Matthew Galluzzo has successfully applied for resentencing in other 18 USC 3582 cases, including modifications of sentences based upon US v. Davis and other changes in the law. He is an experienced federal criminal defense attorney and appellate lawyer and he offers a reasonable flat fee for an application to modify a federal sentence. Contact him today to discuss whether such a petition might benefit you or your loved one.

The question on everyone’s mind has been whether Ms. Maxwell will finally disclose the names of the other purportedly rich and powerful celebrities who engaged in illicit conduct with minors and Jeffrey Epstein. Ms. Maxwell has steadfastly refused to do that, even after Epstein’s death (to the surprise of some). Ms. Maxwell initially denied being knowingly involved in any criminal conduct, and her statement at sentencing was hardly an apology, either.

Ms. Maxwell may also have a legitimate ground for an appeal to the Second Circuit Court of Appeals. After the verdict, a juror disclosed that they had not told the Court during jury selection about having been a victim of a sexual assault. Judge Nathan (the trial judge) denied a motion for a new trial on that basis, and Maxwell will almost certainly pursue that argument on appeal.

The question now is whether Ms. Maxwell will consider disclosing the names of the Epstein “clients” pursuant to Federal Rule 35. That rule makes it possible for a convicted defendant to have their sentence reduced for providing “substantial assistance” to law enforcement following the imposition of sentence:

(b) Reducing a Sentence for Substantial Assistance.

(1) In General. Upon the government’s motion made within one year of sentencing, the court may reduce a sentence if the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person.

(2) Later Motion. Upon the government’s motion made more than one year after sentencing, the court may reduce a sentence if the defendant’s substantial assistance involved:

(A) information not known to the defendant until one year or more after sentencing;

(B) information provided by the defendant to the government within one year of sentencing, but which did not become useful to the government until more than one year after sentencing; or

(C) information the usefulness of which could not reasonably have been anticipated by the defendant until more than one year after sentencing and which was promptly provided to the government after its usefulness was reasonably apparent to the defendant.

As you can see, Ms. Maxwell will need to disclose this information within a year, or it will be too late for her to benefit. She theoretically might try to appeal her sentence before making that decision to cooperate, but her appeal might take longer than a year to resolve. Clearly, though, were she to divulge important information about “the clients” to federal prosecutors, she might be able to reduce her sentence such that she does not risk dying in prison.

Matthew Galluzzo is a New York City federal criminal defense attorney and former sex crimes prosecutor in Manhattan.

After a federal conviction – by guilty plea or by jury verdict – the defendant is interviewed by a specialized officer from the U.S. Department of Probation. These officers typically have backgrounds in social work, and it is their responsibility to prepare a biography – or presentence report – for the court. The judge uses this presentence report at sentencing to understand the defendant’s life, background, and circumstances. (The Bureau of Prisons also uses this report in determining the defendant’s prison designation.) The preparation of a report can easily take two months or more, as the interview has to be scheduled, a draft report prepared, edits and objections made by both the defense and the prosecution, and a final draft with a sentencing recommendation submitted to the sentencing court.

Following the preparation of the presentence report, both the prosecution and defense prepare sentencing memoranda for the judge. Both sides make arguments about the proper application of the U.S. Sentencing Guidelines and the sentencing factors pursuant to 18 U.S.C. § 3553(a). Defense lawyers usually submit character letters from friends and family of the defendant, and sometimes the defendant also submits his/her own letter of remorse. Eventually, the sentencing court then holds a sentencing hearing at which both sides make oral arguments about the sentence and the court pronounces its decision. That sentencing hearing could be anywhere from 4 to 6 months after the conviction, though it could take even longer.

Every federal offense has a maximum and a minimum possible prison penalty, but it is the Sentencing Guidelines that help courts and defendants understand what Congress considers reasonable with more precision. The U.S. Sentencing Commission promulgates Sentencing Guidelines for each offense that includes factors for the courts to consider for each type of offense. For example, the Guidelines instruct the courts to consider a defendant’s role in the offense, how much money was stolen, how many drugs were trafficked, whether firearms were used or not in the offense, and whether any minors were injured.

It is thus extremely difficult to estimate Ms. Maxwell’s sentencing range under the U.S. Sentencing Guidelines without knowing all the details of the case and her background, but she is clearly facing a significant sentence. When a person is convicted of sex trafficking or enticement of multiple individuals, the Guidelines instruct that a person should receive consecutive sentences for each victim. Here, there are three victims in the case with corresponding convictions, so the penalties for each offense will “stack,” rather than be imposed concurrently. See U.S.S.G. 2G1.1(d)(1). Assuming Ms. Maxwell has no prior criminal record, she is probably looking at Guidelines ranges of around 97-121 months per victim, imposed consecutively. U.S.S.G. 2A3.1(a)(2). The court and parties will refer to the Sentencing Table to calculate the Guidelines range for each offense. See Table. There could be other aggravating factors or reasons for departures from these Guidelines calculations, however, so this is hardly a definitive calculation. Regardless, a very rough and preliminary estimate has her realistically facing thirty years under the Guidelines, or more. Ms. Maxwell is sixty years old.

