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Case 1:20-cr-00330-PAE Document 410-1 Filed 11/04/21 Page 22 of 93 Count Two: Enticement to Engage in Illegal Sexual Activity — Third Element The third element of Count Two which the government must prove beyond a reasonable doubt is that +he-defendantMs. Maxwell acted with the intent that theindiideal [Jane Doe-1_ pseudonym] would engage in sexual activity with Jeffrey Epstein for which any person can be charged with a criminal offense under New York law. “Intentionally” Defined A person acts intentionally when the act is the product of her conscious objective, that is, when she acts deliberately and purposefully and not because of a mistake or accident. Direct proof of a person’s intent is almost never available. It would be a rare case where it could be shown that a person wrote or stated that, as of a given time, she committed an act with a particular intent. Such direct proof is not required. The ultimate fact of intent, though subjective, may be established by circumstantial evidence, based upon the defendant’s outward manifestations, her words, her conduct, her acts and all the surrounding circumstances disclosed by the evidence and the rational or logical inferences that may be drawn from them. Significant or Motivating Purpose __—1 Commented [CE29]: The defense requests adding this instruction, which is adapted from Sand and United States v. Vargas-Cordon, 733 F 3d 366 (2d Cir 2013) See Sand, Instr 64-4, 64-18; Vargas-Cordon, 733 F 3d at 375-76; R Kelly Jury Instructions at 43; see also Sand, Instr 64-9, Comment (“The question of multiple motives for the interstate travel has not arisen in any prosecution under section 2422(a)... If a defendant were to argue that the the individual to travel, then the last paragraph of Instruction 64-4, above, should be incorporated into the charge ~) Commented [RA(31]: The Government proposes “the individual” per its comments on page 18 Commented [RA(32]: GOVERNMENT RESPONSE: The but it does oppose the use of an “and” rather than an “or” reflected in Sand or the R Kelly instructions and suggests a higher bar than is required Commented [RA(33]: The Government proposes “the individual” per its comments on page 18 In order to establish this element, it is not necessary for the government to prove that the illegal sexual activity was the defendant-dMs. Maxwell’s sole p pose for encoura ging |[Jane government must prove beyond a reasonable doubt, however, that a si purpose of encouraging [Jane Doe-1| pseudonym] to travel across state lines was that she would engage in illegal sexual activity with Jeffrey Epstein. In other words, the illegal sexual activity must not have been merely incidental to the trip. Violation of New York Criminal Law 22 DOJ-OGR-00006088