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Case 1:20-cr-00330-PAE Document 714 Filed 07/12/22 Page5of7 irrelevant. If a commercial sex act occurred involving a 17-year-old in New York, that sexual activity is illegal under 18 U.S.C. § 1591 because it involves a minor, even though it is above New York’s age of consent. Although the instruction uses the phrase “illegal sexual activity,” an element of the Mann Act, the jury is likely not to grasp that point in a short mid-trial instruction, divorced from a discussion of the elements of the offenses. The jury would therefore also be confused into thinking incorrectly that sexual activity that is “not illegal” under the local law is similarly lawful under federal law. Finally, the Government notes that—as to New Mexico in particular—age of consent is not a simple and straightforward question. As the defense noted in their opposition to the Government’s motions in limine, “New Mexico does not have a specific age of consent.” (Def. Opp. at 46, Dkt. No. 483). The age of consent can also depend on the specific sexual act involved, which may require analysis of New Mexico state law in comparison to the facts elicited at trial. Compare id. at 46 & n.43 (noting that the age of consent depends on whether coercion or force are involved), with State v. Begaye, -- P. 3d --, 2021 WL 5173150, at * 2 (N.M. Ct. App. 2021) (affirming conviction of defendant who forcibly hugged a sixteen-year-old and, when releasing her, “brushed his hand over her chest and squeezed her breast”). It therefore cannot be said that a sexual act in New Mexico was “above the age of consent” without determining what sexual act occurred and how New Mexico state law would treat that act. In the Government’s view, these issues are best explained to the jury in the concluding jury instructions, where the jury can be fully instructed on the relevant law and then apply that law to the facts it finds have been established at trial. And no limiting instruction is needed because, as will be explained to the jury in the concluding instructions, they can only convict for violations of DOJ-OGR-00011308