DOJ-OGR-00011114.jpg

Case 1:20-cr-00330-PAE Document690 _ Filed 11/19/21 Page6of23 this evidence as to the sex trafficking counts, the witness is precluded from testifying that [i The Court thus draws the line described above for limiting Witness-3’s testimony. Permitting the entirety of the proffered testimony carries a risk that the jury may convict Ms. Maxwell due to conduct that cannot form the basis of a conviction for the charged crimes. But by limiting the testimony to the few categories of relevant testimony outlined above, the prejudice is substantially minimized. Moreover, whether as direct evidence of the Mann Act counts or offered for a proper purpose under 404(b), this testimony must be paired with a proper limiting instruction to guard against potential juror confusion. The Defense has submitted proposed limiting instructions, and the Government agrees that some sort of instruction is appropriate, although it disagrees with the basis for the instruction. Dkt. No. 452 at 50 n.12; Gov. Supp. Ltr. at 12 (Nov. 5, 2021). In accordance with this ruling, the Court proposes the following instruction before this anticipated witness testifies: You will hear testimony from the next witness about interactions that she says she had with the Defendant and Mr. Epstein. I instruct you that because the witness was over the relevant age of consent at the relevant time period, any sexual conduct she says occurred with Mr. Epstein was not “illegal sexual activity” as the Government has charged in the Indictment. I instruct you that this witness is not a victim of the crimes charged in the Indictment. To the extent you conclude that her testimony is relevant to the issues before you, you may consider it. However, you may not convict the Defendant on the basis of the testimony regarding the sexual conduct between this witness and Mr. Epstein. Nor may you consider this testimony as any kind of reflection on Mr. Epstein’s nor Ms. Maxwell’s character or propensity to commit any of the crimes charged in the Indictment. The Court also proposes the following instruction before any testimony by other witnesses regarding sexual activity that occurred after the relevant age of consent: I anticipate that you will hear testimony from the next witness about sexual conduct that she says she had with Mr. Epstein in [insert relevant jurisdiction, e.g. New Mexico]. I instruct you that because the witness was over the age of consent in [insert relevant DOJ-OGR-00011114