DOJ-OGR-00007445.pdf

--- Page 1 --- The Honorable Alison J. Nathan November 11, 2021 Page 9 testimony will pose a significant risk that the jury will convict Ms. Maxwell based on their sympathy for Accuser-3, even though the conduct she alleges was legal. See 11/1/2021 Tr. at 89:21-90:02 ("You see the potential, given the legality of the conduct with respect to this individual, that the sort of feelings as to the immorality or wrongness or damage done to this individual, all of which may be true, would have the potential to prejudice the jury by convicting on a basis for which conviction the government has conceded would be inappropriate, would be unlawful."). Moreover, a limiting instruction would be insufficient to overcome the jury's likely strong emotional response to Accuser-3's testimony, leaving a substantial risk that the jury would misapply this evidence and convict Ms. Maxwell on an improper basis. See Curley, 639 F.3d at 60 (quoting United States v. Figueroa, 618 F.2d 934, 946 (2d Cir. 1980) ("limiting instructions cannot be regarded as a guaranty against prejudice")). Accordingly, the Court should exclude Accuser-3's evidence for any purpose. Should the Court Admit Accuser-3's Evidence, It Must Give the Jury An Appropriate Limiting Instruction Should the Court determine that Accuser-3's evidence is admissible under Rule 404(b), it must give the jury the following limiting instruction, as set forth in Ms. Maxwell's initial motion in limine: You have heard testimony from this witness about sexual activity between her and Jeffrey Epstein that occurred in the United Kingdom when she was above the age of 16, in Florida when she was above the age of 18, and in the U.S. Virgin Islands when she was above the age of 18. For the purposes of your deliberations, I instruct you that at all times relevant to this case the legal age of consent for sexual activity in the United Kingdom was 16 years old, the legal age of consent for sexual activity in the United States was 18 years old. 2049808.1 DOJ-OGR-00007445