DOJ-OGR-00003110.jpg

Case 1:20-cr-00330-PAE Document 204 _ Filed 04/16/21 Page 176 of 239 “such evidence might lead to evidence . . . which would justify forfeiture”). The jury need not decide the outcome of the defamation case in order to evaluate whether truthful answers were capable of influencing the decisionmaker or could reasonably have led to the discovery of admissible evidence.** Finally, the defendant argues that severance is appropriate because including the perjury counts “will necessarily introduce into the trial the issue of Ms. Maxwell’s credibility.” (Def. Mot. 5 at 13). That is true anytime perjury or false statements counts are joined with other offenses, yet joining perjury or false statements counts to the substantive crimes they concern is the rule, not the exception. And more generally, the “adverse effect of being tried for two crimes rather than one” is not prejudice. Werner, 620 F.2d at 929. Trying the perjury counts with the Mann Act counts they concern makes eminent sense. Doing so greatly advances judicial efficiency by avoiding the need for two trials at which the same evidence would be presented, including testimony from the same victims. Just as the counts are similar in character, the trial would not be unwieldy. Against these efficiencies, endorsed by the liberal joinder principles behind Rule 8, the defendant identifies at most only “generalized claim[s] of prejudice,” Rivera, 546 F.3d at 254, that can be cured by an appropriate limiting instruction. She thus falls far short of meeting her heavy burden, and her motion should be denied. 4 The defendant relatedly suggests that her counsel from the defamation suit may have to testify regarding the perjury counts, denying her counsel of her choice. She has not identified what factual issue they might testify to and why it must come from one of the lawyers who represented her on both that case and this one. The Government notes, in this respect, that three of the defendant’s attorneys in this case had no involvement in the civil suit. Even if such testimony were necessary by one of the defendant’s lawyers, it would only disqualify the firm if that lawyer is called “on a significant issue other than on behalf of the client, and it is apparent that the testimony may be prejudicial to the client.” N.Y. R.P.C. 3.7(b); see generally Murray v. Met. Life Ins. Co., 583 F.3d 173, 177-80 (2d Cir. 2009) (discussing the advocate-witness rule). 149 DOJ-OGR-00003110