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Case 1:20-cr-00330-PAE Document 453 Filed 11/12/21 Page 44 of 52 United States v. Graham, No. 14 Cr. 500 (NSR), 2015 WL 6161292, at *1 (S.D.N.Y. Oct. 20, 2015) (same). Finally, whatever minimal probative value the rape allegation might have would be substantially outweighed by the danger of unfair prejudice, confusing the issues, and misleading the jury. Fed. R. Evid. 403. As we previously argued in our initial Motion, rape is highly emotional and inflammatory, much more so than the “sexualized massages” alleged in the S2 Indictment. See Mot. at 2-3. Admitting testimony of an alleged rape would pose a serious risk that the “jury will convict for crimes other than those charged—or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment.” Old Chief v. United States, 519 U.S. 172, 181 (1997) (quoting United States v. Moccia, 681 F.2d 61, 63 (1st Cir. 1982) (Breyer, J.)) (discussing propensity evidence). Such evidence would also confuse the issues at trial and mislead the jury. It will cause the jurors to focus on conduct that is not relevant to the charged offense and suggests that they convict Ms. Maxwell on an improper and highly emotional basis. See United States v. Stein, 521 F. Supp. 2d 266, 273 (S.D.N.Y. 2007) (excluding other-act evidence in a conspiracy case under Rule 403 because of the “risk that this evidence would confuse the issues, cause undue delay, and be used for an improper purpose”). The Court should therefore preclude any testimony or evidence about an alleged rape. XH. REFERENCE TO ACCUSERS AS "VICTIMS" IS IMPROPER VOUCHING Without explaining its logic, and by way of cases concerning jury instructions, the government disagrees that use of the term "victim" by witnesses and the prosecution during trial amounts to improper vouching. Yet, the government offers that the only times it expects the word will be used at trial are (a) by the prosecutors during their jury addresses, and (b) in Dr. Rocchio's testimony concerning her patients. Resp. at 77. The government's legal analysis and 38 DOJ-OGR-00006924