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Case 1:20-cr-00330-AJN Document 146 Filed 02/04/21 Page 9 of 16 § 2422(a) and § 2423(a) conspiracies to cause individuals to travel in interstate or foreign commerce to engage in unlawful sexual activity. /d. §§ 11d, 17d. ARGUMENT IL. All References to Accuser-3 Should Be Stricken as Surplusage. Under Fed. R. Crim. P. 7(d), “[u]pon the defendant’s motion, the court may strike surplusage from the indictment or information.” “This rule introduces a means of protecting the defendant against immaterial or irrelevant allegations in an indictment or information, which may, however, be prejudicial.” Fed. R. Crim. P. 7(d) Advisory Committee’s Note. In the Second Circuit, Fed. R. Crim. P. 7(d) motions may be granted “where the challenged allegations are not relevant to the crime charged and are inflammatory and prejudicial.” United States v. Scarpa, 913 F.2d 993, 1013 (2d Cir. 1990) (internal quotations omitted); see United States v. Greebel, No. 15-cr-637 (KAM), 2017 WL 3610570, at *2 (E.D.N.Y. Aug. 4, 2017) (striking language stating that defendant “orchestrated four interrelated fraud schemes” where indictment charged him in only two of those schemes). The paragraphs of the indictment alleging that Ms. Maxwell was complicit in Epstein’s “sexual abuse” of Accuser-3 are irrelevant, inflammatory, and unduly prejudicial. The indictment is plainly insufficient to allege that Ms. Maxwell conspired to entice Accuser-3 to travel, or to transport her in interstate or foreign commerce, let alone with the requisite intent. Moreover, the allegations regarding Accuser-3 have nothing to do with whether Ms. Maxwell conspired to violate § 2422(a) or § 2423(a) with respect to Accuser-1 or Accuser-2. Thus, the only explanation for the inclusion of alleged 20-year-old allegations involving Accuser-3, and the characterization of the alleged conduct as “sexual abuse,” is the likelihood that evidence submitted in support of those allegations will have an unduly prejudicial effect and would not survive a balancing analysis under Fed. R. Evid. 404(b). DOJ-OGR-00002684