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Case 1:20-cr-00330-PAE Document398 _ Filed 10/29/21 Page19 of 52 2. The government has apparently abandoned efforts to introduce her testimony as Rule 404(b) evidence. In their response, the government still fails to comply with the new Rule 404(b) notice requirements. First, they do not actually identify the evidence with any specificity, especially with respect to the "exhibits" that they hope to introduce through her. Second, while they use the words "plan and preparation" or "knowledge," they fail to explain how those uses of the testimony are independent of the character / propensity inference banned by Rule 404(b). How are the process and frequency of massages or the sexual nature of massages after the period of the conspiracy proof of a plan or preparation, apart from the propensity inference? A plan or preparation usually comes before an event. Planning or preparing for something after it has occurred can only be based on an assumption that because you are the kind of person who solicits underage massages later, you must have been the kind of person to do so earlier. Similarly, knowledge after the end of the conspiracy is not the same as knowledge at the time of or before the purported charged acts occurred, except by way of propensity. Finally, unspecified exhibits, many of which appear to have been written after the conspiracy (e.g., GX 505 — dated Feb. 14, 2005) cannot likewise be proof of the charged crimes which were allegedly completed before J showed up. Because the government makes no effort to argue the non-propensity purpose for these uses Of J Via Rule 404(b), and failed to give notice of the purposes or reason in advance in any event, this Court should exclude the evidence on this ground. 3. ET constitutes an impermissible constructive amendment and variance to the Indictment. Finally, what is clear from the government's proffer in their Response, the anticipated testinory © {rs EES. will serve as an improper constructive 13 DOJ-OGR-00005974