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Case 1:20-cr-00330-PAE Document 494 _ Filed 11/22/21 Page 7of12 The Honorable Alison J. Nathan November 11, 2021 Page 7 While some may find this morally reprehensible, or even repugnant, it is perfectly legal and does not in any way establish a “sexual preference” for underage girls. Moreover, to the extent the government is seeking to introduce Accuser-3’s evidence to show Epstein’s sexual preference for “young girls”—which would include women who are young, but still above the age of consent like Accuser-3—that would mislead the jury and invite them to convict Ms. Maxwell based on a moral judgment of sexual activity which, in the case of Accuser-3, was entirely legal. Second, Epstein’s “sexual preference” is impermissible propensity evidence that is inadmissible under Rule 404(b). Epstein’s alleged “sexual preference” is evidence of his character. By its own admission, the government wants to use Accuser-3’s testimony to prove this aspect of Epstein’s character and argue that he acted in accordance with this character with the other Accusers. That is classic propensity evidence that cannot be admitted under Rule 404(b). See United States v. Buczkowski, No. 5:08-CR-159-F, 2009 WL 10681888, at *1 (E.D.N.C. Jan. 26, 2009) (testimony that the victim began having sex with the defendant as an adult at age 16 “is relevant only to prove propensity of the Defendant’s sexual preference for young females” and is inadmissible under Rule 404(b)). The government’s proposed bases for admitting Accuser-3’s evidence under Rule 404(b) are also unavailing. As previously argued, Accuser-3’s evidence does not show that Ms. Maxwell knew Epstein engaged in sexualized massages with underaged girls. See November 5 Ltr. at 7-8. At most, it establishes that she allegedly knew that he engaged in sexualized massages with adult women. Similarly, her evidence does not show that Ms. Maxwell had a motive to obtain underaged girls to satisfy Epstein’s sexual desires. See id. at 8. At most, it shows that she 2049808. 1 DOJ-OGR-00007443