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Case 1:20-cr-00330-PAE Document 235 Filed 04/22/21 Page 7 of10 Page 7 at trial. Simply put, the defense does not need to investigate crimes with which the defendant is not charged. Moreover, the defense’s most recent letter refers to these materials as somehow constituting Brady material without any explanation of what information within the most recent production is supposedly exculpatory. But given that, as noted above, a significant majority of the non-testifying witness materials do not reference the defendant, to the extent the defense is suggesting that the existence of victims who were abused by Jeffrey Epstein without assistance from the defendant constitutes Brady material, the Government has repeatedly noted that such evidence is not exculpatory. (See, e.g., Dkt. No. 65 at 1-2; Dkt. No. 204 at 47-48 (citing, inter alia, United States v. Scarpa, 897 F.2d 63, 70 (2d Cir. 1990) (“A defendant may not seek to establish h[er] innocence . . . through proof of the absence of criminal acts on specific occasions.”’))). Regardless, the defense has ample time to review these materials in advance of trial, and the Government intended to produce all of these materials to the defense with or without a superseding indictment.* Thus, the defense would have needed to review and investigate these materials even if the Government never obtained the S2 Indictment. Although the defense claims 4 The Government understands from defense counsel that the CD containing a copy of this production, which the Government sent to the MDC via FedEx overnight shipping last week, has not been provided to the defendant. The Government has repeatedly asked MDC legal counsel to locate this CD and provide it to the defendant, and today MDC legal counsel confirmed that the CD would be delivered to the defendant this afternoon. As the Court is aware, the Government has gone to significant lengths to address the technical issues defense counsel have raised with respect to the discovery, and to ensure that the defendant expeditiously receives copies of each production. Indeed, in November 2020, the undersigned hand delivered a laptop and discovery production to the MDC for the defendant, and the Government understands the defendant received those items that same day. Although it is not feasible for the Government to hand deliver every production to the MDC, the Government has informed defense counsel that the undersigned will hand deliver the Government’s first production of Giglio and Jencks Act material to the MDC to minimize any delay in the defendant’s ability to access that material when it is produced. DOJ-OGR-00003949