DOJ-OGR-00018345.pdf

--- Page 1 --- The extracted text is as follows: **Case 1:20-cr-00330-PAE** **Document 751** **Filed 08/10/22** **Page 8 of 261** **1148** **LC6Cmax1** 1 but also of authentication under Rule 901, a proposition for which the defense cites a Ninth Circuit case from 1977, United States v. Sterns, 550 F.2d 1167, which is Ninth Circuit 1977. I disagree. Rule 901 requires that the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. Here, the government claims that the photographs are of Epstein's apartment in 2019, a claim that I understand will be provided via testimony and that the defense does not dispute. Whether those photos taken in 2019 are probative of how the apartment appeared in 1994 is a question of relevance under Rule 401 to be balanced with 403, not of authentication. See United States v. Certified Environmental Services Inc., 753 F.3d 72 at 90, which is a Second Circuit decision from 2014 I'll quote here. Quote, with respect to temporal relevance, we have held that a suggestion that an item of evidence relates to a period that is too remote goes to both the item's relevance and its weight. That case quotes itself from another Second Circuit case, Fitzgerald v. Henderson, 251 F.3d 345 at 365, Second Circuit 2001. Though, to be clear, the government, as I said, will still need to authenticate that the photos are of Epstein's apartment in 2019. In any event, even if analyzed under Rule 91, as I'll discuss below in a moment, Jane's testimony about the distinctive characteristics of Epstein's apartment captured in 2019. **SOUTHERN DISTRICT REPORTERS, P.C.** **(212) 805-0300** **DOJ-OGR-00018345**