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Case 1:20-cr-00330-PAE Document 243 Filed 04/23/21 Page3of5 The Hon. Alison J. Nathan April 22, 2021 Page 3 Oguns, 921 F.2d 442, 447 (2d Cir. 1990) (“The government bears the burden of proving that the taint [of an illegal search] has been alleviated.”)). Like a Kastigar hearing, “the government bears ‘the heavy burden of proving that all of the evidence it proposes to use was derived from legitimate independent sources.’” See United States v. Allen, 864 F.3d 63, 91 (2d Cir. 2017) (quoting Kastigar v. United States, 406 U.S. 441, 453, 461-62 (1972) (holding that use and derivative use immunity provides protection “from the use of compelled testimony, as well as evidence derived directly and indirectly therefrom,” and reversing conviction for Fifth Amendment violation)). “[C]onclusory denials [of taint] are insufficient as a matter of law to sustain the prosecution’s burden of proof.” /d. at 94. The government’s April 21 letter, with its vague and conclusory assurances, thus offers no reason to postpone consideration of Ms. Maxwell’s motions to suppress. The government’s purported reservation of rights is also without merit. Initially, it is not at all clear what the government means when it says it might “use relevant materials from this set for any purpose permissible under the Rules of Evidence.” (Dkt. No. 227, p 2). But if the government means that it intends to use the suppression material for impeachment purposes, that is all the more reason to hold an evidentiary hearing now and to resolve Ms. Maxwell’s motions before trial on the non-perjury counts. There are at least two reasons why. First, while the constitution in certain circumstances allows the government to use unconstitutionally-obtained evidence for impeachment purposes, e.g., Harris v. New York, 401 U.S. 222, 223-24 (1971) (statements secured in violation of Miranda are admissible for impeachment purposes if voluntary), the constitution forbids admission of evidence for all purposes if the government’s conduct violated due process, e.g., New Jersey v. Portash, 440 U.S. 450, 459 (1979) (due process DOJ-OGR-00003969