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Case 1:20-cr-00330-PAE Document 234 _ Filed 04/22/21 Page4of5 The Hon. Alison J. Nathan April 22, 2021 Page 4 forbids the state from compelling incriminating statements from a defendant and “any criminal trial use against a defendant of his involuntary statement is a denial of due process of law” (emphasis in original) (quoting Mincey v. Arizona, 437 U.S. 385, 398 (1978)). Here, the government violated due process when it misrepresented and misled Chief Judge McMahon in an ex parte proceeding to circumvent the civil protective order, and it independently would violate due process for the government to be allowed to use that evidence at all, for any purpose. U.S. CoNsT. amend. V; United States v. Lambus, 897 F.3d 368, 386 (2d Cir. 2018) (“It is within the court’s inherent authority to suppress evidence gathered unlawfully in order to maintain the integrity of its own proceedings. . . .”). Second, unless Ms. Maxwell knows what evidence the government can use against her, under what circumstances, and for what purpose, she cannot make a knowing and voluntary decision about whether to testify and or to assert her right to remain silent. U.S. CONST. amends. V, VI; Rock v. Arkansas, 483 U.S. 44, 51 (constitution guarantees a defendant the right to testify in her defense); Brown v. Artuz, 124 F.3d 73, 78 (2d Cir. 1997) (wavier of the right to testify must be knowing and voluntary). Ms. Maxwell’s decision whether to testify is personal and fundamental. /d. (“[T]he decision whether to testify belongs to the defendant and may not be made for [her] by defense counsel.”). And for their part, counsel cannot effectively represent Ms. Maxwell and advise her regarding the exercise of her right to testify unless they too know the legal ramification of testifying or remaining silent. /d. at 79 (defense counsel must “advise the defendant about the benefits and hazards of testifying and of not testifying’). These considerations necessitate resolution of Ms. Maxwell’s motions to suppress before the trial on the non-perjury counts. DOJ-OGR-00003941