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Case 1:20-cr-00330-PAE Document 383 _ Filed 10/29/21 Page 29 of 40 would not have to stretch for cases about Brady disclosures from other circuits. See Bowen, 799 F.2d at 613 (referring simply to a “common trial tactic of defense lawyers”). This case exemplifies the point. The defense would like to (inaccurately) argue that the New York investigation was opened in response to the non-prosecution agreement entered between the USAO-SDFL and Epstein (the “NPA”), that the Government “scramble[d]” to investigate the defendant after Epstein’s death, and that “public pressure” led to a sloppy investigation. (Def. Opp. at 34). To do this, the defense would like to elicit information about the process by which the Government opened the New York investigation, media coverage, statements by the former Attorney General, Epstein’s death, and a variety of other topics. (/d. at 33-35). Presumably, under its view, the defense could introduce other categories of evidence that relate in any way to the thoroughness or good faith of the investigation. None of that has anything to do with the defendant’s guilt or innocence. With respect to Rule 403, it is not enough for the defense to say that jurors can understand that there were two separate investigations. (See id. at 35). The defense, as the proponent of this alleged evidence, has the burden to establish that the probative weight outweighs any prejudice. They cannot do so. It is the defense’s plan to introduce information about the internal case opening and charging decisions of the USAO-SDFL and this Office, a summary of media coverage, and a 13 host of other irrelevant topics.*° The circus this would create at trial vastly outweighs any '3 Tn any event, if any investigation can be attacked, it is only the New York investigation. The New York investigation led to the charging decision in this case, and law enforcement officers from Florida are being called as limited fact witnesses. The Government does not expect to elicit the NPA except perhaps to draw the sting if the Court permits cross-examination on the subject. 28 DOJ-OGR-00005583