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Case 1:20-cr-00330-PAE Document 424 _ Filed 11/08/21 Page12 of 41 Rules 401 and 403 of the Federal Rules of Evidence state that relevant evidence is admissible when it tends to make the existence of any fact that is of consequence more or less probable than it would be without the evidence, but it may be excluded if its probative value is substantially outweighed by, among other things, the danger of unfair prejudice, confusion of the issues, and misleading the jury. “Expert evidence can be both powerful and quite misleading because of the difficulty in evaluating it. Because of this risk, the judge in weighing possible prejudice against probative force under Rule 403 . .. exercises more control over experts than over lay witnesses.” Daubert, 509 U.S. at 595 (quoting authority omitted). Among other things, the Court “must consider whether an expert’s proposed testimony would usurp the province of the judge to instruct on the law, or of the jury to make factual determinations.” Island Intell. Prop. LLC v. Deutsche Bank AG, No. 09 Civ. 2675 (KBF), 2012 WL 526722, at *2 (S.D.N.Y. Feb. 14, 2012) (citations omitted). While Federal Rule of Evidence 704(a) provides that “[a]n opinion is not objectionable just because it embraces an ultimate issue,” the Second Circuit has admonished courts to take care “lest [the expert] be allowed to usurp the function of the judge.” Marx & Co. v. Diners Club, Inc., 550 F.2d 505, 511 (2d Cir. 1977). Accordingly, courts must not admit “opinions which would merely tell the jury what result to reach.” Hygh v. Jacobs, 961 F.2d 359, 363-64 (2d Cir. 1992) (quoting Fed. R. Evid. 704 advisory committee’s note); see also United States v. Duncan, 42 F.3d 97, 101 (2d Cir. 1994) (“When an expert undertakes to tell the jury what result to reach, this does not aid the jury in making a decision, but rather attempts to substitute the expert’s judgment for the jury’s.” (emphasis in original)). Nor may an expert opine as to a party’s state of mind, credibility, intent, or motive. See LaSalle Bank Nat’! Ass’n v. CIBC Inc., No. 08 Civ. 8426 (WHP) (HBP), 2012 WL 466785, at *7 DOJ-OGR-00006223