DOJ-OGR-00005515.jpg

Case 1:20-cr-00330-PAE Document 382 Filed 10/29/21 Page 60 of 69 e the Indictment charged a conspiracy between Jeffrey Epstein and Ms. Maxwell during a discrete time period; e the charged conspiracy encompasses females other than the four specified Accusers; e the government's burden at trial will be to show both an agreement between Mr. Epstein and Ms. Maxwell to accomplish the specified illegal objectives; e the government's burden at trial will also encompass proof beyond a reasonable doubt that Ms. Maxwell had knowledge of the conspiracies’ illegal objectives. Thus, evidence that Jeffrey Epstein acted alone, or with other co-conspirators, without the knowledge or participation of Ms. Maxwell may be admissible as direct evidence of Ms. Maxwell's lack of awareness of or participation in the charged conspiracies. For example, if the government attempts to prove up the conspiratorial agreement or the knowledge of the illegal objective based on a pattern and practice, then evidence that Epstein acted alone or without Ms. Maxwell's knowledge or participation may become relevant. Each of the cases cited by the government is readily distinguishable. First, all but one of the cases dealt with specific "good" propensity evidence of the defendant, not the absence of a co-conspirator during "bad" acts by the defendant. See United States v. Dawkins, 999 F.3d 767 (2d Cir. 2021) (defendant — not a co-conspirator — proffered evidence that on other occasions he did not bribe other potential targets); United States v. Scarpa, 913 F.2d 993, 1011 (2d. Cir. 1990) (absence of defendants’ discussions about drugs on single occasion not admissible to "disprove government's theory that the defendants congregated ... to discuss the marijuana business"); United States v. Chambers, 800 F. App'x 43, 46 (2d. Cir. 2020) (summary order) (fact that defendant also ran a legitimate law practice not admissible to disprove he committed bad acts through illegal practice); Boyce v. Weber, 19 Civ. 3825 (JMF), 2021 WL 2821154, at *8 (S.D.N.Y. July 7, 2021) (defendant's access to other potential victims without engaging in abuse not admissible to establish innocence). Moreover, each of these cases had to do with tendering a2 DOJ-OGR-00005515