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Case 1:20-cr-00330-PAE Document 494 _ Filed 11/22/21 Page4of12 The Honorable Alison J. Nathan November 11, 2021 Page 4 PB Hence, even if we assume for the sake of argument that everything Accuser-3 told the government is true (which we do not concede), her testimony would not in any way establish that “minors who gave sexualized massages to Epstein were compensated.” Accuser-3, quite simply, was not under the age of eighteen and was therefore not a minor (under any relevant federal or state statute) when she allegedly i Second, as a factual matter, the government is talking out of both sides of its mouth. The government cannot offer Accuser-3’s testimony as proof of a sex trafficking conspiracy when fC Co Accuser-3’s own statements therefore eliminate any basis for the admission of her testimony as direct evidence of Count Five. As to the issue of Epstein’s sexual attraction to young women, the government is once again impermissibly attempting to use an example of entirely legal conduct as proof of a conspiracy to engage in illegal conduct. Accuser-3’s evidence does not show that Epstein was attracted to underage girls. At most, it shows that he was attracted to young women above the age of consent, which is neither a crime nor evidence of a crime. The Court recognized this distinction at the November | conference in the discussion of Accuser-3’s evidence: MS. MOE: ... I think as a matter of common sense, a jury understanding that the defendant is willing to provide Epstein with a girl at the age of 17 would certainly speak to her knowledge of his sexual preferences. THE COURT: Why doesn't it speak to a knowledge of sexual preferences to someone just above the age of consent? 2049808. 1 DOJ-OGR-00007440