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Case 1:20-cr-00330-PAE Document398 _ Filed 10/29/21 Page 34 of 52 NS. See id. at 49-50. According to the government, “all that is required” for ME evidence to be admissible as direct evidence of the charged conspiracies is that she was under the age of 18, the age of consent under U.S. federal law, and that Ms. Maxwell knew that Epstein intended to engage in sexual contact with her. See id. It is the government, not the defense, that apparently does not understand the law. The Mann Act conspiracies charged in the S2 Indictment each require proof that Ms. Maxwell acted with the intent that the alleged victim would “engage in sexual activity for which a person can be charged with a criminal offense.” S2 Ind. {fj 12 (citing 18 U.S.C. § 2422), 18 (citing 18 U.S.C. § 2423(a)). That element incorporates offenses under state law. See United States v. Lincoln, No. 19-CR-6047 (CJS), 2019 WL 719822, at *4 (W.D.N.Y. Dec. 23, 2019) (collecting § 2422 cases); United States v. Vickers, 708 F. App’x 732, 735 (2d Cir. 2017) (summary order) (criminal sexual activity under § 2423 includes crimes “under federal, state, or foreign law’). Indeed, the Mann Act conspiracies in the S2 Indictment charge a violation of a New York State misdemeanor as the “sexual activity for which a person can be charged with a criminal offense.” S2 Ind. ¥ 13b, 19b (citing N.Y. Penal Law § 130.55). Section 130.55 prohibits “subject[ing] another person to sexual contact without the latter’s consent.” N.Y. Penal Law § 130.55. To be guilty of Section 130.55 based on the victim’s incapacity to consent due to age, the victim must be under the age of 17. Id. § 130.05(3)(a). The government itself acknowledged this in its draft proposed jury instructions, as well as the fact that Ms. Maxwell cannot be convicted of the Mann Act conspiracies unless she knew that the alleged victim was under 17. See Gov’t Proposed Jury Instructions (“[I]n order to find that the intended acts were nonconsensual solely because of the 28 DOJ-OGR-00005989