UNITED STATES DISTRICT COURT

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK UNITED STATES OF AMERICA S2 20 Cr. 330 (MN) GHISLAINE MAXWELL, Defendant. [PROPOSED] JOINT REQUESTS TO CHARGE EFTA00074500 TABLE OF CONTENTS INTRODUCTORY INSTRUCTIONS 1 Role of the Court 1 Role of the Jury 2 Sympathy: Oath As Jurors 3 Contact with Others/Social Media 4 Statements of Counsel and Court Not Evidence; Jury's Recollection Controls 5 Improper Considerations 7 All Parties Are Equal Before the Law 8 Presumption of Innocence and Burden of Proof 9 Reasonable Doubt 10 The Indictment 12 CHARGE 13 Summary of Indictment 13 Multiple Counts 15 Count Two: Enticement to Engage in an Illegal Sexual Activity — The Statute 16 Count Two: Enticement to Engage in Illegal Sexual Activity— The Elements 17 Count Two: Enticement to Engage in Illegal Sexual Activity — First Element 18 Count Two: Enticement to Engage in Illegal Sexual Activity — Second Element 19 Count Two: Enticement to Engage in Illegal Sexual Activity — Third Element 20 Count Four: Transportation of a Minor to Engage in Illegal Sexual Activity — The Statute 22 Count Four: Transportation of a Minor to Engage in Illegal Sexual Activity — The Elements 23 Count Four: Transportation of a Minor to Engage in Illegal Sexual Activity — First Element 24 Count Four: Transportation of a Minor to Engage in Illegal Sexual Activity — First Element — Consent Irrelevant 25 Count Four: Transportation of a Minor to Engage in Illegal Sexual Activity — Second Element 26 Count Four: Transportation of a Minor to Engage in Illegal Sexual Activity — Second Element — Illegal Sexual Activity 27 Count Four: Transportation of a Minor to Engage in Illegal Sexual Activity — Third Element — Sexual Abuse in the Third Degree 28 Counts Two and Four: Failure to Accomplish Intended Activity is Immaterial 29 Count Six: Sex Trafficking of a Minor — Statute 30 Count Six: Sex Trafficking of a Minor — Elements 31 Count Six: Sex Trafficking of a Minor — First Element 32 EFTA00074501 Count Six: Sex Trafficking of a Minor — Second Element 33 Count Six: Sex Trafficking of a Minor — Third Element 34 Count Six: Sex Trafficking of a Minor — Fourth Element 35 Counts Two, Four, and Six: Aiding and Abetting 37 Counts One and Three and Five: Conspiracy to Violate Federal Laws— The Statute 40 Counts One and Three and Five: Conspiracy to Violate Federal Laws— Conspiracy and Substantive Counts 41 Counts One, Three and Five: Conspiracy to Violate Federal Law — The Elements 43 Counts One, Three, and Five: Conspiracy to Violate Federal Law — First Element 44 Counts One, Three, and Five: Conspiracy to Violate Federal Law — First Element: Object of the Conspiracy 48 Counts One, Three, and Five: Conspiracy to Violate Federal Law — Second Element: Membership in the Conspiracy 50 Counts One, Three, and Five Two: Conspiracy to Violate Federal Law — Third Element 53 Statute of Limitations 55 OTHER INSTRUCTIONS 56 Direct and Circumstantial Evidence 56 Inferences 58 Credibility of Witnesses 60 Credibility of Witnesses — Impeachment by Prior Inconsistent Statement 62 Conscious Avoidance 63 Venue 65 Time of Offense 67 Law Enforcement and Government Employee Witnesses 68 Formal / Informal Immunity of Government Witnesses 69 Expert Testimony 70 Limiting Instruction — Similar Act Evidence 71 Defendant's Testimony 72 Defendant's Right Not to Testify 73 Uncalled Witnesses — Equally Available to Both Sides 74 Particular Investigative Techniques Not Required 75 Use of Evidence from Searches 76 Use of Electronic Communications 77 Persons Not on Trial 78 Preparation of Witnesses 79 EFTA00074502 Redaction Of Evidentiary Items 80 Charts and Summaries — Admitted as Evidence 81 Stipulations 82 Punishment Not to be Considered by the Jury 83 Right to Hear Testimony; Election of Foreperson; Communications with the Court; Juror Note-Taking 84 CONCLUDING REMARKS 85 EFTA00074503 INTRODUCTORY INSTRUCTIONS Role of the Court You have now heard all of the evidence in the case, as well as the final arguments of the lawyers for the parties. My duty at this point is to instruct you as to the law. It is your duty to accept these instructions of law and apply them to the facts as you determine them. On these legal matters, you must take the law as I give it to you. Regardless of any opinion that you may have as to what the law may be—or ought to be—it would violate your sworn duty to base a verdict upon any other view of the law than that which I give you. If an attorney or anyone else at trial has stated a legal principle different from any that I state to you in my instructions, it is my instructions that you must follow. You should not single out any instruction alone stating the law, but you should consider my instructions as a whole when you retire to deliberate in the jury room. You may take a copy of these instructions with you into the jury room. Adapted from the charge of the Hon. Alison J. Nathan in United States v. Jones, 16 Cr. 533 (AJN) and in United States v. Pizarro, 17 Cr. 151 (AJN). 1 EFTA00074504 Role of the Jury Your role is to pass upon and decide the fact issues that are in the case. You, the members of the jury, are the sole and exclusive judges of the facts. You pass upon the weight of the evidence or lack of evidence; you determine the credibility of the witnesses; you resolve such conflicts as there may be in the testimony; and you draw whatever reasonable inferences you decide to draw solely based on the evidence and from the facts as you have determined them. The evidence before you consists of the answers given by witnesses and the exhibits and stipulations that were received into evidence. If I have sustained an objection to a question or told you to disregard testimony, the answers given by a witness are no longer part of the evidence and may not be considered by you. In determining the facts, you must rely upon your own recollection of the evidence. I will instruct you at the end of these charges about your ability to request to have testimony read back and your access to other evidence admitted during the trial. Adapted from the charge of the Hon. Alison J. Nathan in United States v. Jones, 16 Cr. 533 (AJN) and in United States v. Pizarro, 17 Cr. 151 (AJN). 