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Case 1:20-cr-00330-PAE Document 438 Filed 11/12/21 Page 25 of 54 2. Discussion The defense should be precluded from offering evidence or making arguments about (1) the fact that the USAO-SDFL entered into a non-prosecution agreement with Epstein in 2008; or (2) the fact that the USAO-SDNY first indicted Epstein alone in 2019 before it indicted the defendant. Such evidence is irrelevant, would confuse and mislead the jury, and calls for hearsay. First, those facts are irrelevant. These charging decisions say nothing at all about guilt or innocence and fail to make more or less probable any fact of consequence. Such decisions are often made after consideration of multiple factors, including, for example, available prosecutorial or investigative resources and a desire not to disrupt an ongoing investigation. Even if a decision not to prosecute is based upon the prosecutor’s view of the available evidence, it is irrelevant both because investigations routinely uncover additional evidence and because it is not the prosecutor’s view of the evidence that matters, but rather that of the jury. Those points are particularly true here. It is entirely speculative to assume that the USAO-SDFL did not charge the defendant in 2008—or immunize her by name in the non- prosecution agreement—and that this Office did not charge her in 2019 solely because it lacked the evidence to do so and that such evidence could not have been developed had the investigation focused its resources on the defendant. See Hill, 2014 WL 198813, at *2 (“Any connection between purported concerns about [a witness’s] identification [of the defendant] and the decision not to charge in 1997 would thus be based on speculation and conjecture by government witnesses who did not decide whether to charge [the defendant] in 1997.” (emphasis in original)). And because signification portions of the Government’s evidence were developed 24 DOJ-OGR-00006385