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Case 1:20-cr-00330-PAE Document 439 _ Filed 11/12/21 Page 45 of 69 “TE]vidence is only excluded when its probative value is substantially outweighed by the prejudice of jury confusion.” Jd. (emphasis in original).”* 2. Discussion After a roughly two-year investigation during which the Palm Beach FBI interviewed dozens of alleged victims of Epstein—none of whom implicated Ms. Maxwell, including a: USAO-SDFL did not charge Ms. Maxwell. Instead, the USAO-SDFL charged Epstcin whom 2c accused of facilitating Epstein’s alleged sex trafficking. The fact chal i implicated J and only later implicated Ms. Maxwell is directly relevant to the credibility of qg and the government’s acceptance of her later testimony against Ms. Maxwell in 2020, which forms the basis of the sex trafficking offenses charged in Counts Five and Six of the S2 Indictment. See United States v. Borrero, No. 13 Cr. 58 (KBF), 2013 WL 6020773, at *2 (S.D.N.Y. Nov. 1, 2013) (government’s decision to charge two different people for the same crime on two different occasions based on the testimony of the same cooperating witness is relevant “to the witness’s credibility” and “the government’s view of the [witness’s] credibility”). Counts Five and Six of the S2 Indictment charge Ms. Maxwell with conspiracy to commit sex trafficking and a substantive sex trafficking offense for allegedly recruiting or obtaining a engage in commercial sex acts with Epstein. See S2 Ind. (Dkt. 187) 44] 22-27. But in her first and only interview with the Palm Beach FBI on August 7, 2007, 4 The government relegates its discussion of White to a footnote in its Applicable Law section, even though it is the controlling Second Circuit precedent on this issue. See Gov’t Mot.at 23 n.8. Instead, the government cites several cases that were decided before White rejected the categorical approach to precluding evidence of prior charging decisions. See id. at 22-23 (citing United States v. Boyle, No. 08 Cr. 523 (CM), 2009 WL 5178525 (S.D.N.Y. Dec. 23, 2009); United States v. Rodriguez, 582 F. Supp. 2d 486 (S.D.N.Y. 2008); and United States v. Carneglia, No. 08 Cr. 76 (JBW), 2009 WL 185725 (E.D.N.Y. Jan. 27, 2009). The Court should give these cases little or no weight. af DOJ-OGR-00006462