2 EFTA00074505 Sympathy: Oath As Jurors Under your oath as jurors you are not to be swayed by sympathy or prejudice. You are to determine the guilt or innocence of the defendant solely on the basis of the evidence and subject to the law as I have charged you. Adapted from Sand, et al., Modern Federal -flay Instructions, Instr. 2-12; and the charge of the Hon. Denise L. Cote in United States v. Purcell, 18 Cr. 081 (DLC). 3 EFTA00074506 Contact with Others/Social Media During your deliberations, you must not communicate with or provide any information to anyone by any means about this case. You may not use any electronic devices or media, such as a telephone, cell phone, smart phone, iPhone, Blackberry or computer; the Internet, or any intemet service, or any text or instant messaging service; or any internet chat room, blog, or website, such as Facebook, Instagram, LinkedIn, YouTube, Twitter, or Snapchat, to communicate to anyone any information about this case or to conduct any research about this case until I accept your verdict. In other words, you cannot talk to anyone on the phone or in person, correspond with anyone, or electronically communicate with anyone about this case. You can only discuss the case in the jury room with your fellow jurors during deliberations. Along the same lines, you should not try to access any information about the case or do research on any issue that arose during the trial from any outside source, including dictionaries, reference books, or anything on the Internet. In our judicial system, it is important that you are not influenced by anything or anyone outside of this courtroom. Your sworn duty is to decide this case solely and wholly on the evidence that was presented to you in this courtroom. Adapted from the charge of the Hon. Alison J. Nathan in United States v. Jones, 16 Cr. 533 (AJN) and in United States v. Pizarro, 17 Cr. 151 (AJN). 4 EFTA00074507 Statements of Counsel and Court Not Evidence; Jury's Recollection Controls You must determine the facts by relying upon your own recollection of the evidence. This case is not to be decided on the rhetoric of either the attorneys for the Government or the attorneys for the Defendants. The lawyers' arguments are intended to convince you to draw certain conclusions from the evidence or lack of evidence. Those arguments are important. You should weigh and evaluate them carefully. But you must not confuse them with the evidence. If your recollection of the evidence differs from the statements of the lawyers, follow your recollection. You should draw no inference or conclusion for or against any party by reason of lawyers making objections or my rulings on such objections. Counsel have not only the right but the duty to make legal objections that they think are appropriate. You should not be swayed against the Government or the Defendant simply because counsel for either side has chosen to make an objection. Similarly, statements made by counsel when arguing the admissibility of evidence are not to be considered as evidence. If I comment on the evidence during my instructions, do not accept my statements in place of your recollection. Again, it is your recollection that governs. Do not concern yourself with what was said at side bar conferences or during my discussions with counsel. Those discussions related to rulings of law, which are my duty, and not to matters of fact, which are your duty to determine. At times I may have admonished a witness or directed a witness to be responsive to questions, to keep his or her voice up, or to repeat an answer. My instructions were intended only to clarify the presentation of evidence. You should draw no inference or conclusion of any kind, favorable or unfavorable, with respect to any witness or party in the case, by reason of any 5 EFTA00074508 comment, question, or instruction of mine. Nor should you infer that I have any views as to the credibility of any witness, as to the weight of the evidence, or as to how you should decide any issue that is before you. That is entirely your role. Adapted from the charge of the Hon. Alison J. Nathan in United States v. Jones, 16 Cr. 533 (AJN) and in United States v. Pizarro, 17 Cr. 151 (AJN). 6 EFTA00074509 Improper Considerations Your verdict must be based solely upon the evidence or the lack of evidence. It would be improper for you to consider any personal feelings you may have about the defendant's race, ethnicity, religion, national origin, sex, age, or any other such factor. Similarly, it would be improper for you to consider any personal feelings you may have about the race, ethnicity, religion, national origin, sex, age, or any other similar factor of any other witness or anyone else involved in this case. It also would be improper for you to allow any feelings you might have about the nature of the crimes charged to interfere with your decision-making process. I remind you that before each of you was accepted and sworn to act as a juror, you were asked questions concerning competency, qualifications, fairness, and freedom from prejudice and bias. On the faith of those answers, you were accepted as jurors by the parties. Therefore, those answers are as binding on each of you now as they were then, and should remain so, until the jury is discharged from consideration of this case. Adapted from the charge of the Hon. Alison J. Nathan in United States v. Jones, 16 Cr. 533 (AJN) and in United States v. Pizarro, 17 Cr. 151 (AJN). 7 EFTA00074510 All Parties Are Equal Before the Law You are to perform the duty of finding the facts without bias or prejudice as to any party. You are to perform your final duty in an attitude of complete fairness and impartiality. The fact that the prosecution is brought in the name of the United States of America entitles the Government to no greater consideration than that given to any other party to this litigation. By the same token, the Government is entitled to no less consideration. All parties stand as equals at the bar of justice. Adapted from the charge of the Hon. Alison J. Nathan in United States v. Jones, 16 Cr. 533 (AJN) and in United States v. Lebedev, 15 Cr. 769 (AN). 