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Case 1:20-cr-00330-PAE Document 410-1 Filed 11/04/21 Page 26 of 93 Count Four: Transportation of a Minor to Engage in Illegal Sexual Activity — The Elements In order to prove he defendants. Maxwell guilty of Count Four, the Government must establish each of the following three elements of the crime beyond a reasonable doubt: First, that the defendantMs. Maxwell knowingly transported asindsideal[Jane Doe-1_pseudonym] in interstate orfereten-commerce: alleged in the Indictment, Second, that the-defendantMs. Maxwell transported theindsideal[Jane Doe-1 pseudonym] with the intent that theindidualshe would engage in ax+sexual activity with Jeffrey Epstein for which any person can be charged with a criminal offense under New York law; and Commented [CE37]: The defense is aware that the Second Circuit has held that it is not necessary for the defendant to know the age of the victim when the charged offense is transporting a minor for the purposes of prostitution See United States v. Griffith, 284 F 3d 338, 350-51 (2d Cir 2002) However, Count Four charges Ms Maxwell with transporting a minor for the purpose of engaging in illegal sexual activity under Section 130 55 of the New York Penal critical element of the underlying offense in Count Four — Ms Maxwell's conduct is not illegal unless Jane Doe-1 was under the age of consent in New York when the alleged sexual activity took place Accordingly, to be guilty of Count Four, the government must prove that Ms Maxwell knew that Jane Doe-1 was under 17 years old at the time of the acts alleged in Count Four See Sand, Instr 64-19. Comment (“[W]Jhen the defendant is charged with transportation for the purpose of engaging in illegal sexual activity, and the age of the victim is an element of that underlying offense, then there is good reason to require proof of age because that fact will often be the critical element which makes defendant's conduct illegal ~); see also United States v. Murphy, 942 F 3d 73, 79-84 (2d Cir 2019) (holding under 18 US C § 2423(b) that a defendant must know the age of the victim where the victim's age distinguishes lawful from unlawful conduct) than seventeen years old at the time of the acts alleged in Count Four of the Indictment. Count Four also relates to M4neetettm +[Jane Doe-1 pseudonym] during the time period 1994 to 1997. Adapted from Sand, et al., Modern Federal Jury Instructions, Instr. 64-16: the charge of the Hon. Richard J. Arcara in United States v. Vickers, 13 Cr. 128 (RIA) (W.D.N.Y.), aff'd, 708 F. App’x 732 (2d Cir. 2017); and the charge of the Hon. Thomas P. Greisa in United States v. Gilliam, 11 Cr. 1083 (TPG), aff'd, 842 F.3d 801, 805 (2d Cir. 2016). Commented [RA(38R37]: GOVERNMENT RESPONSE: Because the defendant must intend to violate the New York state law, the instruction on the New York state law in Count Two requires the defendant to know that the relevant Minor Victim was under 17 at the time That instruction is Accordingly, the defense’s proposal is redundant with the language in the New York state law instruction It is more accurate to include the knowledge requirement in the New under-17 knowledge requirement Federal law otherwise only requires that the victim be under 18 26 DOJ-OGR- 00006092