DOJ-OGR-00005419.jpg

Case 1:20-cr-00330-PAE Document 380 _ Filed 10/29/21 Page 26 of 54 after 2019, including testimony from two of the Minor Victims, any connection between the evidentiary background of the USAO-SDFL’s charging decisions or this Office’s 2019 indictment of Epstein and the defendant’s guilt or innocence is attenuated. It is not the Government’s view of the evidence at any one time that matters—it is the view of the jury considering the evidence before it, and past charging decisions have no bearing on that evidence. See, e.g., United States v. Stewart, No. 03 Cr. 717 (MGC), 2004 WL 113506, at *1 (S.D.N.Y. Jan. 26, 2004) (“Defendants may not invite the jury to speculate as to why [a particular] charge was not included in the indictment.”), aff'd and remanded, 433 F.3d 273 (2d Cir. 2006). At trial, the questions for the jury will be whether, based on the evidence presented, the defendant participated in the charged Mann Act and sex trafficking offenses. Nothing about the decisions of the USAO-SDFL and this Office has any bearing on the defendant’s guilt or innocence. The Second Circuit’s decision in United States v. White, 692 F.3d 235 (2d Cir. 2012), only underscores this point. In that case, the appellant challenged his conviction for being a felon in possession of a firearm. /d. at 238. “The only significant issue at trial was whether White possessed a firearm, and, more specifically, whether the jury would believe the officers’ claim that one was recovered from his front pocket.” /d. at 247. White was traveling in a vehicle with four other people on the day of his arrest, and “[t]he defense’s strategy was to seek to demonstrate that the [firearm in question] was found in the vehicle and not on White’s person.” Jd. at 238. All five individuals were arrested and charged that day in state court with possession of the firearm at issue. See id. at 239. Under New York law, a firearm found in an 25 DOJ-OGR-00005419