8 EFTA00074511 Presumption of Innocence and Burden of Proof The law presumes the defendant to be innocent of all charges against her. She has pleaded not guilty to the charges in the Indictment. As a result, the burden is on the Government to prove the defendant's guilt beyond a reasonable doubt as to each charge. This burden never shifts to the defendant. In other words, she does not have to prove her innocence. This presumption of innocence was with the defendant when the trial began remains with the defendant unless and until you are convinced that the Government has proven the defendant's guilt beyond a reasonable doubt. If the Government fails to prove the defendant's guilt beyond a reasonable doubt, you must find her not guilty. [If necessaty: Even though the defendant has presented evidence in her defense, the presumption of innocence remains with her. It is always the Government's burden to prove each of the elements of the crimes charged beyond a reasonable doubt.] Adapted from the charge of the Hon. Alison J. Nathan in United States v. Jones, 16 Cr. 533 (AJN) and in United States v. Pizarro, 17 Cr. 151 (AJN). 9 EFTA00074512 Reasonable Doubt The question that naturally arises is: "What is a reasonable doubt?" What does that phrase mean? The words almost define themselves. A reasonable doubt is a doubt based in reason and arising out of the evidence in the case, or the lack of evidence. It is a doubt that a reasonable person has after carefully weighing all of the evidence in the case. Reasonable doubt is a doubt that appeals to your reason, your judgment, your experience, and your common sense. If, after a fair and impartial consideration of all the evidence, you can candidly and honestly say that you do have an abiding belief of the defendant's guilt as to any crime charged in this case, such a belief as a prudent person would be willing to act upon in important matters in the personal affairs of his or her own life, then you have no reasonable doubt, and under such circumstances it is your duty to convict the defendant of the particular crime in question. On the other hand, if after a fair and impartial consideration of all the evidence, you can candidly and honestly say that you are not satisfied with the defendant's guilt as to any charge, that you do not have an abiding belief of her guilt as to that charge—in other words, if you have such a doubt as would reasonably cause a prudent person to hesitate in acting in matters of importance in his or her own affairs—then you have a reasonable doubt, and in that circumstances it is your duty to acquit the defendant of that charge. One final word on this subject: Reasonable doubt is not whim or speculation. It is not an excuse to avoid an unpleasant duty. Nor is it sympathy for the defendant. "Beyond a reasonable doubt" does not mean mathematical certainty, or proof beyond all possible doubt. The law in a criminal case is that it is sufficient if the guilt of the defendant is established beyond a reasonable doubt, not beyond all possible doubt, and, therefore, if after a fair and impartial consideration of 10 EFTA00074513 all of the evidence, you are satisfied beyond a reasonable doubt of the defendant's guilt with respect to a particular charge against her, you should find the defendant guilty of that charge. Adapted from the charge of the Hon. Alison J. Nathan in United States v. Jones, 16 Cr. 533 (AJN) and in United States v. Pizarro, 17 Cr. 151 (AJN). 11 EFTA00074514 The Indictment The defendant, GHISLAINE MAXWELL, has been formally charged in what is called an Indictment. An indictment is simply a charge or accusation. It is not evidence. It is not proof of the defendant's guilt. It creates no presumption and it permits no inference that the defendant is guilty. You are to give no weight to the fact that an indictment has been returned against the defendant. I will not read the entire Indictment to you at this time. Rather, I will first summarize the offenses charged in the Indictment and then explain in detail the elements of each of the offenses. Adapted from the charge of the Hon. Alison J. Nathan in United States v. Jones, 16 Cr. 533 (AJN) and in United States v. Pizarro, 17 Cr. 151 (AJN). 12 EFTA00074515 CHARGE Summary of Indictment The Indictment contains six counts, or "charges," against the defendant. Each count constitutes a separate offense or crime. You must consider each count of the Indictment separately, and you must return a separate verdict on each count in which the defendant is charged. I am briefly going to summarize each count, and then will give you the law in greater detail. Count One of the Indictment charges GHISLAINE MAXWELL, the defendant, with conspiring —that is, agreeing—with others to entice an individual to travel in interstate and foreign commerce to engage in sexual activity for which a person can be charged with a criminal offense: Count One relates to multiple victims and the time period 1994 to 2004. Count Two of the Indictment charges the defendant with enticing an individual to travel in interstate and foreign commerce to engage in sexual activity for which a person can be charged with a criminal offense. Count Two relates to Minor Victim-1 and the time period 1994 to 1997. Count Three of the Indictment charges the defendant with conspiring with others to transport a minor in interstate and foreign commerce, with intent that the minor engage in sexual activity for which a person can be charged with a criminal offense. Count Three relates to multiple minor victims and the time period 1994 to 2004. Count Four of the Indictment charges the defendant with transporting a minor in interstate and foreign commerce, with the intent that the minor engage in sexual activity for which a person can be charged with a criminal offense. Count Four relates to Minor Victim-1 and the time period 1994 to 1997. 