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Case 1:20-cr-00330-PAE Document 492 Filed 11/22/21 Page1i1of13 Page 11 is hardly so far afield of the conduct as to be irrelevant under Rule 404(b), and should be admitted* C. Rule 403 The significant probative value of this evidence is not substantially outweighed by any unfair prejudice. First and foremost, as all agree, in addition to a similar acts instruction, the parties’ joint request to charge proposes that the jury be instructed that it cannot convict the defendant solely on the basis of evidence relating to Minor Victim-3, and that an element of the Mann Act offenses is that the victim must be younger than seventeen. That is, the jury will be told in three different ways during the jury instructions that evidence relating to Minor Victim-3, on its own, cannot satisfy the elements of the offense. There is accordingly no risk that the jury will be confused and convict because they think the defendant’s conduct with Minor Victim-3, in isolation, violated some law. In any event, the touchstone of Rule 403 prejudice analysis in this context is whether the evidence admitted under Rule 404(b) is “more sensational or disturbing” than the charged crimes. United States v. Rosemond, 958 F.3d 111, 125 (2d Cir. 2020). That is not the case here. Minor Victim-3’s account of sexual exploitation fits neatly into the pattern that the other Minor Victims will describe. It is not more sensational or disturbing—and even the defendant has not suggested otherwise. (See Def. Mot. 4 at 12-13, Dkt. No. 387; Def. Reply at 29-30, Dkt. No. 398; 11/01/21 Tr. at 82:22-83:5). Instead, the defense argues that it will be prejudiced if Minor Victim-3 states that she was “sexually abused” by Epstein. (Def. Mot. 4 at 13, Dkt. No. 387; see 11/01/21 Tr. at 82:22-83:5). According to the defense, this will suggest to the jury that the defendant engaged in illegal conduct > The cases the defendant relies on to show that Minor Victim-3 is not direct evidence of the offense generally admitted that evidence under Rule 404(b). (See Gov’t Opp at 48 n.11, Dkt. No. 397). DOJ-OGR-00007428