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Case 1:20-cr-00330-PAE Document 705 Filed 07/12/22 Page5of12 The Honorable Alison J. Nathan May 12, 2021 Page 5 Given that Accuser-2, the putative witness, has publicly claimed to rely on the journal to “refresh” her memory and the government’s apparent intention to introduce the pages at trial other evidentiary principles related to fairness come into play. F.R.E. 106, the Rule of Completeness, allows that “[i]f a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part--or any other writing or recorded statement--that in fairness ought to be considered at the same time.” Federal Rule of Evidence 612 is also applicable here and states: (a) Scope. This rule gives an adverse party certain options when a witness uses a writing to refresh memory: (1) while testifying; or (2) before testifying, if the court decides that justice requires the party to have those options. (b) Adverse Party's Options; Deleting Unrelated Matter. Unless 18 U.S.C. § 3500 provides otherwise in a criminal case, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness's testimony. If the producing party claims that the writing includes unrelated matter, the court must examine the writing in camera, delete any unrelated portion, and order that the rest be delivered to the adverse party. Any portion deleted over objection must be preserved for the record. (c) Failure to Produce or Deliver the Writing. If a writing is not produced or is not delivered as ordered, the court may issue any appropriate order. But if the prosecution does not comply in a criminal case, the court must strike the witness's testimony or--if justice so requires--declare a mistrial. The witness has admitted using the journal to refresh her memory. Title 18 of U.S. Code § 3500 is inapplicable here by its very terms because the remainder of the journal is, admittedly, not in the possession of the government. See 18 U.S.C. § 3500(a) (applies exclusively to statements “in the possession of the United States”); see also United States v. Bin Laden, 397 F. Supp. 2d 465, 491 (S.D.N.Y. 2005) (“The statute thus establishes three essential elements DOJ-OGR-00011245