DOJ-OGR-00006923.pdf

--- Page 1 --- **Document Header** * Case Number: 1:20-cr-00330-PAE * Document Number: 453 * Filed Date: 11/12/21 * Page Number: 43 of 52 **Text Content** **(S.D.N.Y. May 1, 2007) (defendant's prior narcotics and firearm transactions with the same confidential informant not "inextricably intertwined" with the charged narcotics conspiracy, even though the conduct was "generally similar to the conduct underlying the offenses charged in the indictment"); United States v. Nektalov, 325 F. Supp. 2d 367, 369-70 (S.D.N.Y. 2004) (prior similar money laundering transactions between defendant and cooperating witness not "inextricably intertwined" with the charged money laundering offense or "necessary to complete the story" of the charged conspiracy (emphasis in original)). Testimony concerning the alleged rape should also be excluded because the S2 Indictment contains no allegations of rape and such testimony is therefore irrelevant to the charged crimes. The government dismisses this point arguing that indictments do not need to include all of the government's evidence, and the terms "sexual activity" and "commercial sex act" are broad enough to cover rape. See Resp. at 80. But this misses the point. The rape allegations are irrelevant to the charges because the charges are based on sexual activity that was illegal because the alleged victims were under the age of consent. The indictment does not charge any crimes that are premised on sex acts that involve the use of force, like rape. For example, Counts Five and Six charge sex trafficking offenses. See S2 Ind. 22-27. But they do not charge the section of the statute that criminalizes sex trafficking that "was effected by means of force, threats of force, fraud, or coercion." 18 U.S.C. § 1591(b)(1). The government is therefore off base when its states that "evidence of rape, where it occurs ... is the core conduct in the case." Resp. at 81. It is only the "core conduct" of the case when the indictment alleges forcible sex acts. Indeed, the cases cited by the government prove this point. See Ex. E, Indictment, United States v. English, No. 18 Cr. 492 (PGG) (S.D.N.Y. 2020) (defendant charged with sex trafficking conspiracy "effected by means of force" under 18 U.S.C. § 1591(b)(1));** **Footer** * DOJ-OGR-00006923 **Page Number** * 37