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Case 1:20-cr-00330-PAE Document 285 Filed 05/20/21 Page 31 of 34 B. Ata Minimum, this Court Should Order a Hearing at which Maxwell May Inquire into the Circumstances Surrounding the Government’s Misrepresentation to Judge McMahon. “An evidentiary hearing is normally required to address motions to suppress where a factual issue is in dispute.” United States v. Paredes-Cordova, No. S1 03 CR. 987DAB, 2009 WL 1585776, at *1 (S.D.N.Y. June 8, 2009); United States v. Pena, 961 F.2d 333, 339 (2d Cir. 1992) (“[A]n evidentiary hearing on a motion to suppress ordinarily is required if the moving papers are sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude that contested issues of fact going to the validity of the search are in question.” (quotation omitted))). Here, the government has confessed enough facts to demonstrate that Maxwell at least is entitled to a hearing. There is no merit to the government’s assertion that Maxwell is not entitled to a hearing because she has not submitted an affidavit in support of her Motion. An affidavit is not a prerequisite to a hearing when the government has confessed the existence of facts sufficient to entitle a defendant to an evidentiary hearing. Nor is an affidavit required when information at issue is peculiarly within the possession of the government (e.g., AUSA J and AUSA J) or others who are adverse to Maxwell (e.g., Boies, Edwards, Skinner, Pottinger). See Cortina, 630 F.2d at 1216 (“The violation here is particularly insidious because it is difficult to uncover misrepresentations in an [ex parte submission]. The information needed to prove such assertions false is peculiarly within the hands of the government.”). Since Maxwell was not at the February 29 meeting or copied on any of the emails or communications that followed, the Response does not explain how Maxwell could possibly submit an affidavit attesting to the government’s misrepresentations based on personal knowledge. 26 DOJ-OGR-00004166