DOJ-OGR-00021592.pdf

Case 22-1426, Document 78, 06/29/2023, 3536039, Page162 of 217 SA-416 M6SQmax1 47 1 cite some cases for that proposition. Watkins 667 F.3d at 265; 2 United States v. Streb, 36 F.4th 782. That's and Eighth 3 Circuit case from 2022. Courts have repeatedly concluded that 4 a minor can be the victim of undue influence even if the minor 5 initiates a sexual meeting. See, for example, United States v. 6 Lay, 583 F.3d 436 (6th Cir. 2009). I therefore overrule the 7 defendant's objection. 8 9 I next turn to the government's only objection to the 10 PSR Guideline calculation. I do find that Virginia Roberts and 11 Melissa were minor victims of sex offenses -- they were 12 trafficked and abused by the defendant and Epstein during the 13 charged period. The Guidelines require that each minor victim 14 be considered a separate count of conviction. 2G1.1.(d)1. 15 Probation department excluded Virginia and Melissa from this 16 provision only because they were not named in the indictment. 17 This is an incorrect basis for excluding them from the 18 calculation. Relying on commentary by the Commission, the 19 Second Circuit has instructed "that conduct against victims 20 other than those charged in the indictment may constitute 21 relevant conduct, and, if such conduct qualifies, should be 22 treated for sentencing purposes as though it occurred in a 23 separate count of conviction." I United States V. Wernick, 24 691, F.3d 108 (2d Cir. 2012) (citing 2G1.1 comment note 4). I 25 therefore consider Virginia and Melissa as two additional 26 groups of victims and assign each a unit under Section 3D1.4. SOUTHERN DISTRICT REPORTERS, P.C... (212) 805-0300 DOJ-OGR-00021592