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Case 1:20-cr-00330-PAE Document 224 Filed 04/20/21 Page12of17 e = The Giuffre v. Maxwell litigation specifically, including: e The circumstances surrounding the deposition. e The nature and character of the Giuffre’s lawyers including their unethical behavior. e The discovery abuses by Giuffre’s lawyers. e Why, in the context of this defamation case, the questions being posed, now the subject of the Perjury Counts, were not material including: e Approximately 50 unresolved motions relating to the admissibility of evidence. e The testimony of ten to fifteen other witnesses including fact and expert witnesses. e = The testimony of Ms. Maxwell’s lawyers. In sum, if the Perjury Counts are not severed, this criminal trial will be subsumed by evidence not relevant to the main charges, the Mann Act Counts, completely unrelated to the defamation case.* The government suggests that these evidentiary problems can be cured by “stipulations” but does not propose any. It is hard to imagine the legal gymnastics necessary to accomplish any stipulations that would fix these problems. Alternatively, or perhaps with the unknown stipulations, the government suggests prejudice could be avoided by jury instructions. It is * The Second Circuit has adopted an inclusionary approach to other act evidence under Rule 404(b), which allows such evidence to be admitted for any proper purpose other than to demonstrate criminal propensity. United States v. LaFlam, 369 F.3d 153, 156 (2d Cir.2004). The rule, however, is not “a carte blanche to admit prejudicial extrinsic act evidence....” United States v. Scott, 677 F.3d 72, 79 (2d Cir. 2012). In evaluating F.R.E. 404(b) evidence, the Court must consider whether: (1) it is offered for a proper purpose; (2) it is relevant to a material issue in dispute; and (3) its probative value is substantially outweighed by its prejudicial effect....” ZaFlam, 369 F.3d at 156. There is no proper purpose for the admission of any of the alleged perjury which occurred decades after the charges in Counts 1-4. Certainly, the government has articulated none. Ms. Maxwell’s answers to the vague and objectionable questions selectively plucked from hundreds of pages of transcripts have no relevance to any material issue related to the Mann Act Counts. And, significantly, any arguable probative value is substantially outweighed by its prejudicial effect. DOJ-OGR-00003909