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Case 1:20-cr-00330-PAE Document 387 Filed 10/29/21 Page15of21 prejudicial to Ms. Maxwell and will mislead the jury into believing that the alleged sex acts between Epstein and Accuser-3 were unlawful. The Second Circuit takes an “inclusionary approach” to Rule 404(b) evidence, which admits “other act” evidence “that does not serve the sole purpose of showing the defendant’s bad character and that is neither overly prejudicial under Rule 403 nor irrelevant under Rule 402. Curley, 639 F.3d at 56 (citing United States v. Pascarella, 84 F.3d 61, 69 (2d Cir. 1996)). The inclusionary approach, however, does not permit the government “‘to offer, carte blanche, any prior act of the defendant in the same category of [activity].” McCallum, 584 F.3d at 475 (quoting United States v. Garcia, 291 F.3d 127, 137 (2d Cir. 2002)). If other act evidence is offered for the purpose of establishing the defendant’s knowledge or intent, the government must “identify a similarity or connection between the two acts that makes the prior act relevant to establishing knowledge of the current act.” /d. (quoting Garcia, 291 F.3d at 137). The government has argued that the conduct alleged by Accuser-3 is admissible under Rule 404(b) to prove Ms. Maxwell’s knowledge, intent, and modus operandi. See Gov’t Mem. in Opp. to Def.’s Pretrial Motions (Dkt. 204) at 167. This argument is unavailing. Accuser-3’s evidence could not possibly be proof that Ms. Maxwell knew of Epstein’s “attraction to minor girls” and knew that Epstein used massage to initiate sexual contact “with minor girls” because Accuser-3 was not a minor when the alleged sex acts took place. /d. For the same reason, Accuser-3’s evidence could not possibly be proof that Ms. Maxwell “intended for minor girls to engage in sex acts with Epstein.” Jd. 3 As noted in Ms. Maxwell’s Motion in Limine to Exclude the Government’s Rule 404(b) Evidence, the government did not give proper 404(b) notice with respect to any of its proposed 404(b) evidence, which includes Accuser-3’s evidence. Nevertheless, we respond on the merits to the admissibility of Accuser-3’s evidence under Rule 404(b) in the event the Court determines that the government’s additional disclosures concerning Accuser-3 in its Memorandum in Opposition to Defendant’s Pretrial Motions are sufficient to satisfy its notice obligations under Rule 404(b). See Gov’t Mem. in Opp. to Def.’s Pretrial Motions (Dkt. 204) at 157-169. 11 DOJ-OGR-00005679