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H3vlgiu2 the central issues, of course, in the case. One of the things that was called an obvious lie. And so we want to bring in the

co-conspirators and ask them, Ms. Giuffre says you were ina

conspiracy and what's your side of the story on that? And they

take the Fifth. So there we are. The question is, are we

going to conceal that from the jury or are we going to present

it to them? Well, the Second Circuit case that your Honor is

well familiar with, LiButti, sets out the factors that have

determined that issue, and one of the things we hear from the

defendant is, oh, it's never been applied in a case like this.

I would just direct your attention, as I did during the Epstein argument, to the case of FDIC v. Fidelity & Deposit Co. of Maryland. That's a Fifth Circuit case from 1995, in which a bank officer was accused of dishonest and fraudulent acts and kind of bogus loans, and the Fifth Circuit allowed, Fifth Amendment invocations from the loan recipients to be used

against him, reasoning that, well, in this kind of a case, the

collusion then is shown by the Fifth Amendment invocation of the participants in the conspiracy there. Fifth Amendment invocations can be held against someone who's accused to be a part of that conspiracy, which of course is exactly what we

have going on here in a civil context.

LiButti, by the way, the Second Circuit case, which is

controlling in this jurisdiction, favorably cites the Fifth

Circuit case in FDIC v. Fidelity & Deposit Cox, explaining that

SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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