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Case 1:20-cr-00330-PAE Document 387 Filed 10/29/21 Page12 of 21 should not be admitted as evidence of the conspiracies. See Cummings, 60 F. Supp. 3d at 437 (quoting Bagaric, 706 F.2d at 64); see also United States v. Benussi, 216 F. Supp. 2d 299, 311 (S.D.N.Y. 2002), aff'd sub nom. United States v. Salmonese, 352 F.3d 608 (2d Cir. 2003) (the “scope of the conspiratorial agreement” is the key to determining whether “an overt act may properly be regarded as in furtherance of the conspiracy” (quoting Grunewald v. United States, 353 U.S. 391, 397 (1957)). In its opposition to Ms. Maxwell’s motion to strike, the government argued that because a conspiracy “does not require a completed substantive crime,” Accuser-3’s allegations could still be admitted as direct proof of the charged conspiracies even though she did not travel as a minor or engage in illegal sex acts because Ms. Maxwell allegedly “groomed” her to engage in those sex acts. Gov’t Mem. in Opp. to Def.’s Pretrial Motions (Dkt. 204) at 161-163 (citing Salinas v. United States, 522 U.S. 52, 65 (1997)). That argument misses the mark. While it is true that a conspiracy does not require a completed substantive crime, Salinas itself states that “[a] conspirator must intend to further an endeavor which, if completed, would satisfy all of the elements of a substantive criminal offense.” Salinas, 522 U.S. at 65. As to Accuser-3, the completed endeavor—i.e., her alleged sex acts with Epstein—was not a substantive criminal offense. Even if we accept her allegations as true (which we do not), there is nothing unlawful about encouraging an adult to engage in entirely lawful sex acts. Hence, Accuser-3’s allegations are not direct proof of the charged conspiracies regardless of whether Ms. Maxwell allegedly “sroomed” her (which she did not). The Court should not admit Accuser-3’s allegations as intrinsic proof of the charged conspiracies either. See Nektalov, 325 F. Supp. 2d at 370 (listing three categories of “intrinsic” proof not considered Rule 404(b) evidence). The Mann Act conspiracies in the S2 Indictment DOJ-OGR-00005676