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Case 1:20-cr-00330-PAE Document 438 Filed 11/12/21 Page 36 of 54 v. Armstrong, 517 U.S. 456, 463 (1996) (“[S]o long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute . . . generally rests entirely in [the prosecutor’s] discretion.” (internal quotation marks omitted)). Defendants are permitted to challenge the motives for a prosecution by seeking dismissal of an indictment due to vindictive or selective prosecution. See, e.g., United States v. Avenatti, 433 F. Supp. 3d 552, 558, 562-64, 576 (S.D.N.Y. Jan. 15, 2020) (denying vindictive and selective prosecution claims). Such challenges, however, are issues “for the court rather than for the jury.” United States v. Farhane, 634 F.3d 127, 167 (2d Cir. 2011) (quoting Regan, 103 F.3d at 1082); see Fed. R. Crim. P. 12(b)(3)(A)(iv) (listing, among pretrial motions, “a defect in instituting the prosecution, including . . . selective or vindictive prosecution’’). Accordingly, courts have sustained objections or precluded defendants from arguing to the jury about the Government’s motives. See Farhane, 634 F.3d. at 166-67 (affirming a sustained objection to a defense closing argument that “the government had targeted him for prosecution based on his religion”); United States v. Duncan, No. 18 Cr. 289 (SHS), 2019 WL 2210663, at *3 (S.D.N.Y. May 22, 2019) (“[T]o the extent Locust seeks to highlight the fact that he was not a target of the investigation to suggest that the government’s true targets were the doctors and lawyers allegedly involved in the conspiracy and to draw attention to their absence from this case, the Court has already ruled that such argument is improper.”). The defense is free to argue that the defendant is not guilty. However, offering evidence or argument to claim the Government is prosecuting the defendant because Epstein is dead, as a scapegoat for Epstein, or for any other improper motive, is impermissible—and untrue. The 35 DOJ-OGR-00006396