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Case 1:20-cr-00330-PAE Document 394 _ Filed 10/29/21 Page6of9 the “jury will convict for crimes other than those charged—or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment.” See id. at 181 (quoting United States v. Moccia, 681 F.2d 61, 63 (1st Cir. 1982) (Breyer, J.)) (discussing propensity evidence). A rape allegation is also highly emotional and inflammatory, much more so than the actual conduct charged in this case (sexualized massages). “Evidence shall be excluded as unduly prejudicial when it is ‘more inflammatory than the charged crime.’” United States v. Midyett, 603 F. Supp. 2d 450, 456 (E.D.N.Y. 2009) (quoting United States v. Livoti, 196 F.3d 322, 326 (2d Cir. 1999)); cf! United States v. Abu-Jihaad, 630 F.3d 102, 133 (2d Cir. 2010) (affirming admission of evidence under Rule 403 when it was “no more inflammatory than the charges alleged in the indictment”); United States v. Roldan-Zapata, 916 F.2d 795, 804 (2d Cir. 1990) (affirming admission of evidence that “did not involve conduct any more sensational or disturbing than the crimes with which [the defendant] was charged”). The allegation that Mr. Epstein allegedly raped Accuser-1 (or anyone else) will also confuse the issues at trial and mislead the jury. The indictment does not allege that Mr. Epstein raped Accuser-1. And Ms. Maxwell is not accused of conspiring to entice or transport minors across state lines so Mr. Epstein could allegedly rape them. Again, the alleged conspiracy in this case is limited to securing “sexualized massages” for Mr. Epstein. If jurors hear an allegation about an alleged rape by Mr. Epstein, that evidence will confuse and mislead them, in addition to suggesting that they convict Ms. Maxwell on an improper and highly emotional basis. See United States v. Stein, 521 F. Supp. 2d 266, 273 (S.D.N.Y. 2007) (excluding other-act evidence in a conspiracy case under Rule 403 because of the “risk that this evidence would confuse the issues, cause undue delay, and be used for an improper purpose”). DOJ-OGR- 00005762