DOJ-OGR-00020993.pdf

Case 22-1426, Document 58, 02/28/2023, 3475901, Page167 of 221 A-367 Case 1:20-cr-00330-AJN Document 657 Filed 04/29/22 Page 10 of 45 roles played by those participants, significantly favors the Defendant as to the second Korfant factor. See Macchia, 35 F.3d at 669; Hernandez, 2009 WL 3169226, at *11. The Government responds that the Count Five conspiracy included Sarah Kellen, who was not involved in Count Three. Yet Kellen received far less attention than other conspirators in the Government's case, being mentioned only briefly in the Government's opening statement and closing arguments. E.g., Trial Tr. at 2876 (noting, "and sometimes Sarah Kellen would call, too"). Conspiracies often change membership without forming a new, distinct conspiracy, particularly if key members of the conspiracy remain over the course of a decade. See United States v. Eppolito, 543 F.3d 25, 48 (2d Cir. 2008). Kellen's participation beginning in 2001 therefore does not shift the import of the second Korfant factor. Overlap of time. The time periods of the two counts overlap completely. Namely, Count Five's period of 2001 to 2004 is "wholly within the time frame" of Count Three from 1994 to 2004, which substantially favors the Defendant on this Korfant factor. United States v. Calderone, 982 F.2d 42, 47 (2d Cir. 1992). The Government's attempt to minimize this factor by noting that most overt acts for Count Three occurred in the 1990s is simply not reflected in this circuit's case law. See, e.g., Macchia, 35 F.3d at 669 (focusing on the overlap in time frame alleged in the indictment). The overlap in time here raises the inference that one conspiracy wholly encompasses the other, and that inference tips in the Defendant's favor. See Araujo, 2018 WL 3222527, at *6. Similarity of operations. Counts Three and Five involve significant similarities in operations. The methods by which the Defendant groomed and facilitated the sexual abuse of minor victims was a central focus of both parties' cases at trial. The Government called as an expert witness Dr. Lisa Rocchio, who identified the typical steps in sexual abusers' grooming of 10 DOJ-OGR-00020993