DOJ-OGR-00006540.pdf

Case 1:20-cr-00330-PAE Document 440 Filed 11/12/21 Page 24 of 40 to put before this jury illustrates the side show the defense hopes to create. Those conspiracy theories include, among other things, as the defense would describe: (1) the Government's alleged motives for prosecuting the defendant (id. at 42-43); (2) the credibility of individuals who are not testifying at this trial and are not hearsay declarants (id. at 43-45); (3) supposed evidence relating to the Minor Victims' consent (id. at 46-49); (4) evidence of other abuse which did not involve the defendant (id. at 51-53); (5) the defendant's statements offered by the defendant (id. at 54-55); (6) arguments sounding in nullification (id. at 55-56); (7) alleged evidence—of which the Government is not aware—that the defendant was a victim of Epstein (id. at 56-57); and (8) evidence that the defendant was the prevailing party in civil litigation (id. at 57-59). The defense also now suggests that they may argue that attorneys for the Minor Victims are conspiring with their clients to manufacture evidence. (Id. at 21-22). These topics are far afield—a galaxy away—from the questions of fact to be resolved by the jury. The Government is concerned that the defense plans to exceed its limits and, therefore, has moved to preclude the defense from arguing them or offering evidence of them. The defense urges the Court not to rule on these in limine, instead providing the empty assurance that the defense understands the Federal Rules of Evidence and will only offer evidence the defense deems proper. But is for the Court—not the defense—to decide what is admissible at this trial. More troubling still, the defense brief makes clear that they plan to put these theories before the jury before the Court has an opportunity to rule on these issues, including in their opening statement. (Def. Opp. at 51 (“If Ms. Maxwell's attorneys have a good-faith belief that evidence will be admissible, they can refer to that evidence in opening statement.”)). The Court should not 23 DOJ-OGR-00006540