Following the sentencing, Ms. Maxwell will be able to pursue a direct appeal to the federal appeals court (in this case, the Second Circuit Court of Appeals). She can make legal arguments about alleged mistakes by the trial court in its rulings and/or arguments that the sentence was excessive. Prior to sentencing, Ms. Maxwell’s lawyers could also pursue various appellate arguments with the trial judge, Judge Nathan, though those probably have zero chance of success and would probably only serve to delay the sentencing. At first glance, there does not appear to be many arguments displaying any probability of success.

A defendant of course does not have to testify at trial, as they are entitled to a presumption of innocence and the burden of proof is on the prosecution. Moreover, a defendant’s decision not to testify cannot be held against them, either. That being said… sometimes defendants simply cannot expect to win without testifying. Elizabeth Holmes, for example, elected to testify that she is not criminally responsible for the alleged fraud at Theranos because she was controlled and abused by her boyfriend, who also managed that doomed corporation. Though she may ultimately be convicted, Ms. Holmes almost certainly made the jury’s decision more difficult by testifying. It was somewhat surprising to see Ms. Maxwell decline to testify here, because she frankly had no chance of winning with the strategy she employed. Nobody wins by sitting silent while four complainants point the finger at you with similar stories of abuse. It’s just basically impossible in this #MeToo era. That’s how Cosby and Weinstein lost at trial, and how Cuba Gooding Jr. and Andrew Cuomo will likely be convicted someday, too.

Despite the defiant post-verdict language from her lawyers, Ms. Maxwell likely knew that she was going to lose at trial. Perhaps she chose not to testify because she hopes to one day sell her story to newspapers. After all, you cannot sell what you give away for free on the witness stand. It’s also likely that she did not testify so that she could be cooperating witness someday. This is where the matter becomes truly interesting going forward.

Though most government cooperators choose to “snitch” before trial, it is possible to become a government cooperator after a guilty plea or conviction at trial. Virtually every government cooperator agrees to cooperate in exchange for a lesser criminal penalty, or for a shorter prison sentence. To be a cooperator, though, a witness cannot normally have testified under oath that they had nothing to do with the criminal conspiracy at issue. After all, a government cooperator is typically expected to testify under oath against his or her co-conspirators, and the government cannot elicit testimony from a witness that contradicts prior sworn testimony. Interestingly, Ms. Maxwell is actually indicted – and remains to be tried – for making allegedly false statements about this matter under oath in a parallel civil proceeding. Those statements were relatively short and brief, however, so the government may be willing to overlook some minor prior perjury on her part, in exchange for truly juicy information. If Ms. Maxwell had testified under oath, though, she would have spent the better part of three days denyingher involvement on the stand under withering cross-examination. After that, she would have been useless to the government as a witness against other unnamed co-conspirators because she could not possibly testify against her co-conspirators at a future prosecution of them. She would have destroyed her credibility as a government witness by that point.

So, it is quite possible that Ms. Maxwell and her lawyers deliberately withheld her testimony at trial so that she could still possibly cooperate with the government after a trial conviction. There have been more than a few rumors that President Trump, President Clinton, and Prince Andrew may have been involved in Jeffrey Epstein’s illegal abuse of minors. Given Mr. Epstein’s suspicious suicide at MCC New York, many people have been clamoring to know whether powerful people have been trying to hide the truth about Mr. Epstein’s systematic abuse of minors. Surely, the government would like to know whether Ms. Maxwell can confirm those rumors or provide any documentary proof as to their involvement. Perhaps Ms. Maxwell did not want to be perceived as a snitch or rat by participating with the government voluntarily pre-conviction. But now that she has been convicted at trial, she may acknowledge the futility of her continued resistance and offer the government her assistance in pursuing other prominent people. Maybe she is determined to be loyal to the memory of her dead friend, Jeffrey Epstein, but it would be a bit surprising if she would be willing to die in prison for him at this point.

The author of this article, Matthew Galluzzo, is a New York City criminal defense attorney specializing in federal criminal law. He is also a former Manhattan sex crimes prosecutor. His thoughts and opinions have been published many times in the New York Times and the Wall Street Journal, among other publications. He is also a regular television commentator for Radio Canada.

Weinstein has a right to a direct appeal to the appellate court, in this case called the Appellate Division, First Department, based upon issues that were raised “on the record” (i.e. issues which can be pointed to in the trial transcript). The deadlines for filing and responding to an appeal are typically somewhat flexible in actual practice, as both sides routinely ask for and are awarded extensions of time to file their appellate arguments and responses. Given the complexity of this case, a reasonable estimate is that the appellate court will arrive at a decision about a year after sentencing, though it could potentially be sooner if the defense team submits their arguments quickly.

