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Case 1:20-cr-00330-PAE Document 382 Filed 10/29/21 Page 50 of 69 no authority indicating that more is required. Indeed, the government’s demand for a proffer is nothing more than an attempt to force the defense to spell out exactly what it plans to ask the case agents and reveal its defense strategy. The Court should reject this demand. IV. THE GOVERNMENT’S MOTION TO PRECLUDE EVIDENCE OR ARGUMENT ABOUT ITS MOTIVES FOR PROSECUTING MS. MAXWELL IS MISGUIDED AND MERITLESS The government moves to preclude the defense from eliciting evidence and argument “regarding the government’s supposed motives for prosecuting Ms. Maxwell, including evidence of Jeffrey Epstein’s 2019 death and the timing of charges against the defendant.” Mot. at 34. Once again, the government’s motion reaches too far and should be denied. First, as the government points out, challenges to the prosecutors’ motives are typically 99 66 brought by raising claims of “vindictive prosecution,” “selective prosecution,” or “outrageous government conduct,” which must be resolved by the court, not the jury. See United States v. Regan, 103 F.3d 1072, 1082 (2d Cir. 1997); United States v. Farhane, 634 F.3d 127, 167 (2d Cir. 2011). But the defense is not raising any of those claims. Simply arguing to the jury that the government substituted Ms. Maxwell for Jeffrey Epstein after his death does not imply that the prosecution was the result of the government’s “animus toward the defendant” (vindictive prosecution), or was “motivated by a discriminatory purpose” (selective prosecution), or was so outrageous that “due process considerations” must bar the prosecution (outrageous government conduct). See United States v. Avenatti, 433 F. Supp. 3d 552, 562-53 (S.D.N.Y. 2020); United States v. Sanders, 211 F.3d 711, 716-17 (2d Cir. 2000); United States v. Cuervelo, 949 F.2d 559, 565 (2d Cir. 1991). Second, for the reasons set forth above, the defense is entitled to elicit evidence of Epstein’s death and the timing of the charges against Ms. Maxwell to challenge the thoroughness and reliability of the government’s investigation. Kyles, 514 U.S. at 445-46; Bowen, 799 F.2d at 42 DOJ-OGR-00005505