DOJ-OGR-00010280.jpg

Case 1:20-cr-00330-PAE Document647_ Filed 03/11/22 Page14 of 24 Court’s error was compounded by its earlier refusal to instruct the jury that Jane’s sexual abuse in New Mexico could not be considered “illegal sexual activity” as charged in the Indictment because it was not a violation of New York law, as it had instructed with regard to Kate and Annie Farmer’s testimony. (Tr. 2775-77). As a result, the jury instructions were insufficient to properly instruct the jury on the law and created a substantial likelihood that Ms. Maxwell was convicted of a crime other than the one alleged in the Indictment. Moreover, because the Mann Act conspiracy counts (Counts One and Three) required an identical finding of intent, there is a substantial likelihood that the jury improperly convicted Ms. Maxwell on those counts based on the same conduct. Accordingly, the Court should vacate Ms. Maxwell’s convictions on Counts One, Three, and Four, and grant a new trial on these counts. Il. All Three Conspiracy Counts Are Multiplicitous Because They Are Based on a Single Underlying Criminal Scheme. The government concedes in its Opposition that the Mann Act conspiracies charged in Counts One and Three are so similar that they are multiplicitous, and that the Court should only enter judgment as to one of those two counts. (Opp. at 24) (“[T]he Government agrees that the Court should enter judgment on only one of the Mann Act conspiracy counts, given the similarities between those counts.”). The government maintains, however, that the sex trafficking conspiracy charged in Count Five is not multiplicitous and that the Court should enter judgment on Counts Three and Five because they “arose from different criminal schemes, involving different criminal conduct, different statutory predicates, and a different modus operandi.” (Opp. at 24). The government’s attempt to separate and distinguish the conspiracies charged in Counts Three and Five is directly contrary to its theory of prosecution and the proof at trial, and flies in the face of the arguments the government made to the jury. The government never framed these 10 DOJ-OGR-00010280