DOJ-OGR-00003108.jpg

Case 1:20-cr-00330-PAE Document 204 _ Filed 04/16/21 Page 174 of 239 of proof of the conspiracy and perjury crimes permitted joinder of the offenses . . . and denial of appellant’s Rule 14 pretrial motion for severance.”); Pizarro, 2018 WL 1737236, at *6-*7, The defendant argues that the trial on the perjury counts will require a “full-blown re- litigation of the defamation action.” (Def. Mot. 5 at 9). That is a significant exaggeration. To litigate the perjury counts, the parties will need to present evidence about the basic substance of the civil suit—in particular, Giuffre’s allegations and the defendant’s denials—such that the jury will be able to assess materiality and the statements’ context. This can be done briefly—as stated in Section V, the Government is amenable to presenting that information through a stipulation— and, in any event, through minimal additional evidence. The stipulation or other evidence could be crafted to minimize the risk of spillover prejudice, for instance by referring to Giuffre by a pseudonym to avoid any connection she might have to testimony on the substantive counts. And any remaining prejudice could be vitiated by a limiting instruction that the jury should not consider Giuffre’s allegations as evidence of the substantive counts. See Page, 657 F.3d at 130-31 (approving of similar precautions when introducing evidence of a defendant’s prior felony conviction); Pizarro, 2018 WL 1737236, at *7; see also Zafiro, 506 U.S. at 540 (“[JJuries are presumed to follow their instructions.” (citation and internal quotation marks omitted)). There is every reason to think a jury could and would follow such an instruction. See, e.g., Rivera, 546 F.3d at 254 (using a limiting instruction to prevent spillover prejudice for counts involving the sexual exploitation of different children, especially in light of admissibility across counts); United States v. Pena, 932 F. Supp. 2d 464, 467 (S.D.N.Y. 2013) (using a limiting instruction to address spillover prejudice from two murder for hire conspiracies). Indeed, even if the counts were severed, as noted above, the Government would still seek to offer evidence of the defendant’s false denials of conduct relevant to Counts One through Four as evidence of her consciousness of guilt 147 DOJ-OGR-00003108