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Case 1:20-cr-00330-PAE Document 385 Filed 10/29/21 Page 4 of 12

Ghislaine Maxwell moves in limine to exclude any evidence the Government seeks to admit at trial under Fed. R. Evid. 404(b) (the “Rule”). That Rule, as amended in December 2020, expressly requires particularized notice to the defense of the exact evidence to be offered, an articulated non-propensity purpose for its admission, and the reasoning supporting that purpose. Despite notice of the rule change and an opportunity to comply with the Rule by this Court's deadline of October 11, the Government opted not to follow the requirements of the Rule and should now be foreclosed from offering any evidence pursuant to Rule 404(b).

BACKGROUND

I. 2020 Amendments to Rule 404(b)

Rule 404 sets forth the requirements for "Notice in a Criminal Case" of an intent to introduce evidence under the rule:

“In a criminal case, the prosecutor must:

(A) provide reasonable notice of any such evidence that the prosecutor intends to offer at trial, so that the defendant has a fair opportunity to meet it;

(B) articulate in the notice the permitted purpose for which the prosecutor intends to offer the evidence and the reasoning that supports the purpose; and

(C) do so in writing before trial – or in any form during trial of the court, for good cause, excuses lack of pretrial notice.”

Fed. R. Evid. 404(b)(3). In December 2020, the Rule was “amended principally to impose additional notice requirements in a criminal case.” Fed. R. Evid. 404, Advisory Committee Notes, 2020 Amendments. Prior to the rule change, the prosecution needed only to give notice of the “general nature” of the anticipated evidence; thus, “some courts...permit[ted] the government to satisfy the notice obligation without describing the specific act that the evidence would tend to prove, and without explaining the relevance of the evidence for a non-propensity purpose” (id.).

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