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Case 1:20-cr-00330-PAE Document 453 Filed 11/12/21 Page 35of52 victim’s age, you must find that the defendant knew that the victim was less than seventeen years old.”) (emphasis added). It is unclear whether the government is now claiming that to adm evidence as proof of the Mann Act conspiracies, it only needs to prove that was under the age of 18 at the time of the alleged abuse and that Ms. Maxwell did not need to know anything about I age, or that Ms. Maxwell only needed to know that yg HE «2s under the age of 18. Either one is a misstatement of the law. For “sexual activity” to be “criminal,” it must be illegal under the laws of the jurisdiction where the sex acts allegedly took place. If those crimes are based on lack of consent due to age, it is only illegal if the alleged victim is under the age of consent in that jurisdiction. And according to the government’s own proposed jury instructions, Ms. Maxwell can only be found guilty of the Mann Act conspiracies if she knew |] (and the other alleged victims) were under the age of consent in the particular jurisdictions where the sex acts allegedly took place. Because BE “2s, at all times, over the age of consent in the relevant jurisdictions, her evidence is not within the scope of the charged conspiracies and is therefore not admissible as direct evidence. At the very least, because it is not “manifestly clear” that evidence is proof of the charged conspiracies, “the proper course is to proceed under Rule 404(b).” United States v. Townsend, No. 81 06 CR. 34 (JFK), 2007 WL 1288597, at *1 (S.D.N.Y. May 1, 2007) (citing United States v. Nektalov, 325 F. Supp. 2d 367, 372 (S.D.N.Y. 2004)). <Vidence should also be excluded under Rule 404(b) and Rule 403. As argued in our initial Motion, evidence that Ms. Maxwell allegedly encouraged an adult to engage in legal sexual activity is not, in any way, evidence of her intent to facilitate Epstein’s 29 DOJ-OGR-00006915