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Case 1:20-cr-00330-PAE Document 440 Filed 11/12/21 Page 38 of 40 The defense also argues that they should be permitted to elicit information that the Minor Victims engaged in voluntary acts, because that may go to the defendant’s knowledge. The Government agrees that, if the defense asks questions along those lines, the Court will need to evaluate it on a question-by-question basis. But questions that are relevant to consent but not the defendant’s mens rea, and any argument to the jury about the Minor Victims’ consent, is irrelevant and should be precluded. H. The Court Should Be Wary of the Defense Refusal to Address the Government’s Motions The defendant has largely refused to respond to the Government’s motion to preclude evidence of the defendant’s other acts, offering the defendant’s own statements, arguments sounding in nullification, or the baseless argument that the defendant was allegedly a victim of Epstein. (Def. Opp. at 49-57). The Court should accordingly preclude the defendant from opening on these subjects or attempting to elicit evidence along these lines unless and until she explains to the Court how this evidence could possibly be admissible. As explained above and in the Government’s motion, however, there is significant risk that the defense theories will contravene the Federal Rules of Evidence and the law of the Circuit to put irrelevant matters, such as the Florida investigation, before the jury. The Court should not permit the defense to open on these points without first providing notice so they can be litigated. In particular, the Government does not believe there is a good-faith basis to argue that the defendant was a victim of Epstein, such an argument would be entirely irrelevant, and it may well contravene Rule 12.2 of the Federal Rules of Criminal Procedure. The Court should allow these issues to be litigated in advance, and not at sidebar after the jury has already heard the 37 DOJ-OGR-00006554