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Case 1:20-cr-00330-PAE Document 382 Filed 10/29/21 Page 47 of 69 interviews, i went even further, claiming that Ms. Maxwell saw her naked several times and even fondled gM breasts on one occasion. See 3505-074 at 3. Count Two of the proposed SDFL indictment is the same as Count Six of the S2 Indictment and it is based on the exact same evidence that the government proposes to introduce to support Count Six; namely, the testimony of gg and related documentary evidence. See GX-1-A through GX-1-P; GX-2-A through GX-2-W; GX-3-A through GX-3-KK; GX-4-A through GX-4-K (message pad slips); GX-551 (Qj phone records); GX-801-803 (FedEx records). The only difference is that gM changed her story and accused Ms. Maxwell thirteen years later when she was interviewed by the New York FBI. The fact that yg HE tcstimony led to two different charging decisions on two different occasions is relevant to her credibility and the government’s acceptance of her differing testimony. The decision by the USAO-SDFL not to charge Ms. Maxwell in 2008 is therefore relevant and admissible. See Borrero, 2013 WL 6020773, at *2. This evidence could be elicited without hearsay. Special Agent gg had first- hand knowledge that Ms. Maxwell was not charged in the proposed SDFL indictment because she presented the indictment to the grand jury. See 3505-018 at 28:5-8. And it should not be excluded under Rule 403. The viability of Counts Five and Six of the S2 Indictment rise and fall on the credibility of gg. Morcover, the government’s decision to credit gy HE 2020 testimony, despite its obvious inconsistencies with her 2007 testimony, goes to the thoroughness and good faith of the New York investigation. The fact that Ms. Maxwell was not charged in 2008 is highly probative of both issues and is not substantially outweighed by the risk of juror confusion or speculation. It is therefore admissible. 39 DOJ-OGR-00005502