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Case 1:20-cr-00330-AJN Document 122 Filed 01/25/21 Page 6 of 9 APPLICATION OF THE MULTIFACTOR TEST! Paragraph 14 of the Superseding Indictment (the first paragraph in Count Three) incorporates by reference all of the factual allegations made in Count One. The government has, therefore, based Count Three on the exact same factual allegations as Count One, rendering the two counts clones of one another. The commonality between these counts is complete and fatal to one of the alleged conspiracies. I. The overlap of participants. The alleged co-conspirators, Epstein and Maxwell, are identical. See Indictment 4 9 and 15. The accusers are identical. See id. 47 and 17. II. The overlap of time. The time period of the alleged conspiracies, 1994 to 1997, is identical. See id. 4] 1 and 15, III. Similarity of operation. The government claims, in paragraph 2 of Count One, that the operation was a “scheme to abuse minor victims” and that Ms. Maxwell and Jeffrey Epstein “enticed and caused minor victims to travel to Epstein’s residences in different states, which MAXWELL knew and intended would result in their grooming for and subjection to sexual abuse.” /d. {| 2. This is the identical “scheme” alleged, first by reference, and then explicitly, in Count Three: “Minor Victim-1 was enticed to travel from Florida to New York for purposes of sexually abusing her at the New York Residence in violation of New York Penal Law, Section 130.55.” Jd. 4 17(b). ' The first factor, an analysis of the criminal offenses charged in “successive indictments” is inapplicable here because Ms. Maxwell has been charged with two § 371 conspiracies in the same indictment. The multifactor test, however, remains applicable. See, e.g., United States v. Cooper, 886 F3d. 146, 155 (D.C. Cir. 2018) (appellate court applied the Second Circuit multifactor test to two conspiracies charged in the same indictment and determined that the charges were multiplicitous, remanding the case to the district court with directions to vacate one of the convictions). DOJ-OGR-00002305