DOJ-OGR-00014364.pdf

--- Page 1 --- **Document Extraction** **Case Information:** * Case Number: 1:20-cr-00330-PAE * Document Number: 765 **Document Details:** * Filed Date: 08/10/22 * Page Number: 60 of 95 **Text Extraction:** 1. (Jury not present) 2. THE COURT: All right. Mr. Everdell. 3. MR. EVERDELL: Thank you, your Honor. The next page 4. we have is page 54, instruction 39, the conscious avoidance 5. instruction. Your Honor, on that, the defense objects to this 6. being included, this instruction being included in the charge. 7. I think, as the Court is aware, to include an 8. instruction on conscious avoidance, you have to establish two 9. prongs. First is that the defendant has to assert some lack of 10. specific aspect of knowledge required for conviction. I don't 11. think we're disputing that. But the second prong is that there 12. must be an appropriate factual predicate for the charge. And 13. here, your Honor, the government's theory of the case and the 14. proof that's been elicited through the testimony is that she 15. was an active participant in all aspects of the charges. There 16. has been testimony by all of the witnesses that she was not 17. only participating and facilitating the sexual encounters but 18. that she participated. So we have testimony from Jane that she 19. was involved, that Ms. Maxwell was involved in the group 20. sexualized massages. We had testimony from Annie that the 21. topless massage was done by Ms. Maxwell; she rubbed the top 22. part of her chest during the topless massage. We had testimony 23. from Carolyn that Ms. Maxwell groped her breasts and commented 24. upon her hips. These are all active-participant measures. 25. This is someone that's not consciously avoiding. **Footer Information:** * SOUTHERN DISTRICT REPORTERS, P.C. * (212) 805-0300 * DOJ-OGR-00014364