DOJ-OGR-00005413.jpg

Case 1:20-cr-00330-PAE Document 380 Filed 10/29/21 Page 20 of 54

Similarly, the Sixth Circuit has found that a district court properly admitted evidence of prior consistent statements that “rebutted [the d]efendant’s attack on [the declarant’s] purportedly faulty memory.” United States v. Cox, 871 F.3d 479, 487 (6th Cir. 2017).

B. Discussion

The Government expects the Minor Victims to testify at trial about their experiences with the defendant and Jeffrey Epstein, including the sexual abuse to which they were subjected, in the 1990s and early 2000s. To the extent the defendant challenges the credibility of the testimony of the Minor Victims—whether in opening statements or on cross-examination—the Government intends to call a number of witnesses to introduce certain of the Minor Victims’ prior consistent statements to witnesses about their experiences with the defendant and Epstein.
See, e.g., Flores, 945 F.3d at 705-06 (admitting prior consistent statement of witness after defense’s opening statement called into question the witness’s credibility); United States v. Burrell, 43 F. App’x 403, 406 (2d Cir. 2002) (allowing prior consistent statements of cooperating witness because the defendant “argued in her opening statement that the cooperating witnesses had a motive to lie”).

Such testimony is admissible under both subparts (i) and (ii) of Rule 801(d)(1)(B). As to subpart (i), if the defendant claims that a Minor Victim recently fabricated her testimony, the admissibility of her prior consistent statements will depend in part on the alleged “recent improper influence or motive in so testifying.” Because the Minor Victims’ prior consistent statements to witnesses about their experiences with the defendant and Epstein were made well over a decade ago, they are almost certain to qualify as having been made prior to any accusation of motive to fabricate. They therefore tend to rebut any assertion that the victims or witnesses
19

DOJ-OGR-00005413