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Case 1:20-cr-00330-PAE Document212 Filed 04/16/21 Page 15 of 20 suppression is proper under this Court’s inherent and supervisory authority. Mot. No. 3 & Reply in Support Thereof. Ill. The Government’s violation of the Fifth Amendment requires suppression. The government offers three responses to Maxwell’s Fifth Amendment argument. None is persuasive. The government’s first response is to deny any state action. Resp. at 99-100. But as even the government admits, a private party, like Boies Schiller, is deemed to be an agent of the state when the government “has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.” Resp. at 99 (quoting United States v. Stein, 541 F.3d 130, 146 (2d Cir. 2008)). Here, based on the record of the government’s contacts with Boies Schiller in the months before and after Maxwell’s depositions, there is at least a genuine question of fact as to the government’s role in encouraging Boies Schiller. We know that the government contemplated a perjury prosecution of Maxwell, as seen in the government’s newly-disclosed notes from the meeting. Reply ISO Mot. to Suppress, Ex. K, p 5. And if the government is to be believed, there was only one meeting with Boies Schiller, two months before Maxwell’s first deposition. If the government was contemplating a perjury prosecution before Maxwell even testified, it stands to reason that Boies Schiller and the government discussed at the February 29 meeting a plan to set a perjury trap for Maxwell. Indeed, the contemporaneous notes of the February 29 meeting show that Boies Schiller promised to send the government “depositions,” Reply ISO Mot. to Suppress, Ex. J, p 8, and David Boies later complained about his frustration that the government had not yet charged 10 DOJ-OGR-00003789