13 EFTA00074516 Count Five of the Indictment charges the defendant with conspiring to engage in sex trafficking of minors. Count Five relates to multiple minor victims and the time period 2001 to 2004. Count Six of the Indictment charges the defendant with sex trafficking of minors. Count Six relates to Minor Victim-4, and the time period 2001 to 2004. Adapted from Sand et al., Modern Federal Jury Instructions, Instr. 3-6. See United States v. Sanzo, 673 F.2d 64, 69 (2d Cir. 1982). 14 EFTA00074517 Multiple Counts As I mentioned, the Indictment contains six counts. Each count charges the defendant with a different crime. You must consider each count separately and return a separate verdict of guilty or not guilty for each. Whether you find the defendant guilty or not guilty as to one offense should not affect your verdict as to any other offense charged, unless you are instructed otherwise. With that summary of the Indictment as background, I will now give you detailed instructions that relate to the crimes charged in Counts One through Six. Adapted from the charge of the Hon. Alison J. Nathan in United States v. Pizarro, 17 Cr. 151 (AJN) and in United States v. Le, 15 Cr. 38 (AJN). 15 EFTA00074518 Count Two: Enticement to Engage in an Illegal Sexual Activity — The Statute The relevant statute for Count Two is Title 18, United States Code, Section 2422, which provides that "[w]hoever knowingly persuades, induces, entices, or coerces any individual to travel in interstate or foreign commerce, or in any Territory or Possession of the United States, to engage in ... in any sexual activity for which any person can be charged with a criminal offense," is guilty of a federal crime. 16 EFTA00074519 Count Two: Enticement to Engage in Illegal Sexual Activity— The Elements To prove the defendant guilty of Count Two, the Government must prove each of the following three elements beyond a reasonable doubt: First, that the defendant knowingly persuaded or induced or enticed or coerced an individual to travel in interstate or foreign commerce; Second, that the individual traveled in interstate or foreign commerce; and Third, that the defendant acted with the intent that the individual would engage in sexual activity for which any person can be charged with a criminal offense. Count Two relates to Minor Victim-1 during the period 1994 to 1997. Adapted from Sand et al., Modern Federal Jury Instructions, Instr. 64-6. 17 EFTA00074520 Count Two: Enticement to Engage in Illegal Sexual Activity — First Element The first element of Count Two is that the defendant knowingly persuaded or induced or enticed or coerced an individual to travel in interstate or foreign commerce. The terms "persuaded," "induced," "enticed," and "coerced" have their ordinary, everyday meanings. The term "interstate or foreign commerce" simply means movement from one state to another state or between the United States and a foreign country. The term "State" includes a State of the United States and the District of Columbia. "Knowingly" Defined The defendant must have acted knowingly. An act is done knowingly when it is done voluntarily and intentionally and not because of accident, mistake, or some other innocent reason. Now, knowledge is a matter of inference from the proven facts. Science has not yet devised a manner of looking into a person's mind and knowing what that person is thinking. Whether the defendant acted knowingly may be proven by the defendant's conduct and by all of the facts and circumstances surrounding the case. Adapted from Sand et al., Modern Federal Jury Instructions, Instr. 64-7; the charge of the Hon. Alison J. Nathan in United States v. Pizzaro, 17 Cr. 151 (AJN) and in United States v. Le, 15 Cr. 38 (AN); the charge of the Hon. Denise L. Cote in United States v. Purcell, 18 Cr. 081 (DLC); the charge of the Hon. Kimba M. Wood in United States v. Almonte, 16 Cr. 670 (ICMW); and the charge of the Hon. Sidney H. Stein in United States v. Waqar, 18 Cr. 342 (SHS). See United States v. Waqar, 997 F.3d 481, 484-85 (2d Cir. 2021) (stating that the "statutory verbs" in § 2422(b) "'attempt, persuade, induce, entice, [and] coerce, though not defined in the statute, are words of common usage that have plain and ordinary meanings" (citation omitted)). 18 EFTA00074521 Count Two: Enticement to Engage in Illegal Sexual Activity — Second Element The second element of Count Two is that the individual traveled in interstate or foreign commerce as alleged in the Indictment. As I just stated, "interstate or foreign commerce" simply means movement between one state and another or between the United States and a foreign country. Adapted from Sand et al., Modern Federal Jury Instructions, lnstr. 64-8. 19 EFTA00074522 Count Two: Enticement to Engage in Illegal Sexual Activity — Third Element The third element of Count Two is that the defendant acted with the intent that the individual would engage in sexual activity for which any person can be charged with a criminal offense. Count Two alleges sexual activity for which a person could be charged with a crime under the criminal (or penal) law of New York State. I instruct you as a matter of law that Sexual Abuse in the Third Degree, the offense set forth in Count Two of the Indictment, was a violation of New York State Penal law from at least in or about 1994 up to an including in or about 1997, at the time the acts are alleged to have been committed. A person violates New York State Penal Law § 130.55, Sexual Abuse in the Third Degree, when he or she subjects another person to sexual contact without the latter's consent. Under New York law, "sexual contact" means any touching of the sexual or other intimate parts of a person for the purpose of gratifying the sexual desire of either party. It includes the touching of the victim by the actor, whether directly or through clothing, as well as the emission of ejaculate by the actor upon any part of the victim, clothed or unclothed. Also under New York law, lack of consent can result from incapacity to consent. A person less than seventeen years old is deemed incapable of consent under New York Law. Thus, the law deems sexual contact with such a person to be without that person's consent, even if in fact that person did consent. However, in