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Case 1:20-cr-00330-PAE Document 388 Filed 10/29/21 Page8of14 Maxwell did not leave the country, or make plans to leave the country, at any point in the year that elapsed between Epstein’s arrest and her own arrest. Moreover, the government can offer no proof to counter the evidence proffered by Ms. Maxwell in her bail submission and instead relies on its vague and unsubstantiated “belief” that these actions reveal Ms. Maxwell’s intent to evade law enforcement. See 12/18/2020 Gov’t Mem. in Opp. to Def’s Renewed Mot. for Release (Dkt. 100) at 21 (“[T]here is still reason to believe that the defendant was hiding not just from the press, but also from law enforcement.”). Any evidence or argument regarding Ms. Maxwell’s purported “flight” or consciousness of guilt lacks any factual foundation and would be highly prejudicial. It should therefore be excluded.4 ARGUMENT I. Applicable Law “TT]t is widely acknowledged that evidence of flight or related conduct is ‘only marginally probative as to the ultimate issue of guilt or innocence.’” United States v. Myers, 550 F.2d 1036, 1049 (5™ Cir. 1977) (quoting United States v. Robinson, 475 F.2d 376, 384 (D.C. Cir. 1973)). While flight can, in some circumstances, evidence consciousness of guilt, “a satisfactory factual predicate must exist from which the jury can infer consciousness of guilt from flight” before such evidence may properly be admitted. A/-Sadawi, 432 F.3d at 424 (citations omitted). “Since flight evidence can be powerful, the requirement of a sufficient factual predicate ‘ensures that the evidence is probative in a legal sense and protects the defendant against the possibility of the jury drawing unsupported inferences from otherwise innocuous behavior.’” /d. (quoting United States v. Amuso, 21 F.3d 1251, 1260 (2d Cir. 1994)). *Tn its Opinion and Order denying Ms. Maxwell’s second bail application, the Court did not resolve whether Ms. Maxwell’s conduct after the arrest of Jeffrey Epstein was designed to protect herself from the press or evade law enforcement. See 12/28/2020 Op. and Order (Dkt. 106) at 19. We submit that it was clearly the former. At the very least, there is no foundation for the government to assert the latter. DOJ-OGR-00005695