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Case 1:20-cr-00330-PAE Document 397 Filed 10/29/21 Page 47 of 84 corroborative of the accounts of the other Minor Victims. It is also direct evidence of the operation of the conspiracy that is probative of the defendant’s intent at the time of the offense. See Op. & Order at 10, Dkt. No. 106 (“[I]t is anticipated that the three witnesses will provide detailed and corroborating accounts of the Defendant’s alleged role in enticing minors to engage in sex acts.”); see also United States v. Curley, 639 F.3d 50, 59 (2d Cir. 2011) (explaining in an interstate stalking case that evidence of earlier abuse that was “similar in nature and severity” demonstrated a “pattern of activity that was probative of [the defendant’s] intent’). Minor Victim-3’s testimony is also direct evidence of the offense because it concerns acts taken by the defendant in furtherance of the conspiracies. In particular, aa eee eee Indeed, at a minimum, the defense motion should be denied because the Government’s proffered evidence relating to Minor Victim-3 is admissible to prove the overt acts involving Minor Victim-3 contained in the Indictment. (Indictment 4] 13(d), 19(d)). Evidence proving overt acts in the Indictment is direct evidence of the offense, and not other-acts evidence. See United States v. James, 520 F. App’x 41, 45 (2d Cir. 2013) (summary order) (“James’s possession of five pounds of marijuana on December 22, 2005, and December 2, 2010, were charged as overt acts in the indictment. Accordingly, evidence of James’s possession of marijuana on these occasions was not subject to the structures of Rule 404(b).”). The Court previously denied the defense’s motion to strike the overt acts involving Minor Victim-3 as surplusage, explaining that it “may reflect conduct undertaken in furtherance of the charged conspiracy or be relevant to prove facts such as 46 DOJ-OGR-00005830