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Case 1:20-cr-00330-PAE Document 662 Filed 06/15/22 Page 25 of 29

Counts Three, Four, and Six already includes the concept of “unduly influenc[ing] a minor to engage in prohibited sexual conduct.” The enhancement therefore should not be applied to any of the three offense groups.

Second, under the 2003 Guidelines, which should apply in this case, the analogous two-point enhancement only applies if “a participant otherwise unduly influenced a minor to engage in a commercial sex act.” USSG § 2G1.1(b)(4)(B) (2003) (emphasis added). There is no evidence that “Jane” or Annie Farmer engaged in a commercial sex act. Accordingly, the enhancement should not apply to their two offense groups (Groups 1 and 2).

Third, the evidence does not support that Carolyn was “unduly influenced” to provide sexualized massages to Epstein. The “undue influence” enhancement applies when “a participant’s influence over the minor compromised the voluntariness of the minor’s behavior.” USSG § 2G1.3(b)(2)(B), Appl. Note 3(B). “[T]he defining characteristic of undue influence is that it involves a situation where the influencer has succeeded in altering the behavior of the target.” United States v. Patterson, 576 F.3d 431, 443 (7th Cir. 2009) (internal quotation marks omitted). Apart from Virginia Roberts initially offering Carolyn the opportunity to massage Epstein, the record indicates that Carolyn sought out additional massage appointments herself and recruited other minors to perform sexualized massages to make more money. (Tr. 1527-28, 1543-46). Carolyn further testified that after she became pregnant, she returned to Epstein without being contacted to earn additional money. (Tr. 1548-49). In addition, Carolyn was not so influenced by Epstein or Ms. Maxwell that she did whatever they asked of her. Carolyn testified that she refused their offers to have her travel with them to Epstein’s island. (Tr. 1534-35). In sum, the record does not support the conclusion that Ms. Maxwell or anyone else

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