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Case 1:20-cr-00330-PAE Document 494 _ Filed 11/22/21 Page2of12 The Honorable Alison J. Nathan November 11, 2021 Page 2 anticipated testimony that might be admissible as Rule 404(b) evidence with respect to the Mann Act conspiracies and propose an appropriate limiting instruction. See 11/1/2021 Tr. at 88:5-16. Despite being given these clearly defined tasks, the government spends a significant portion of its November 5 letter rearguing its position that the evidence related to Accuser-3 is direct evidence of the Mann Act conspiracies charged in Counts One and Three of the Indictment. See 11/5/2021 Ltr. at 5-6. The Court has already correctly determined that Accuser-3’s evidence is not direct proof of the Mann Act conspiracies and cannot be offered for that purpose: The evidence related to alleged Victim-3, as the government describes her, is not direct evidence of the conspiracy charged in Counts One and Three of the indictment. Counts One and Three charge the defendant with conspiracy to entice minors to travel to engage in illegal sex acts and conspiracy to transport minors with intent to engage in criminal sexual activity. The parties agree that alleged Victim-3 was 17 at the time she was acquainted with the defendant and Epstein in London, England where the age of consent is 16. Moreover, she can't recall, and the government wouldn't be able to establish that she was invited to travel with the defendant when she was 17 or 18. And because the alleged victim was over the age of consent in all relevant jurisdictions and, therefore, any alleged sexual activity was lawful, the alleged conduct does not arise out of the same transactions or series of transactions as the charged offense. It's not inextricably intertwined with the evidence, again with respect to the Mann Act, and it's not necessary to complete the story of the crime on trial, so I don't think it can be direct evidence of the Mann Act counts. 11/1/2021 Tr. at 86:9-87:4 (emphasis added). In so finding, the Court rejected all of the reasons that the government offers (again) to admit this evidence as direct proof of the Mann Act conspiracies. The government has given the Court no reason to change its initial finding and it should decline to do so. 2049808. 1 DOJ-OGR- 00007438