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Case 1:20-cr-00330-PAE Document 440 Filed 11/12/21 Page 35 of 40 E. The Government’s Alleged Motives Are Irrelevant The defense claims it is proper to cast aspersions on the Government’s alleged motives for prosecuting the defendant, and they claim they should be permitted to advance theories that Epstein’s death motivated the “timing of the charges” in this case. (Def. Opp. at 42). The defense concedes that they have not established a vindictive or selective prosecution claim. (/d.). That is because they have no legitimate theory based on the Government’s supposed motives. But the defense is not permitted to direct this argument to the jury simply because they lack a basis to make that argument to the Court. (See Gov’t Mot. at 34-35 (“The Second Circuit has explained that claims of purported government misconduct must be ‘directed to the court rather than jury.’”” (quoting United States v. Regan, 103 F.3d 1072, 1082 (2d Cir. 1997)))). As the Government said in its motions, the defense is free to argue that Epstein is guilty and the defendant is innocent. (/d. at 35-36). They are not free, however, to argue that— irrespective of guilt or innocence—the defendant is being prosecuted because Epstein is dead. Certainly, the defense could not make that argument absent any evidence, and no agent—including the Florida and New York case agents—can offer hearsay testimony about why they think prosecutors charged or did not charge certain individuals at certain times. And to be clear, the agents would testify that this case was charged promptly after the Government was in a position to prove the defendant’s guilt. 34 DOJ-OGR-00006551