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Case 1:20-cr-00330-PAE Document 397 Filed 10/29/21 Page 36 of 84

Evid. 404(b)(3)(B) (2020). The 2020 Amendments also removed language permitting notice of the “general nature” of the evidence.

These amendments are “relatively modest.” Wright & Miller, “2020 Amendments to Rule 404(b),” 22B Fed. Prac. & Proc. Evid. § 5242.1 (2d ed.). They simply require the prosecutor to “articulate a non-propensity purpose for which the evidence is offered and the basis for concluding that the evidence is relevant in light of this purpose.” Id. (quoting Fed. R. Evid. 404(b) Advisory Committee note). The other act evidence should also be “described with helpful specificity.” Id.

B. Discussion

To be clear, in the Government’s view, the exhibits and testimony discussed in the Government’s October 11, 2021 letter are direct evidence of the offenses charged, such that they do not need to be admitted pursuant to Rule 404(b). And although notice was not required under Rule 404(b), the Government has provided the defense with notice substantially in advance of trial. The Court should admit this evidence, regardless of whether Rule 404(b) applies.

1. The Evidence is Admissible As Direct Evidence, or in the Alternative, Under Rule 404(b)

The Government’s October 11 letter identified seven exhibits and one witness whose statements are admissible as direct evidence, or in the alternative under Rule 404(b). (See October 11, 2021 Letter, Def. Mot. 2 Ex. A at 1). More specifically, the letter explained that the Government may offer at trial [REDACTED], marked as Government Exhibits 401 through 404, 409 through 410, and 413. In addition, the Government notified the defense that it may call as a witness an individual (“Employee-1”) who worked for Jeffrey Epstein [REDACTED] immediately

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