DOJ-OGR-00011307.jpg

Case 1:20-cr-00330-PAE Document 714 Filed 07/12/22 Page4of7 under the laws of a state where that sexual activity occurred because the witness was above that state’s age of consent, the defendant is not charged with any such conduct. The proposed instruction is not fully accurate when it says that sexual activity is not “‘illegal sexual activity’ as the Government has charged in the Indictment” “because the witness was over the age of consent” in the relevant jurisdiction; rather, whether the sexual activity is or is not “illegal sexual activity” regarding the offenses in the Indictment is determined by reference only to New York state law and New York’s age of consent. As is clear from the Government’s proposed request to charge, the Government is not proceeding on a theory that a violation of any law other the New York law was an object of the Mann Act counts. See Proposed Request to Charge at 23, 31, 51-52. And while sexual activity over some other state’s age of consent cannot establish a substantive Mann Act offense because it was not “illegal sexual activity,” for the purposes of the conspiracy counts, the Government need not prove that any illegal sexual activity actually occurred. All that is required is that the defendant intended illegal sexual activity—that is, a violation of the New York object offense—to occur. See Proposed Request to Charge at 45. And sexual activity in New Mexico or Florida with someone below New York’s age of consent is direct evidence of that offense, whatever the local ages of consent. An instruction that sexual contact in a jurisdiction other than New York is not “illegal sexual activity” because it was over some other state’s age of consent would likely confuse the jury by (1) informing the jury about a state age of consent that is not relevant to the crimes charged in the Indictment, and (2) suggest to the jury that sexual contact was “not illegal” because it was above that state’s age of consent, even though it is direct evidence of the Mann Act conspiracies. Further, as to the sex trafficking counts, state laws and ages of consent are entirely DOJ-OGR-00011307