order to find that the intended acts were nonconsensual solely because of the victim's age, you must find that the defendant knew that the victim was less than seventeen years old. 20 EFTA00074523 "Intentionally" Defined A person acts intentionally when the act is the product of her conscious objective, that is, when she acts deliberately and purposefully and not because of a mistake or accident. Direct proof of a person's intent is almost never available. It would be a rare case where it could be shown that a person wrote or stated that, as of a given time, she committed an act with a particular intent. Such direct proof is not required. The ultimate fact of intent, though subjective, may be established by circumstantial evidence, based upon the defendant's outward manifestations, her words, her conduct, her acts and all the surrounding circumstances disclosed by the evidence and the rational or logical inferences that may be drawn from them. Adapted from Sand et al., Modern Federal Jury Instructions, Instrs. 64-9, 64-18; New York Penal Law §§ 15.20(3), 130.00, 130.05, 130.55; New York State Pattern Jury Instructions § 130.55; the charge of the Hon. Denise L. Cote in United States v. Purcell, 18 Cr. 081 (DLC); and the charge of the Hon. Ann M. Donnelly in United States v. Kelly, 19 Cr. 286 (AMD) (E.D.N.Y.). See United States v. Murphy, 942 F.3d 73, 79-84 (2d Cir. 2019) (holding under 18 U.S.C. § 2423(b) that a defendant must know the age of the victim where the victim's age distinguishes lawful from unlawful conduct). 21 EFTA00074524 Count Four: Transportation of a Minor to Engage in Illegal Sexual Activity — The Statute The relevant statute for Count Four is Title 18, United States Code, Section 2423(a), which provides that a person who "knowingly transports any individual under the age of 18 years in interstate or foreign commerce . . . with intent that such individual engage in ... any sexual activity for which any person can be charged with a criminal offense," is guilty of a federal crime. 22 EFTA00074525 Count Four: Transportation of a Minor to Engage in Illegal Sexual Activity — The Elements In order to prove the defendant guilty of Count Four, the Government must establish each of the following three elements of the crime beyond a reasonable doubt: First that the defendant knowingly transported an individual in interstate or foreign commerce as alleged in the Indictment, Second, that the defendant transported the individual with the intent that the individual engage in any sexual activity for which any person can be charged with a criminal offense; and Third, that the individual was less than seventeen years old at the time of the acts alleged in Count Four of the Indictment. Count Four also relates to Minor Victim-1 during the period 1994 to 1997. Adapted from Sand, et al., Modern Federal Jury Instructions, Instr. 64-16; the charge of the Hon. Richard J. Arcara in United States v. Vickers, 13 Cr. 128 (RJA) (W.D.N.Y.), aff'd, 708 F. App'x 732 (2d Cir. 2017); and the charge of the Hon. Thomas P. Greisa in United States v. Gilliam, 11 Cr. 1083 (TPG), ard, 842 F.3d 801, 805 (2d Cir. 2016). 23 EFTA00074526 Count Four: Transportation of a Minor to Engage in Illegal Sexual Activity — First Element The first element of Count Four is that the defendant knowingly transported an individual in interstate or foreign commerce. The phrase, "transport an individual in interstate or foreign commerce" means to move or carry, or cause someone to be moved or carried, from one state to another or between the United States and a foreign country. The Government does not have to prove that the defendant personally transported the individual across a state line. It is sufficient to satisfy this element that the defendant acted through an agent or was engaged in the making of the travel arrangements, such as by purchasing tickets necessary for the individual to travel as planned. The defendant must have knowingly transported or participated in the transportation of the individual in interstate or foreign commerce. This means that the Government must prove that the defendant knew both that she was causing the individual to be transported, and that the individual was being transported in interstate or foreign commerce. As I have explained, an act is done knowingly when it is done voluntarily and intentionally and not because of accident, mistake or some innocent reason. Adapted from Sand, et al., Modern Federal -hay Instructions, Instr. 64-17; and the charge of the Hon. Richard J. Arcara in United States v. Vickers, 13 Cr. 128 (RJA) (W.D.N.Y.), aff'd, 708 F. App'x 732 (2d Cir. 2017). See United States v. Mi Sun Cho, 713 F.3d 716, 720 (2d Cir. 2013) (sufficient to show transportation where defendant agreed to provide a prostitution job and coordinated and prearranged the date and time of travel); United States v. Shim, 584 F.3d 394, 396 (2d Cir. 2009); United States v. Evans, 272 F.3d 1069, 1086-87 (8th Cir. 2002) (under general knowledge requirement of Mann Act, jury need not find that defendant knew that the act being committed was unlawful). 24 EFTA00074527 Count Four: Transportation of a Minor to Engage in Illegal Sexual Activity — First Element — Consent Irrelevant With regard to Count Four, whether or not the individual consented to being transported or to traveling interstate for the purpose of engaging in sexual activity for which any person can be charged with a criminal offense, or the individual otherwise voluntarily participated, is irrelevant, as the consent or voluntary participation of the individual is not a defense. Adapted from the charge of the Hon. Thomas P. Greisa in United States v. Gilliam, 11 Cr. 1083 (TPG), aff'd, 842 F.3d 801, 805 (2d Cir. 2016). See also United States v. Lowe, 145 F.3d 45, 52 (1st Cir. 1998) ("Consent is a defense to kidnapping but not to a Mann Act charge."); United States v. Jones, 808 F.2d 561, 565-66 (7th Cir. 1986); United States v. Pelton, 578 F.2d 701, 712 (8th Cir. 1978); Gebardi v. United States, 287 U.S. 112, 117-18 (1932). 