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Case 1:20-cr-00330-PAE Document 493 Filed 11/22/21 Page5of6 Page 5 harmed by conduct in furtherance of the conspiracy—and she was—then she is a “victim” under the relevant statutes. Finally, Minor Victim-3 is also a “victim” for purposes of Federal Rule of Evidence 412, because she is clearly someone who “can reasonably be characterized as a ‘victim of alleged sexual misconduct.’” Fed. R. Evid. 412, Advisory Committee Notes (1994). Given Rule 412’s broad application in not just criminal cases but also civil cases such as claims of sexual harassment, see Wolak v. Spucci, 217 F.3d 157, 160 (2d Cir. 2000), it cannot be read to define victims as only those individuals whose victimization would alone satisfy all of the elements of a charged crime. As set forth above, Epstein’s conduct with respect to Minor Victim-3 is plainly “alleged sexual misconduct,” and therefore she is a victim as defined in Rule 412. For these reasons, Minor Victim-3 is a “victim” under the provisions of federal law discussed above. Moreover, the Government respectfully submits that even if its reading of these provisions is incorrect, that does not affect the admissibility of Minor Victim-3’s testimony as direct evidence: evidence that does not itself establish every element of the charged crime may nevertheless be admissible as direct evidence. See, e.g., United States v. Gonzalez, 110 F.3d 941, 942 (2d Cir. 1997); United States v. Carboni, 204 F.3d 39, 44 (2d Cir. 2000). And Minor Victim- 3’s status as a “victim” under the foregoing provisions of law certainly does not affect the admissibility of her testimony under Rule 404(b), which permits the admission of other act testimony that almost by definition does not satisfy the elements of the charged crime. The testimony should be admitted. DOJ-OGR-00007435