DOJ-OGR-00007135.pdf

Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 84 of 127 84 LB1TMAX3 she knew about that preference because of her conduct with respect to Minor Victim-2 and with respect to Minor Victim-3. That course of conduct continued throughout a decade and is consistent. And I think the consistency of that is part of why that is powerful proof of her knowledge and intent and why it's direct evidence of the crimes charged. With respect to the question of prejudice, the government doesn't see any risk that this jury could convict on this conduct for a number of reasons. First, with respect to the concern that there's a risk that the jury would convict based on this conduct alone, I think we're confident that the Court's jury instructions will explain to the jury what the elements of the charges in the indictment are and what they aren't. And it's certainly the case in many trials that there's evidence of lawful conduct that is nonetheless offered as direct evidence of the charged crimes. For example, if this were a case involving a Hobbs Act robbery and there were evidence that on the morning of the robbery the defendant bought a ski mask, that would be lawful conduct but nonetheless offered as direct evidence of the crimes charged, and it would be peculiar to either exclude that evidence or introduce it with a limiting instruction that that is lawful conduct to suggest that in some way the Court endorses that conduct. THE COURT: The hypo is interesting. If the ski mask SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007135