DOJ-OGR-00004225.jpg

Case 1:20-cr-00330-PAE Document 286 Filed 05/20/21 Page12o0f14 Til. At Minimum, the Government Must Demonstrate the Admissibility of Evidence Regarding Accuser-3 Pursuant to Fed. R. Evid. 404(b). The government apparently does not dispute its obligation to demonstrate the admissibility of Accuser-3’s testimony as “other act” evidence under Fed. R. Evid. 404(b). Litigation of the admissibility of this evidence is premature, and Ms. Maxwell reserves the right to challenge it at the appropriate juncture. Ms. Maxwell notes, however, that the government’s argument that such evidence is admissible under Fed. R. Evid. 404(b) suffers from the same flaws as its argument that Ms. Maxwell’s interactions regarding Accuser-3 constitute an overt act. The government claims Accuser-3’s testimony is admissible to show Ms. Maxwell’s “knowledge, intent, and modus operandi.” Opp. 158 (emphasis in original). The government’s very use of those terms, however, betrays an implication that Ms. Maxwell’s interactions with Accuser-3 were somehow unlawful. Any knowledge or intent on Ms. Maxwell’s part that Epstein would engage in consensual sexual activity with Accuser-3, or any method by which she purportedly persuaded Accuser-3 to engage in such lawful conduct, has no bearing on whether Ms. Maxwell knew or intended Accuser-1 or Accuser-2 to engage in unlawful sexual activity. And Accuser-3’s proffered testimony about her “subjective experience” of her lawful, consensual activity with Epstein certainly would not inform the jury as to Ms. Maxwell’s state of mind or conduct with respect to Accuser-1 or Accuser-2. Ms. Maxwell is prepared to brief these issues more fully in connection with her evidentiary motions. DOJ-OGR-00004225