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Case 1:20-cr-00330-PAE Document 204 Filed 04/16/21 Page 191 of 239

Accordingly, overt acts that may, on their own, be untimely can nevertheless serve as direct evidence of the existence of a charged conspiracy. See, e.g., United States v. Benussi, 216 F. Supp. 2d 299, 301-07, 309 (S.D.N.Y. 2002) (admitting evidence of otherwise untimely acts during conspiracy trial); cf. United States v. Marcus, 628 F.3d 36, 43 (2d Cir. 2010) (declining to vacate a conviction on a statute with only prospective application when “the Government presented post-enactment evidence sufficient to satisfy the elements” in addition to evidence of relevant pre-enactment conduct). Evidence regarding Minor Victim-3 is thus admissible to prove the existence of the conspiracy, even if a conviction could not be supported based on her experiences alone.59

The Government agrees with the defendant that Minor Victim-3 turned 25 before 2003 and, as a result, a substantive count based exclusively on conduct involving Minor Victim-3 is time-barred. As discussed above, however, the conduct involving Minor Victim-1 and Minor Victim-2 alleged in the Indictment is timely. Thus, if the jury concludes that the conspiracies existed, involved either Minor Victim-1 or Minor Victim-2, and included at least one overt act as to either Minor Victim-1 or Minor Victim-2, then Counts One and Three are not time-barred. See Salmonese, 352 F.3d at 614. Moreover, and so as to ensure that any count of conviction is based on timely conduct, the Government would have no objection to an appropriate instruction from

59 As a fallback argument, the defense cites United States v. Hsia, 24 F. Supp. 2d 14 (D.D.C. 1998), in which a District Judge concluded that alleged overt acts involving concealment or “cover-ups” were not obviously within the scope of the charged conspiracy to defraud the United States by impairing and impeding the Immigration and Naturalization Service. Id. at 20, 24-26. Although the Court denied the motion to strike the alleged surplusage, it ordered the prosecution to provide a bill of particulars regarding the alleged acts of concealment. Id. at 26, 33. The case is readily distinguishable because the alleged surplusage in Hsia involved a completely different type of conduct—obstruction—than that charged in the indictment—fraud. Here, by contrast, the allegations regarding Minor Victim-3 involve conduct that falls within the heartland of the conspiracy: grooming a minor girl to engage in sex acts with Jeffrey Epstein. Moreover, in both the Indictment and in this memorandum, the Government has provided extensive detail regarding Minor Victim-3’s anticipated testimony, which avoids any concern that the defendant will be surprised at trial, which was the animating concern in Hsia. See id. at 33. As such, this motion does not offer a basis for a bill of particulars.

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