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Case 1:20-cr-00330-PAE Document 244 _ Filed 04/23/21 Page 13 of 14 The Honorable Alison J. Nathan April 2, 2021 Page 13 only recourse is to seek production from BSF which admittedly has the material in its possession. Otherwise, once the witness testifies and a request is made for the material the government will simply profess blessed ignorance. Contrary to BSF’s assertion, the EVCP is not “mere” impeachment material; it is Brady material that the government would be required to turn over if in their possession. The government knows that it “is under no obligation to turn over that which it does not have,” United States v. Upton, 856 F. Supp. 727, 746 (E.D.N.Y. 1994), which is why it refuses to obtain the material. Once again, Ms. Maxwell needs the Court’s assistance. Information is “exculpatory and thus ‘favorable’ to the defense for Brady purposes when it directly contradicts the motive theory testified to by prosecution witnesses. Mendez v. Artuz, 303 F.3d 411, 414 (2d Cir. 2002). For the reasons articulated in Ms. Maxwell’s ex parte submission, the EVCP Materials directly contradict the “motive theory” that will be advanced by the prosecution at trial — that Ms. Maxwell was the procurer of underaged women for Epstein. In addition, even if the materials were deemed “impeachment only” they would remain discoverable by a subpoena as exculpatory evidence. Where, as here, the government’s proof depends almost entirely on the uncorroborated testimony of the accusers, “impeachment” evidence is material and discoverable in advance of trial. As discussed in Poventud v. City of New York, No. 07 CIV. 3998 DAB, 2015 WL 1062186, at *8 (S.D.N.Y. Mar. 9, 2015), [I]mpeachment evidence constitutes exculpatory evidence that must be disclosed. The disclosure of impeachment evidence, where “the [g]overnment's case depended almost entirely on [the victim's] testimony,” Giglio v. United States, 405 U.S. 150, 154-55 (1972), goes to the heart of Brady and Giglio. See Napue v. People of State of Illinois, 360 U.S. 264, 269 (1959) (“The jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence.”). DOJ-OGR-00003984