25 EFTA00074528 Count Four: Transportation of a Minor to Engage in Illegal Sexual Activity — Second Element The second element of Count Four is that the defendant transported the individual with the intent that the individual engage in any sexual activity for which any person can be charged with a criminal offense. In order to establish this element, it is not necessary for the Government to prove that engaging in sexual activity for which any person can be charged with a criminal offense was the defendant's sole purpose in transporting the individual across a state line. A person may have several different purposes or motives for such conduct, and each may prompt in varying degrees the act or the person's actions. The Government must prove beyond a reasonable doubt, however, that a significant or motivating purpose of the conduct was to have the individual engage in sexual activity for which any person can be charged with a criminal offense. In other words, the illegal sexual activity must not have been merely incidental to the trip. Adapted from Sand, et al., Modern Federal Jury Instructions, Instrs. and 64-4, 64-18; Edward J. Devitt et al., Federal Jury Practice and Instructions, Instr. 60-07; and the charge of the Hon. Denise L. Cote in United States v. Purcell, 18 Cr. 081 (DLC). See United States v. Vargas-Cordon, 733 F.3d 366, 375 (2d Cir. 2013) ("[T]he contemplated unlawful sexual activity need not be the defendant's sole purpose for transporting a minor in interstate or foreign commerce. Rather, it must only be a `dominant purpose' of the transportation."); United States v. Miller, 148 F.3d 207, 212 (2d Cir. 1998) (finding no error in jury instruction that engaging in illegal sexual activity "need not have been [the defendant's] only purpose or motivation, but it must have been more than merely incidental; it must have been one of the dominant purposes of the trip"). 26 EFTA00074529 Count Four: Transportation of a Minor to Engage in Illegal Sexual Activity — Second Element — illegal Sexual Activity Count Four alleges that the defendant knowingly transported the individual in interstate or foreign commerce with the intent that the individual engage in sexual activity for which any person can be charged with a criminal offense. Like Count Two, Count Four alleges sexual activity for which an individual could be charged with a crime under the criminal (or penal) law of New York State, specifically Sexual Abuse in the Third Degree. I have already instructed you regarding that crime, and those instructions apply equally here. Adapted from Sand et al., Modern Federal Jury Instructions, Instr. 64-18; New York State Penal Law §§ 15.20(3), 130.00, 130.05, 130.55; New York State Pattern Jury Instructions § 130.55; the charge of the Hon. Denise L. Cote in United States v. Purcell, 18 Cr. 081 (DLC). 27 EFTA00074530 Count Four: Transportation of a Minor to Engage in Illegal Sexual Activity — Third Element — Sexual Abuse in the Third Degree The third element of Count Four is that the individual was less than seventeen years old at the time of the offense. Although the text of the law says the individual must be less than eighteen, because the New York criminal law provides that a person can consent to sexual activity if she is seventeen, this element requires that the individual was less than seventeen at the time of the offense. Adapted from Sand, et al., Modern Federal Jay Instructions, Instr. 64-19 ("Although section 2423(a) requires that the person transported be less than eighteen ... [i]f the defendant is charged with transporting for the purpose of engaging in illegal sexual activity, and that underlying activity requires that the victim be less than some other age, then it can only confuse the jury to charge that the victim must be less than eighteen in this instruction and less than that other age elsewhere in the instructions."). See New York State Penal Law §§ 15.20(3), 130.55 28 EFTA00074531 Counts Two and Four: Failure to Accomplish Intended Activity is Immaterial Now, with respect to Counts Two and Four, it is not a defense that the sexual activity which may have been intended by the defendant was not accomplished. In other words, it is not necessary for the Government to prove that anyone, in fact, engaged in any sexual activity for which any person can be charged with a criminal offense with the individual after she was enticed, for Count Two, or transported, for Count Four, across state lines. It is enough if defendant has the requisite intent at the time of the enticement or transportation. Adapted from Edward J. Devitt, et al., Federal Juiy Practice and Instructions, Instr. 60-06. See United States v. Bromoneyer, 616 F.3d 120, 129-30 & n.8 (2d Cir. 2010) ("The plain wording of the statute requires that the mens rea of intent coincide with the actor reus of crossing state lines."); Cleveland v. United States, 329 U.S. 14, 20 (1946) ("[G]uilt under the Mann Act turns on the purpose which motivates the transportation, not on its accomplishment."). 29 EFTA00074532 Count Six: Sex Trafficking of a Minor — Statute The relevant statute for Count Six is Title 18, United States Code, Section 1591, which provides, in pertinent part, that "Whoever knowingly in or affecting interstate commerce, recruits, entices, harbors, transports, provides, or obtains, by any means a person ... knowing that ... the person has not attained the age of eighteen years and will be caused to engage in a commercial sex act" is guilty of a crime. 30 EFTA00074533 Count Six: Sex Trafficking of a Minor — Elements To find the defendant guilty of Count Six you must find that the Government has proven each of the following four elements beyond a reasonable doubt: First: The defendant knowingly recruited, enticed, harbored, transported, provided, or obtained a person; Second: The defendant knew that the person was under the age of eighteen years; Third: The defendant knew the person would be caused to engage in a commercial sex act; and Fourth:, The defendant's acts were in or affecting interstate or foreign commerce. This Count relates to the alleged abuse of Minor Victim-4 during the period 2001 to 2004. Adapted from Sand, et al., Modern Federal Jury Instructions, Instr. 