DOJ-OGR-00002432.jpg

Case 1:20-cr-00330-AJN Document136 Filed 02/04/21 Page 23 of 27 D. Counts 5 and 6 Should Be Dismissed The Second Circuit in Lighte reversed a perjury conviction on a finding that “fundamentally ambiguous” questions that gave rise to allegedly perjurious answers and should never have been submitted to the jury.” Lighte, 782 F.2d 367, 375-77. “When a line of questioning is so vague as to be ‘fundamentally ambiguous,’ the answers associated with the questions posed may be insufficient as a matter of law to support the perjury conviction.” Jd. at 375 (quoting United States v. Wolfson, 437 F.2d 862, 878 (2d Cir. 1970)). Here, the questions that elicited both of the allegedly perjurious statements in Count Five—“Did Jeffrey Epstein have a scheme to recruit underage girls for sexual massages? If you know.” and “List all the people under the age of 18 that you interacted with at any of Jeffrey’s properties?” —were fundamentally ambiguous. So were the following questions in Count Six, which preceded each of the allegedly perjurious statements regarding sex toys and three-way sexual encounters: e Were you aware of the presence of sex toys or devices used in sexual activities in Mr. Epstein’s Palm Beach house? e Do you know whether Mr. Epstein possessed sex toys or devices used in sexual activities? e Other than yourself and the blond and brunette that you have identified as having been involved in three-way sexual activities, with whom did Mr. Epstein have sexual activities? e Is it your testimony that in the 1990s and 2000s, you were not aware that Mr. Epstein was having sexual activities with anyone other than yourself and the blond and brunette on those few occasions when they were involved with you? e Two questions about an undefined type of “massage.” This Court can and should dismiss Count 5 and Count 6 as a matter of law. 18 DOJ-OGR- 00002432