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Case 1:20-cr-00330-PAE Document 224 Filed 04/20/21 Page9of17 C. Some Overlapping Proof, By Itself, Does Not Make Joinder Proper The government contends that joinder is appropriate because it will seek to prove the Perjury Counts with some of the same witness testimony that it will use to prove the Mann Act Counts. Resp. 141-42. That argument is unavailing. First, the government admits that only “in one instance” does a charged deposition question relate to a “specific victim” in the Indictment. Resp. at 144. Second, as Ms. Maxwell set forth in her opening memorandum, even if the government uses some minimal amount of overlapping evidence, including witness testimony, to prove both the Perjury Counts and the Mann Act Counts, that is not sufficient reason, by itself, to try the two groups of counts together. See United States v. Burke, 789 F. Supp. 2d 395, 398 (S.D.N.Y. 2011) (severing witness tampering charges from RICO conspiracy charges in the interests of judicial economy, despite fact that government would have to present “some overlapping proof” and “five limited overlapping witnesses” to prove both charges). Incredibly, the government also contends that answering poorly phrased questions instead of asserting the privilege against self-incrimination is somehow admissible in the trial of the Mann Act Counts as consciousness of guilt. Resp. at 141-42. For example, the government repeatedly claims that Ms. Maxwell “den[ied] a “scheme to recruit underage girls.” Jd. The actual question posed to Ms. Maxwell at her deposition was “Did Jeffrey Epstein have a scheme to recruit underage girls for sexual massages? If you know... .” and her answer was “I don’t know what you’re talking about.” Apparently, the government intends to prove this answer not by demonstrating that Ms. Maxwell did know what the examiner was talking about, but instead that a third party — Epstein — “had a scheme to recruit underage girls for sexual massages.” And the answer of not understanding the questioner shows “consciousness of guilt.” This is a circular argument: anyone who denies being a witch must be a witch. For an allegedly false exculpatory statement to be of any value “it either must involve a matter collateral to the facts establishing DOJ-OGR-00003906