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Case 1:20-cr-00330-PAE Document387 Filed 10/29/21 Page16 of 21 The government’s modus operandi argument appears to rest on the premise that “srooming,” however broadly that may be defined, constitutes a distinctive pattern of criminal activity. See id.4 As the government itself pointed out, the characteristics of the modus operandi must be “sufficiently idiosyncratic to permit a fair inference of a pattern’s existence.” United States v. Sliker, 751 F.2d 477, 487 (2d Cir. 1984)); see also United States v. Walia, No. 14-—CR- 213 (MKB), 2014 WL 3734522, at *13 (S.D.N.Y. July 25, 2014) (“Rule 404(b) permits evidence of similar acts to prove a ‘signature crime,’ i.e., a modus operandi where the crimes are ‘so 3999 nearly identical in method as to ear-mark them as the handiwork of the accused.’” (quoting United States v. Mills, 895 F.2d 897, 907 (2d Cir. 1990)). Here, Accuser-3 alleges that i Pe as she is alleged to have done with the other accusers. Gov’t Mem. in Opp. to Def.’s Pretrial Motions (Dkt. 204) at 158. But engaging in social pleasantries and polite conversation does not in any way establish a unique or “signature” pattern of behavior. See Walia, 2014 WL 3734522, at *13 (prior acts that share similarities with the charged offenses do not establish a modus operandi without a “signature” pattern of conduct) (collecting cases). In sum, Accuser-3’s evidence will not be offered for any permissible purpose under Rule 404(b) and will just serve as evidence of criminal propensity. The Court should therefore exclude it. The Court should also exclude Accuser-3’s evidence under Rule 403 because it will unfairly prejudice Ms. Maxwell and mislead the jury as to the legality of the alleged conduct and the purpose of its admission. Rule 403 provides that relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the 4 Ms. Maxwell has moved separately to exclude the testimony of the government’s proposed expert witness concerning “grooming” under Federal Rules of Evidence 401, 402, 403, 404, 702, 704, and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). {2 DOJ-OGR-00005680