DOJ-OGR-00011110.pdf

Case 1:20-cr-00330-PAE Document 690 Filed 11/19/21 Page 2 of 23 massages progressed to involve sexual activity, and Ms. Maxwell's role in facilitating those massages. Based on all of the information now before the Court, including a substantially more detailed proffer by the Government as to the anticipated testimony, see Gov. Supp. Ltr. at 2-3 (Nov. 5, 2021); see also Dkt. No. 452 at 42-43, the Court concludes that some of the anticipated testimony may serve as direct evidence of the Mann Act counts. The Government rightly acknowledged at the November 1 pretrial conference that Ms. Maxwell cannot be found guilty on this witness's testimony alone for any of the crimes charged in the Indictment. Nov. 1, 2021 Tr. at 67:12-25, 68:13-19, 69:4-9, 70:23-71:2, 72:22-25. As the Government acknowledged, with respect to the jury's determination in this case, this witness is not a victim of any of the crimes charged in the Indictment. See id. at 69:4-9; Nov. 10, 2021 Tr. at 164:19-165:3.2 However, evidence of legal conduct can of course be relevant evidence of illegality. And conduct that cannot itself form the basis of a conviction can serve as direct evidence of the crimes charged. See, e.g., United States v. Robinson, 702 F.3d 22, 37 (2d Cir. 2012) (affirming admission of defendant pimp's relationship with and control over women who worked as prostitutes as direct evidence of 18 U.S.C. § 1591(a) charge). Thus some of the anticipated testimony described above can serve as direct evidence, notwithstanding the fact that the alleged conduct as to Witness-3 was not illegal for the purpose of the charges in this case. Portions of the anticipated testimony may also serve permissible purposes under Rule 404(b), namely proving motive, intent, and knowledge. See Fed. R. Evid. 404(b)(2). The witness is expected to testify about certain statements by Ms. Maxwell. For example, the 2 At the November 1 conference, the Court denied the Defendant's motion to preclude the Government from referring to alleged victims as "victims" and "minor victims." Nov. 1, 2021 Tr. at 4. In contrast to the other alleged victim witnesses, it is not (nor could it be) the Government's litigating position that this witness is a victim of the crimes charged in the Indictment. Given this, the Government may not refer to this witness as a "victim" or a "minor victim" in front of the jury. Doing so would constitute prejudicial error for the reasons explained in this Memorandum Opinion & Order. 2 DOJ-OGR-0001110