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Case 1:20-cr-00330-PAE Document 204 _ Filed 04/16/21 Page 219 of 239 Seventh, the defendant seeks a proffer of all co-conspirator statements that the Government intends to offer at trial pursuant to Federal Rule of Evidence 801(d)(2)(E). (Def. Mot. 10 at 13- 14). In making this motion, the defense cites authority confirming that co-conspirator statements may be admitted at trial on a conditional basis without the need for any pretrial consideration of their admissibility. See United States v. Tracy, 12 F.3d 1186, 1199 (2d Cir. 1993) (“The decision as to whether the four prerequisites have been met, like all other preliminary questions of admissibility, is to be made by the court. If the government succeeds in persuading the court that the conditionally admitted coconspirator statements were made during and in furtherance of a conspiracy of which both the declarant and the defendant were members, the statements are allowed to go to the jury. If the court is not so persuaded, it either should instruct the jury to disregard the statements, or, if those statements were ‘so large a proportion of the proof as to render a cautionary instruction of doubtful utility,’ should declare a mistrial.” (internal citations omitted) (quoting United States v. Geaney, 417 F.2d 1116, 1120 (2d Cir. 1969))). Indeed, the Second Circuit has rejected the suggestion that non-exculpatory co-conspirator statements are discoverable under Rule 16 or by any means other than the Jencks Act. See In re U.S., 834 F.2d 283, 284-87 (2d Cir. 1987) (issuing a writ of mandamus reversing District Court’s order directing the Government “to produce all oral statement made by the defendants and coconspirators that the Government planned to offer at trial as admissions of a defendant” under Fed. R. Evid. 801). Consistent with the Government’s intention to produce Jencks Act material several weeks in advance of trial, the defense will receive notice of any co-conspirator statements that the Government may seek to introduce through witness statements with sufficient time to raise any objections with the Court. Accordingly, this motion should be denied 192 DOJ-OGR-00003153