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Case 1:20-cr-00330-PAE Document 410-1 Filed 11/04/21 Page 32 of 93 Count Four: Transportation of a Minor to Engage in Illegal Sexual Activity — Third Element The third element of Count Four which the government must prove beyond a reasonable doubt is that Ms. Maxwell knew that wadesidual| Jane Doe-1 pseudonym] was less than Commented [RA(46]: GOVERNMENT RESPONSE: As stated on page 25, this instruction is captured in the state law seventeen years old at the time of the acts alleged in Count Four of the Indictment. Although the text of the law says the individual must be less than eighteen, because the New York criminal law provides that a person can consent to sexual activity if she is seventeen, this element requires that Ms. Maxwell knew that [Jane Doe-1_pseudonym |#heiwdsdual was less than seventeen at the time of the offense. Adapted from Sand, et al., Modern Federal Jury Instructions, Instr. 64-19 (“Although section 2423(a) requires that the person transported be less than eighteen . . . [i]f the defendant is charged with transporting for the purpose of engaging in illegal sexual activity, and that underlying activity requires that the victim be less than some other age, then it can only confuse the jury to charge that the victim must be less than eighteen in this instruction and less than that other age elsewhere in the instructions.”). See New York State Penal Law §§ 15.20(3), 130.55 32 DOJ-OGR- 00006098