47A-I8; and the charge given by the Hon. Kimba M. Wood in United States v. Almonte, 16 Cr. 670 (KMW). 31 EFTA00074534 Count Six: Sex Trafficking of a Minor — First Element The first element of Count Six is that the defendant knowingly recruited, enticed, harbored, transported, provided, or obtained a person. The terms "recruited," "enticed," "harbored," "transported," "provided," and "obtained" have their ordinary, everyday meanings. Adapted from the charge given by the Hon. Kimba M. Wood in United States v. Aimonte, 16 Cr. 670 (KMW); United States v. Wedd, 993 F.3d 104, 122 (2d Cir. 2021) ("In interpreting a statute, this Court gives the statutory terms their ordinary or natural meaning." (internal quotation marks omitted)). See, e.g., Noble v. Weinstein, 335 F. Supp. 3d 504, 517 (S.D.N.Y. 2018) (explaining that, because the verb "entices" is "not defined by Congress," it bears its ordinary meaning). 32 EFTA00074535 Count Six: Sex Trafficking of a Minor — Second Element The second element of Count Six is that the defendant knew that the person was under eighteen years of age. In considering whether the defendant knew that the person had not attained the age of eighteen, please apply the definition of "knowingly" previously provided to you. Remember whether a defendant acted knowingly may be proven by what the defendant said and did and by all the facts and circumstances surrounding the case, since direct proof of a person's state of mind is rarely available. Adapted from Sand, et al., Modern Federal Jury Instructions, Instr. 47A-20; and the charge given by the Hon. Kimba M. Wood in United States v. Almonte, 16 Cr. 670 (KMW). See United States v. Thompson, 896 F.3d 155, 169-70 (2d Cir. 2018). 33 EFTA00074536 Count Six: Sex Trafficking of a Minor — Third Element The third element of Count Six is that the defendant knew that the person would be caused to engage in a commercial sex act. The term "commercial sex act" means "any sex act, on account of which anything of value is given to or received by any person." The thing of value may be money or any other tangible or intangible thing of value that may be given to or received by any person, regardless of whether the person who receives it is the person performing the commercial sex act. It is not relevant whether or not the person was a willing participant in performing commercial sex acts. Consent by the person is not a defense to the charge in Count Six of the Indictment. It is also not required that the person actually performed a commercial sex act so long as the Government has proved that the defendant recruited, enticed, harbored, transported, provided, or obtained the person for the purpose of engaging in commercial sex acts. Adapted from Sand, et al., Modern Federal Jury Instructions, Instr. 47A-22; 18 U.S.C. § 1591(c)(1) (2000) (defining "commercial sex act"); and the charge given by the Hon. Kimba M. Wood in United States v. Almonte, 16 Cr. 670 (ICMW). See United States v. Jones, 847 F. App'x 28, 30 (2d Cir. 2021) (summary order) (affirming the use of an instruction drawn from the statute and the Sand treatise); United States v. Corley, 679 F. App'x 1, 7 (2d Cir. 2017) (summary order) ("[T]he statute does not require that an actual commercial sex act have occurred."); United States v. Williams, 529 F.3d I, 6 (1st Cir. 2008) ("Even if the minor had factually consented, that consent would not have been legally valid. In all events, factual consent would not eliminate the potential risks that confronted the child." (citations omitted)). 34 EFTA00074537 Count Six: Sex Trafficking of a Minor — Fourth Element The fourth and final element of Count Six is that the defendant's sex trafficking activities were in interstate or foreign commerce or affected interstate commerce. The Government need not prove both that the activities were in interstate or foreign commerce and affected interstate or foreign commerce. I instruct you that acts and transactions that cross state lines, or which affect the flow of money in the stream of commerce to any degree, however minimal, are acts and transactions affecting interstate commerce. For instance, it affects interstate commerce to use products that traveled in interstate commerce. It is not necessary for the Government to prove that the defendant specifically knew or intended that the recruiting, enticing, harboring, transporting, providing, or obtaining of a person to engage in commercial sex acts would affect interstate commerce; it is only necessary that the natural consequences of such conduct would affect interstate commerce in some way, even if minor. If you find beyond a reasonable doubt that the recruitment, enticement, harboring, transportation, providing, or obtaining of a person for the purpose of engaging in commercial sex acts was economic in nature and involved the crossing of state lines, or was economic in nature and otherwise affected the flow of money to any degree, however minimal, you may find that the interstate commerce requirement of the offense of sex trafficking of a minor has been satisfied. I further instruct you that to find that this element has been proven beyond a reasonable doubt, it is not necessary for you to find that any interstate or foreign travel occurred. Proof of actual travel is not required. Adapted from the charge given by the Hon. Kimba M. Wood in United States v. A/monte, 16 Cr. 670 (KMW). See United States v. Graham, 707 F. App'x 23, 26 (2d Cir. 2017) (summary order) 35 EFTA00074538 ("The conduct underlying Graham's conviction was inherently commercial, and the government adduced evidence that its commission as to all three counts involved the use of intemet advertisements, condoms, hotels, and rental cars."); United States v. Elias, 285 F.3d 183, 189 (2d Cir. 2002); United States v. Paris, No. 03:06-CR-64 (CFD), 2007 WL 3124724, at *8 & n.10 (D. Conn. Oct. 24, 2007) (use of cell phones, use of hotel rooms and distribution of condoms all affected interstate commerce in sex trafficking venture). 