, who worked for 12 years to bring Epstein to justice, insists that without Maxwell, there would have been no Epstein. When Maxwell’s case goes to trial, three victims are prepared to testify in detail about her role in “Epstein’s criminal scheme to sexually abuse them as minors.”

Maxwell requested that her bail hearing be held before Christmas. That wish was not granted. No date has yet been set for the bail hearing.