DOJ-OGR-00005513.jpg

Case 1:20-cr-00330-PAE Document 382 Filed 10/29/21 Page 58 of 69 purpose or agreement with any co-conspirator to facilitate an illegal objective. The ill-founded motion should be denied. A. The Government Cites No Authority for Requiring Pre-trial Notice of Such Evidence. At the outset, this Court can deny the government’s motion for a simple reason: There is no authority requiring Ms. Maxwell to provide the government with notice of the evidence she intends to offer at trial. To the contrary, when such notice is required, the Rules of Evidence or Procedure make the requirement express. Rule of Criminal Procedure 16(b), for example, imposes a duty on Ms. Maxwell to make certain disclosures, particularly as they regard expert witnesses and opinions. But the Rule does not require her to identify evidence of her “absence when Epstein abused victims who are not part of the government’s case-in-chief” and then “explain the evidence she plans to offer and why such evidence would be admissible.” Nor does Rule of Evidence 404(b) require notice from the defendant. In fact, the government’s invocation of Rule 404(b) actually undermines its motion. In a criminal case, that Rule imposes on the government a duty to provide advance notice of any other-acts evidence it desires to admit at trial. Fed. R. Evid. 404(b)(3).°? The Rule does not impose a similar obligation on a defendant. 3° The Rule says: In a criminal case, the prosecutor must: (A) provide reasonable notice of any such evidence that the prosecutor intends to offer at trial, so that the defendant has a fair opportunity to meet it; (B) articulate in the notice the permitted purpose for which the prosecutor intends to offer the evidence and the reasoning that supports the purpose; and (C) do so in writing before trial — or in any form during trial of the court, for good cause, excuses lack of pretrial notice. Fed. R. Evid. 404(b)(3) (emphasis added). 50 DOJ-OGR-00005513