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Case 1:20-cr-00330-PAE Document 709 _ Filed 07/12/22 Page4of5 The Honorable Alison J. Nathan November 15, 2021 Page 4 surrounding the statement during the trial and evaluate admissibility prior to any attempt by the government to introduce the statement. The government should be instructed that it cannot discuss the alleged statement in its opening remarks. Similarly, the second example concerns direction from Epstein and CC-2 to CC-1 to “help someone who was coming to take the computers....” Again, this statement does not appear to be during or in furtherance of any conspiracy alleged in the indictment. See Lutwak v. United States, 344 U.S. 604 (1953); Krulewitch v. United States, 336 U.S. 440 (1949). The government now seems to concede this point, falling back on the time honored “effect on the listener” and therefore not offered for the truth of the matter exception to the hearsay rule. The problem with the government’s position, however, is that the statement and subsequent actions are not relevant to any material issue in this case. The apparent point of the proffered evidence is to demonstrate that, in 2005, Epstein was extracting his computers in advance of the search and thus may have had some guilty knowledge. Ms. Maxwell is not charged with tampering or obstruction and Epstein’s motives for allegedly directing CC-1 to do something with his computers is not relevant to whether Ms. Maxwell conspired to do the things alleged in the indictment. Again, any probative value associated with this action is substantially outweighed by the prejudice to Ms. Maxwell who was not present, did not participate, and had no knowledge of either the statement or the acts. DOJ-OGR-00011286