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Case 1:20-cr-00330-PAE Document 398 _ Filed 10/29/21 Page 32 of 52 The very case the government cites in support of their position, United States v. Curley, 639 F.3d 50 (2d Cir. 2011), affirmed the district court’s decision to admit “other act” evidence of prior spousal abuse to prove “intent” and “pattern” under Rule 404(b) “with an appropriate instruction on this evidence’s limited purpose,” not as direct evidence of the conspiracy. See Curley, 639 F.3d at 59 (citing United States v. Von Foelkel, 136 F.3d 339, 340-41 (2d Cir. 1998) (per curiam) (affirming district court’s decision to admit evidence of prior domestic violence to prove defendant’s intent under Rule 404(b)). Indeed, the evidence could not have been admitted as direct evidence of a conspiracy because Curley was not charged with a conspiracy. See United States v. Curley, No. $1 08 Cr. 404 (SCR), 2009 WL 10688209, at *1 (S.D.N.Y. Jul. 15, 2009) (defendant was convicted of two counts of stalking and one count of interstate violation of a protection order). Curley therefore supports the defense’s position that the admissibility of yg © Vidence must be evaluated under Rule 404(b). Second, the government does not confront the defense’s point that simply including “other act” evidence in the indictment does not necessarily mean it is direct evidence of the conspiracy. See Mot. at 9-10. Instead, the government engages in circular reasoning by effectively arguing that (1) allegations in an indictment are not 404(b) evidence, (ii) ay BEE 2! cgations are in the indictment, (iil) therefore they are not 404(b) evidence. See Resp. at 46-47. But as the defense pointed out in its Motion, “other acts” are only admissible as evidence of a conspiracy “as long as they are within the scope of the conspiracy.’ United States v. Cummings, 60 F. Supp. 3d 434, 437 (S.D.N.Y. 2014), vacated on other grounds 858 F.3d 763 (2d Cir. 2017) (quoting United States v. Bagaric, 706 F.2d 42, 64 (2d Cir. 1983)). The government has not explained why evidence provides any proof that Ms. Maxwell “furthered” an alleged conspiracy to cause minors (she did not) to travel (she did not) 26 DOJ-OGR-00005987