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Case 1:20-cr-00330-PAE Document 383 Filed 10/29/21 Page 35 of 40

E. The Government's Alleged Motives Are Irrelevant

The defense claims it is proper to cast aspersions on the Government's alleged motives for
prosecuting the defendant, and they claim they should be permitted to advance theories that
Epstein's death motivated the "timing of the charges" in this case. (Def. Opp. at 42). The defense
concedes that they have not established a vindictive or selective prosecution claim. (Id.). That is
because they have no legitimate theory based on the Government's supposed motives. But the
defense is not permitted to direct this argument to the jury simply because they lack a basis to
make that argument to the Court. (See Gov't Mot. at 34-35 ("The Second Circuit has explained
that claims of purported government misconduct must be 'directed to the court rather than jury."
(quoting United States v. Regan, 103 F.3d 1072, 1082 (2d Cir. 1997))).

As the Government said in its motions, the defense is free to argue that Epstein is guilty
and the defendant is innocent. (Id. at 35-36). They are not free, however, to argue that-
irrespective of guilt or innocence the defendant is being prosecuted because Epstein is dead.
Certainly, the defense could not make that argument absent any evidence, and no agent-including
the Florida and New York case agents can offer hearsay testimony about why they think
prosecutors charged or did not charge certain individuals at certain times. And to be clear, the
agents would testify that this case was charged promptly after the Government was in a position
to prove the defendant's guilt.

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