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Case 1:20-cr-00330-PAE Document 267 Filed 05/03/21 Page3of7 The Hon. Alison J. Nathan May 3, 2021 Page 3 26.2(f) Advisory Committee’s Note, 1979 Addition. However, like the Jencks Act, the Rule requires disclosure of witness statements only after a witness has testified on direct examination. Fed. R. Crim. P. 26.2(a); see also Scotti, 47 F.3d at 1250 (“The plain language of both Rule 26.2 and 18 U.S.C. § 3500(a) shows that the discovery procedure therein outlined applies only to statements that must be produced after a witness testifies[.]”) (internal quotation omitted)); United States v. Felt, 502 F. Supp. 71, 74 (D.D.C. 1980) (“access is to be permitted after the defense witness has testified on direct examination”). A district court therefore lacks authority to order early disclosure statements of prospective defense witnesses. Due to their similarities, federal courts look to decisions interpreting 18 U.S.C. § 3500 in order to interpret Rule 26.2. The Second Circuit has long maintained that “the Jencks Act prohibits a District Court from ordering the pretrial disclosure of witness statements.” United States v. Coppa, 267 F.3d 132, 145 (2d Cir. 2001). See also In re U.S., 834 F.2d 283, 286 (2d Cir. 1987); United States v. Percevault, 490 F.2d 126, 132 (2d Cir. 1974) (‘the trial judge is prevented by the Jencks Act from ordering pretrial disclosure of statements made by a prospective government witness over the government’s objection”). Cf United States v. Benson, 20 F.R.D. 602, 605 (S.D.N.Y. 1957) (holding that Jencks v. United States, 353 U.S. 657 (1953) does not apply until “a witness is called to the witness stand”). Because the court cannot compel the government to provide early Jencks Act or Rule 26.2 disclosures to the defense — and the defense is not entitled to it by virtue of statute — it necessarily follows that the court cannot compel the same material from the defense. See Wardius v. Oregon, 412 U.S. 470, 475-76 (1973). A district court can only “encourage” the practice of early disclosure. See Percevault, 490 F.2d at 132. DOJ-OGR-00004086