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Case 1:20-cr-00330-PAE Document 494 _ Filed 11/22/21 Page5of12 The Honorable Alison J. Nathan November 11, 2021 Page 5 11/1/2021 Tr. at 77:3-77:9. The government could not answer the Court’s question, which was exactly on point. Setting aside that proof of Epstein’s “sexual preferences” is impermissible propensity evidence (discussed further below), at most, Accuser-3’s evidence would show that Epstein was engaged in legal sexual activity with someone over the age of consent and that Ms. Maxwell allegedly knew that he was engaged in such legal activity. Hence, her evidence is no more admissible as direct proof of the sex trafficking conspiracy than it is of the Mann Act conspiracies. The bases for admitting Accuser-3’s evidence suffer from the same logical and legal defects that the Court already identified with respect to the Mann Act counts. It should therefore not be admitted as direct evidence of Count Five. I. Accuser-3’s Evidence is Improper Propensity Evidence that Is Inadmissible Under Rule 404(b) and Rule 403 Accuser-3’s evidence is also inadmissible under Rule 404(b) and Rule 403. Recognizing that Accuser-3’s evidence will likely not be admissible as direct evidence of the charged conspiracies in light of the Court’s prior findings, the government attempts to bootstrap her evidence into the case by arguing that it is admissible for various purposes under Rule 404(b). See November 5 Ltr at 7-11. Although the government tries to frame this evidence in terms of permissible 404(b) purposes, such as Ms. Maxwell’s knowledge, motive, intent, etc., it is evident from the government’s submissions and its comments at the last two court conferences that it intends to offer this evidence for an impermissible propensity purpose; namely to establish that Jeffrey Epstein had “sexual preference” for young girls and to argue that he acted in conformity with that preference with Accuser-3 and therefore must have done so as well with the other Accusers. See id. at 7 n.2; 11/1/2021 Tr. at 77:3-77:12. Such evidence is not admissible under 2049808. 1 DOJ-OGR-00007441