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Case 1:20-cr-00330-PAE Document 210 Filed 04/16/21 Page4of6 defect by requiring the government to elect which of the conspiracy charges it will move forward with and dismiss the remaining conspiracy charge. II. The Government Failed to Meet its Burden of Establishing the Two Alleged Conspiracies Are Distinct. To guard against the “well recognized danger” that prosecutors can easily “draft indictments that allege what appear to be separate conspiracies but may actually be parts of an overall conspiracy,” where a defendant “makes a non-frivolous showing that two indictments in fact charge only one conspiracy, the burden shifts to the prosecution to show, by a preponderance of the evidence, that there are in fact two distinct conspiracies.” United States v. Lopez, 356 F.3d 463, 467 (2d Cir. 2004) (citing United States v. DelVecchio, 800 F.2d 21, 22 (2d Cir. 1986)). As demonstrated in Ms. Maxwell’s moving papers, application of the Korfant multifactor test results in an identical overlap of alleged: participants, time, similarity of operation, overt acts, geography, objectives, and interdependence. Mot. at 2. The government has failed to proffer any evidence to the contrary, and Ms. Maxwell’s Motion should be deemed confessed. CONCLUSION For the reasons stated in Ms. Maxwell’s original Motion and this Reply, she requests that the Court enter an order requiring the government to elect the conspiracy charge it intends to prosecute and dismiss the remaining count. Dated: March 15, 2021 DOJ-OGR-00003761