DOJ-OGR-00007133.pdf

Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 82 of 127 82 LB1TMAX3 1 is entirely irrelevant, every single one of them. 2 So our view, Judge, is that her testimony should not 3 come in as direct evidence of the conspiracy. At best, what 4 the government has articulated -- they keep talking about 5 pattern, intent, knowledge. That's classic 404(b). So if 6 we're going to talk about this witness's testimony at all, we 7 should be talking about it in terms of 404(b) and whether it 8 meets that test. And it doesn't, your Honor. It is not 9 probative of knowledge or intent. 10 For a crime that charges causing someone to travel to 11 engage in a legal sex act as a minor, if that person is neither 12 a minor, did not travel with the intent of doing something 13 illegal because it was not illegal in any of those 14 jurisdictions, whatever happened, according to her own 15 testimony, it is not probative of any of those crimes and for 16 404(b) purposes, too. 17 Pattern, Judge, if it's modus operandi, that need to 18 be extremely specific before that can come in as modus operandi 19 evidence. We can't talk about engaging in social pleasantries 20 and polite conversation with someone as a pattern. That is not 21 a pattern that passes muster. 22 Furthermore, there are huge 403 issues with this 23 witness's testimony. If she talks about how she felt about 24 these experiences, that is eliciting sympathy from the jury. 25 It is not legally probative and it will lead them to think that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007133