DOJ-OGR-00020998.pdf

Case 22-1426, Document 58_02/28/2023, 3475901, Page172 of 221 A-372 Case 1:20-cr-00330-AJN Document 657 Filed 04/29/22 Page 15 of 45 first explained that applying the Korfant factors led to the conclusion that successive prosecutions for conspiracies to distribute marijuana were barred by double jeopardy, but then continued, stating that "several additional factors . . . not directly addressed in Korfant . . . further point toward a finding of double jeopardy," namely, "the fact that the Government, in its opening and closing arguments, presented both cases to the jury as broad conspiracies of an essentially identical nature." 356 F.3d at 197. The same is true here. As explained above, the Government's opening statement and closing arguments presented a theory of a singular conspiracy, highlighting: The degree of similarity between each victim witness's experience over a decade; the common "playbook" that the Defendant ran "over and over and over again," Trial Tr. at 2848; and the tight partnership between the Defendant and Epstein. And each of those features was accompanied by references to a singular "scheme" to abuse all victim witnesses. Id. at 36, 2843, 2853. At bottom, the case presented to the jury by the Government was of a single decade-long conspiracy by the Defendant and Epstein to sexually abuse underage girls. Having pursued such a broad and encompassing conspiracy, the Government cannot now claim, and cannot carry its burden of proving by a preponderance of the evidence, that Count Five was legally and factually distinct. See Maslin, 356 F.3d at 197. Because Count Three and Count Five are multiplicitous, the proper remedy is to enter judgment on only one of the counts. See Josephberg, 459 F.3d at 355 ("If the jury convicts on more than one multiplicitous count, the defendant's right not to suffer multiple punishments for the same offense will be protected by having the court enter judgment on only one of the multiplicitous counts." (citing Ball v. United States, 470 U.S. 856, 865 (1985))). Because Count Five is factually subsumed by Count Three, the Court will impose judgment only on Count Three. The Court emphasizes, however, that finding Count Five to be multiplicitous "does not 15 DOJ-OGR-00020998