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Case 1:20-cr-00330-PAE Document 492 Filed 11/22/21 Page12o0f13 Page 12 as to Minor Victim-3, and it would elicit sympathy from the jury. Minor Victim-3 will not be asked to testify about a legal conclusion, nor will she do so. She will simply describe her factual experience. In its briefing, the Government often describes these events as “sexual abuse” and Minor Victim-3 as a “victim” because the sexual contact was unwanted and traumatic.® But the Government will not seek to elicit that phrase from Minor Victim-3. Accordingly, in the Government’s view, if this evidence is admitted under Rule 404(b) rather than as direct evidence, there is no reason for anything more than the normal Rule 404(b) instruction at the time this evidence is offered.’ But the Government would not object to a limiting instruction that repeated the expected jury charge, namely, that the jury cannot convict the defendant on the basis of Minor Victim-3’s testimony alone. An instruction that the defendant’s conduct was legal at the time would seriously risk misleading the jury into thinking that, because it was “legal,” it in no way tended to show the defendant’s culpability of the charged crimes. And the defense has also not established that such an instruction is accurate. The defense has not briefed in detail whether the sexual contact was lawful under other U.K. laws concerning prostitution or nonconsensual sexual contact. Absent such a determination of foreign law, the Court should not instruct the jury that any conduct occurring overseas was or was not “legal.” If the Court were to give such an instruction, however, the Government would request that ® As noted, the Government is previewing this in order to accurately describe the expected testimony for the Court. The relevance of Minor Victim-3’s testimony does not turn on whether any sexual contact was consensual, because victim consent is not relevant to any crimes charged in the Indictment. (See 11/01/21 Tr. 75:9-76:9). 7 The Government proposes the following text, adapted from Sand: “You may not consider this evidence as any kind of reflection on the defendant’s character or propensity to commit the crimes charged in this indictment. This evidence may be considered by you only to the extent that it bears upon the defendant’s knowledge, intent or motive to commit the acts charged in the indictment, or as evidence that the defendant engaged in a common plan.” Sand, Instr. 5-25. DOJ-OGR-00007429