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Case 1:20-cr-00330-PAE Document 244 _ Filed 04/23/21 Page12o0f14 The Honorable Alison J. Nathan April 2, 2021 Page 12 justification for payment of the funds. BSF does not explain why it claims the submissions are “witness statements” and cites no authority for this proposition. Second, because the material is not in the possession of the government it is not a “statement” falling within Rule 17(h). “Witness Statements” covered by Rule 17 are defined by Fed. R. Crim. P. 26.2(f): (1) a written statement that the witness makes and signs, or otherwise adopts or approves; (2) a substantially verbatim, contemporaneously recorded recital of the witness's oral statement that is contained in any recording or any transcription of a recording; or (3) the witness's statement to a grand jury, however taken or recorded, or a transcription of such a statement. The “statements” are those of a testifying witness in the possession of the party who did not “call the witness,” produced upon request after the witness testifies at a qualifying event, such as a pretrial hearing or trial. Materials held by entities other than the United States generally fall outside the Jencks Act and are therefore not “witness statements.” United States v. Bermudez, 526 F.2d 89, 100 n.9 (2d Cir. 1975) (no violation of the Jencks Act, 18 U.S.C. § 3500(b), which requires the United States to turn over to defendants the statements of a witness which are “in the possession of the United States”); see also United States v. Ferguson, 478 F. Supp. 2d 220, 240 (D. Conn. 2007) (1979 Advisory Committee Note to Fed. R. Crim. P. Rule 26.2: “The rule ... is designed to place the disclosure of prior relevant statements of a defense witness in possession of the defense on the same legal footing as is the disclosure of prior statements of prosecution witnesses in the hands of the government under the Jencks Act, 18 U.S.C. § 3500....”). Once again, the government has purposely not obtained any of the EVCP Material. Accordingly, the EVCP Material is not a “statement” covered by Rule 17(h). Ms. Maxwell’s DOJ-OGR-00003983