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Case 1:20-cr-00330-PAE Document 398 _ Filed 10/29/21 Page 31 of 52 404(b) (id. at 46-47), (3) her evidence is “intrinsic” proof of the charged conspiracies and necessary to “complete the story” of the charged offenses (id. at 47-49), and (4) x HE «as under the age of 18, the age of consent under federal law, when the alleged sexual abuse took place, and that is “all that is required for evidence relating to the defendant’s exploitation of Minor Victim-3 to be direct evidence of the charged offenses” (id. at 50). The first is an argument for admission of this evidence under Rule 404(b), not as direct evidence of the conspiracy. The second simply begs the question and assumes that the government can circumvent Rule 404(b) by alleging “other act” evidence in the indictment. The third overlooks the numerous precedents in this Circuit finding that evidence of criminal offenses that are separate and distinct from the charged offenses are not admissible as direct evidence of a conspiracy. And the fourth completely misstates the law. These arguments should be rejected. First, the government argues that evidence is admissible as direct evidence of the charged conspiracies because it is relevant to show the “pattern” of abuse— including “grooming” the accusers, encouraging them to give massages to Epstein, and asking them to recruit others—and her “intent” to participate in the charged conspiracies. (/d. at 45-46). But “pattern” is just another word for “modus operandi,” which along with “intent” are bases for admission under Rule 404(b), not as direct evidence of the conspiracies. See Fed. R. Evid. 404(b) (“other act” evidence may be admissible to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident) (emphasis added); United States v. Walia, No. 14-CR-213 (MKB), 2014 WL 3734522, at *13 (S.D.N.Y. Jul. 25, 2014) (Rule 404(b) permits “other act” evidence to be admitted to prove “modus operandi’). 29 DOJ-OGR-00005986