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Case 1:20-cr-00330-PAE Document 387 Filed 10/29/21 Page14of21 Ee The government’s error in including Accuser-3’s allegations in the indictment does not somehow convert this evidence into proof of the charged conspiracies. Such a rule would allow the government to entirely circumvent Rule 404(b) simply by charging other act conduct in the indictment. Moreover, without a proper limiting instruction, there is a serious risk that the jury will view this lawful conduct as evidence of criminal propensity. See United States v. Dolney, No. 04-CR-159 (NGG), 2005 WL 2129169, at *2 (E.D.N.Y. Sept. 1, 2005) (benefit of applying Rule 404(b) is “the value that a limiting instruction will have in ensuring that the jury does not view the defendants’ alleged prior conduct as evidence of the defendants’ propensity to engage in criminal activity”). At the very least, it is not “manifestly clear” that the evidence related to Accuser-3 is proof of the charged Mann Act conspiracies. Accordingly, “the proper course is to proceed under Rule 404(b).” Townsend, 2007 WL 1288597, at *1 (citing Nektalov, 325 F. Supp. 2d at 372). Il. Evidence Related to Accuser-3 Is Not Admissible Under Rule 404(b) and Should be Excluded Under Rule 403 The Court should also not admit evidence related to Accuser-3 as Rule 404(b) evidence because it will be offered solely to show Ms. Maxwell’s criminal propensity and will be unfairly 10 DOJ-OGR-00005678