36 EFTA00074539 Counts Two, Four, and Six: Aiding and Abetting In connection with the substantive crimes charged in Counts Two, Four, and Six, the defendant is also charged with aiding and abetting the commission of those crimes. Aiding and abetting liability is its own theory of criminal liability. In effect, it is a theory of liability that permits a defendant to be convicted of a specified crime if the defendant, while not herself committing the crime, assisted another person or persons in committing the crime. As to Counts Two, Four, and Six, therefore, the defendant can be convicted either if she committed the crime herself, or if another person committed the crime and the defendant aided and abetted that person to commit that crime. Under the federal aiding and abetting statute, whoever "aids, abets, counsels, commands, induces, or procures" the commission of an offense is punishable as a principal. You should give those worse their ordinary meaning. In other words, it is not necessary for the Government to show that the defendant herself physically committed the crime charged in order for you to find her guilty. This is because a person who aids, abets, counsels, commands, induces, or procures the commission of a crime is just as guilty of that offense as if she committed it herself. Accordingly, you may find the defendant guilty of the offenses charged in Counts Two, Four, and Six if you find beyond a reasonable doubt that the Government has proven that another person actually committed the offense with which the defendant is charged, and that the defendant aided, abetted, counseled, commanded, induced or procured that person to commit the crime. As you can see, the first requirement is that another person has committed the crime charged. Obviously, no one can be convicted of aiding and abetting the criminal acts of another if no crime was committed by the other person. But if you do find that a crime was committed, then you must consider whether the defendant aided or abetted the commission of the crime. 37 EFTA00074540 To aid or abet another to commit a crime, it is necessary that the Government prove that the defendant willfully and knowingly associated herself in some way with the crime committed by the other person and willfully and knowingly sought by some act to help the crime succeed. However, let me caution you that the mere presence of the defendant where a crime is being committed, even when coupled with knowledge by the defendant that a crime is being committed, or the mere acquiescence by a defendant in the criminal conduct of others, even with guilty knowledge, is not sufficient to make the defendant guilty under this approach of aiding and abetting. Such a defendant would be guilty under this approach of aiding and abetting only if, in addition to knowing of the criminal activity, she actually took actions intended to help it succeed. An aider and abettor must know that the crime is being committed and act in a way that is intended to bring about the success of the criminal venture. To determine whether a defendant aided or abetted the commission of the crime with which she is charged, ask yourself these questions: 1. Did the defendant participate in the crime charged as something she wished to bring about? 2. Did the defendant knowingly and willfully associate herself with the criminal venture? 3. Did the defendant seek by her actions to make the criminal venture succeed? If she did, then the defendant is an aider and abettor, and therefore guilty of the offense. If, on the other hand, your answer to any of these questions is "no," then the defendant is not an aider and abettor, and you must find her not guilty under that theory. Adapted from Sand et al., Modern Federal Jury Instructions, Instr. 11-2; 18 U.S.C. § 2; the charge given by the Hon. Alison J. Nathan 38 EFTA00074541 in United States v. Jones, 16 Cr. 553 (AIN) and in United States v. Pizarro, 17 Cr. 151 (AIN); and the charge given by the Hon. Kimba M. Wood in United States v. Almonte, 16 Cr. 670 (KMW). 39 EFTA00074542 Counts One and Three and Five: Conspiracy to Violate Federal Laws— The Statute The relevant statute for Counts One, Three, and Five is Title 18, United States Code, Section 371, which provides that "if two or more people conspire [J to commit any offense against the United States . . . and one or more of such persons do any act to effect the object of the conspiracy," each person is guilty of a federal crime. 40 EFTA00074543 Counts One and Three and Five: Conspiracy to Violate Federal Laws— Conspiracy and Substantive Counts Counts One, Three, and Five of the Indictment each charge the defendant with participating in a "conspiracy." As I will explain, a conspiracy is a kind of criminal partnership —an agreement of two or more people to join together to accomplish some unlawful purpose. The crime of conspiracy to violate federal law is an independent offense from the actual violation of any specific federal law. Indeed, you may find the defendant guilty of conspiring to violate federal law even if you find that the crime which was the object of the conspiracy was never actually committed. As I will explain, each of the three different conspiracy counts here alleges a different purpose: the purpose of the conspiracy charged in Count One is to commit the enticement of minors offense I described for Count Two; the purpose of the conspiracy charged in Count Three is to commit the transportation of minors offense I described for Count Four; and the purpose of the conspiracy charged in Count Five is to commit the sex trafficking offense I described for Count Six. The crime of conspiracy — or agreement — to violate a federal law is an independent offense. It is separate and distinct from the actual violation of any specific federal laws, which the law refers to as "substantive crimes." You may find a defendant guilty of the crime of conspiracy —in other words, agreeing to violate federal law—even if you find that the substantive crime which was the object of the conspiracy was never actually committed. Adapted from Sand, et al., Modern Federal Jury Instructions, Instr. 19-2; the charge of the Hon. Alison J. Nathan in United States v. Lebedev, 15 Cr. 769 (AJN);