If Weinstein were to win his appeal, then he would earn a new trial on the two charges for which he was convicted. (He can never be convicted of or retried on the predatory sexual assault charges for which he was acquitted at trial.) If Weinstein loses his appeal, he could ask the Court of Appeals (the highest court in the New York State system) to hear his next appeal – this process is called “seeking leave” to appeal. Unlike the Appellate Division, the Court of Appeals is not required to hear his appeal. Typically, the Court of Appeals chooses to only consider cases with novel legal issues or cases of great importance, or cases involving issues about which lower courts in the state have disagreed. Theoretically, if the Court of Appeals denies leave, then Weinstein could seek the remedy called a writ of habeas corpus in state court, and then even pursue that type of appeal in federal court. This process of “exhausting” his appeals could potentially take several years.

The overwhelming majority of criminal appeals are unsuccessful, but Weinstein has some reasonable basis for an appeal here. In short, his chances probably aren’t good, but they’re better than the chances of most defendants. As a preliminary matter, readers should understand that although a single legal error by a trial court might not be sufficient to warrant a reversal of a conviction, if there are enough small errors in the trial, it can result in a conclusion by an appellate court that the trial was unsafe, in sort of a “death by a thousand wounds” situation.

First, there was some controversy regarding a juror who might have given misleading or even false answers about a book that she had written. The defense sought to have her removed from the jury based upon her misleading answers during voir dire, and the court refused to release her. This decision might prove to be problematic for the prosecution on appeal. There have been several cases in the past in which the failures of trial courts to remove biased jurors for cause have resulted in reversal on appeal; here, the juror gave potentially untruthful answers that perhaps should have resulted in her removal for cause. A significant issue involving just a single juror can be enough by itself to warrant reversal in some circumstances.

Also, some women who claimed to have been victimized by Mr. Weinstein – but who were not the basis for any of the criminal charges in the indictment – were permitted to testify as “prior bad act” witnesses, or “Molineux witnesses” under New York law. Generally speaking, prosecutors are not allowed to present evidence that a defendant has done other bad things if those things are not factually related to the crime at issue for the jury, nor are prosecutors allowed to prove that a defendant has a propensity to commit a certain crime. (Indeed, for reasons that are complicated to explain, that is the reason why most defendants with criminal records elect not to testify at trial). There are some very limited exceptions to this prohibition on prior bad act evidence, including for example demonstrating that a defendant has a unique modus operandus, or that the crime was part of an ongoing scheme or plan, or if there is an issue as to the motive or intent of the defendant in committing the instant crime. Objectively, as a former sex crimes prosecutor, I completely fail to see how the prior bad act witnesses that testified in this case were even remotely permissible under New York law. Though the prosecution argued that Weinstein had some sort of overarching plan to rape women who wanted to work in Hollywood, their testimony was plainly presented for the sole purpose of proving that Weinstein was a rapist, and that is precisely the reason for which this sort of testimony is supposed to be precluded. The Appellate Division needs to carefully consider whether rape cases deserve some sort of special treatment when it comes to prior bad act evidence – otherwise, a whole lot of defendants on trial for drug crimes, for example, could potentially be convicted by evidence of their past crimes. Frankly, the evidence against Weinstein without these prior bad act witnesses was not overwhelmingly strong at all. Indeed, the two prior complainants had some serious questions regarding their credibility. These prior bad act witnesses undoubtedly tipped the balance in the prosecution’s favor (as they appear to have done in Bill Cosby’s retrial, when they were permitted after having been precluded in the first trial). If I were an appellate judge on this case, I would have some serious concerns about the use of these witnesses in Weinstein’s trial in light of current New York law. (IMPORTANT NOTE: We are pleased to see that Harvey Weinstein was finally held accountable. However, as criminal justice practitioners who have worked as both prosecutors and defense attorneys, we want to see everyone receive a fair trial. We also don’t want to see dangerous precedents set, no matter how well-intentioned they might have been or how much they satisfied the public’s lust for justice. We thus have some concerns about the way his conviction happened, without feeling any sympathy for Mr. Weinstein.)

Weinstein will also likely make arguments that the expert witness’ testimony about the “typical responses of rape victims” was based on junk science and also essentially asked the expert to opine as to whether the purported victims in this case were actually victims or not. Weinstein also sought to present an expert as to the evolution of memories but was denied in that regard. Weinstein will also argue that the Judge was biased against him (based upon a terse comment made to him about his text messages in court), and that he did not receive a fair trial in Manhattan in light of the media coverage, and that his motion for a venue transfer should have been granted. All in all, his arguments will be taken quite seriously on appeal.

Finally, Weinstein’s lawyers will undoubtedly seek to get him bail pending his appeal. Such a thing is possible. A judge from the Appellate Division can grant bail pending appeal if s/he thinks that Weinstein has a reasonable chance of succeeding on appeal (and if they have sufficient assurance that he will not flee). Weinstein, of course, is a huge flight risk at this point, having been convicted of crimes with mandatory jail sentences, so his bail would have to be astronomical for him to have a chance at bail pending appeal. I don’t expect him to be successful in getting bail pending appeal, and he will probably be sent to an upstate New York prison facility within the New York State Department of Corrections while his appeal is pursued.

The author of this post, Matthew Galluzzo, is a criminal defense attorney and former Manhattan sex crimes prosecutor. He also regularly handles criminal appeals.