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Case 1:20-cr-00330-PAE Document 444 _ Filed 11/12/21 Page17 of 21 issues, or misleading the jury, or by considerations of undue delay, [or] waste of time.” Fed. R. Evid. 403. According to the government, Accuser-3 is expected to testify that she was “sexually abused” by Epstein, not because she was underage and incapable of consent by law, but because her “subjective experience” of these incidents was that they were “traumatic, exploitative, and abusive.” Gov’t Mem. in Opp. to Def.’s Pretrial Motions (Dkt. 204) at 162 n.57. If Accuser-3 is allowed to testify that she felt she was “sexually abused” by Epstein, the jury will naturally assume that the alleged sex acts were illegal, when they were not. Indeed, even if she is not allowed to use the phrase “sexual abuse,” the mere fact that Accuser-3 will be testifying about alleged sex acts that she participated in with a much older man when she was 17 years old will likely lead the jury to assume that the conduct was illegal, especially after they have heard the expected testimony of the other accusers in this case. Hence, there is a strong likelihood that the jury will be misled by Accuser-3’s evidence and will misapply it in evaluating Ms. Maxwell’s guilt or innocence to the charged Mann Act conspiracies, both of which require that Ms. Maxwell acted with the intent that the accusers would engage in illegal or criminal sexual activity. This risk substantially outweighs the limited probative effect of Accuser-3’s evidence. Even if the Court were to give the jury an appropriate limiting instruction, there is a substantial risk that it would not be sufficient to ensure that the jury did not misinterpret or misapply this evidence. See Curley, 639 F.3d at 60 (quoting United States v. Figueroa, 618 F.2d 934, 946 (2d Cir. 1980) (“limiting instructions cannot be regarded as a guaranty against prejudice’”’)). Accordingly, the Court should exclude Accuser-3’s evidence. 13 DOJ-OGR-00006643