DOJ-OGR-00021148.pdf

Case 22-1426, Document 59, 02/28/2023, 3475902, Page101 of 113 CONCLUSION For the foregoing reasons, all counts should be vacated and the indictment dismissed. However, based on the preceding arguments, the Court may determine that only Counts Three and Four or Three and Six should be reversed. In either scenario, the Court should order a new trial on the remaining count. This is due to the prejudice having resulted from the admission of evidence to prove Counts Three and Four or Three and Six. United States v. Rooney, 37 F.3d 847, 855 (2d Cir. 1994). In weighing a claim of prejudicial spillover, courts look at several factors, one being the "similarities and differences" between the evidence on the reversed counts and the remaining counts. Id. When the evidence admissible to prove the remaining counts arises from a distinct set of facts in a different time-period, involving a different complainant and the evidence admissible to prove the dismissed counts would not have been admissible to prove the remaining count, courts will find prejudice warranting a new trial on the remaining counts. Id. Here, Counts Four and Six arise from distinct facts, time-periods, and complainants. Count Four is based on the testimony of Jane concerning conduct between 1994 and 1997, while Count Six is based on the testimony of Carolyn concerning conduct between 2001 and 2004. Plainly, much of the evidence to prove the dismissed counts would not have been admissible to prove the remaining 86 DOJ-OGR-00021148