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Case 1:20-cr-00330-PAE Document 243 Filed 04/23/21 Page2of5 The Hon. Alison J. Nathan April 22, 2021 Page 2 The government says that this Court need not resolve Ms. Maxwell’s motions to suppress or hold an evidentiary hearing before the trial on the non-perjury counts because it “does not intend to use these materials”—i.e., any of the materials subject to the suppression motions—“‘in its case-in-chief at the trial of the non-perjury counts in this case.” (Dkt. No. 227, p 1). At the same time, the government purports to “reserve[] its right to use relevant materials from this set for any purpose permissible under the Rules of Evidence.” /d. at 2. The government’s representation is not good enough, and its reservation of rights is misplaced. It is not enough for the government to represent that it “does not intend to use [the suppression] materials in its case-in-chief at the trial of the non-perjury counts in this case.” Id. at 1. That’s because Ms. Maxwell’s motions to suppress allege violations of the due process clause, the Fourth Amendment, the Fifth Amendment, and the Second Circuit’s decision in Martindell v. International Tel. & Tel. Corp., 594 F.2d 291 (2d Cir. 1979). If this Court agrees with Ms. Maxwell’s arguments, not only will it suppress all 90,000-some pages of material the government improperly obtained through its ex parte subpoena, it will also suppress all evidence derived therefrom. See Wong Sun v. United States, 371 U.S. 471, 488 (1963); United States v. Bailey, 743 F.3d 322, 341-42 (2d Cir. 2014). The government thus cannot avoid inquiry into its conduct simply by pledging not to use the material itself in its case-in-chief. If Ms. Maxwell is right—and an evidentiary hearing will show that she is—the government also cannot use any evidence it obtained “by exploitation of the illegality.” See Wong Sun, 371 US. at 488. What’s more, “the burden of proof on [an] attenuation claim is on the government.” United States v. Ghailani, 743 F. Supp. 2d 242, 259 (S.D.N.Y. 2010) (ordering an evidentiary hearing to put the government to its burden of proving attenuation) (citing United States v. DOJ-OGR- 00003968