DOJ-OGR-00004253.jpg

Case 1:20-cr-00330-PAE Document 291 Filed 05/21/21 Page3of13 Page 3 to Federal Rule of Evidence 404(b) by October 11, 2021, or 7 weeks in advance of trial. These materials will include testifying witness statements, which themselves will also include any co- conspirator statements about which witnesses may testify at trial. This deadline, which is far in advance of when such disclosures are ordinarily made in this District, will provide the defense with ample time to review these materials and prepare for trial. The proposed deadline for notice under Federal Rule of Evidence 404(b) will provide the defense with ample time to review the disclosure and file any appropriate motions. The defense has requested that the Government disclose Giglio and Jencks Act material 9 weeks in advance of trial, arguing that these materials are necessary for the preparation of motions in limine. The Government respectfully notes that this proffered reason does not justify even earlier disclosure of the material, particularly in light of the routine practice in this District to brief motions in limine well in advance of disclosure of Giglio and Jencks Act material.’ Instead, the Government is prepared to provide the defense with such material 7 weeks in advance of trial, which is significantly earlier than in most cases and consistent with the common practice in this District—even for trials held during the pandemic—as well as the Court’s April 26, 2021 Order.’ ' See, e.g., United States v. Silver, 15 Cr. 93 (month-long bribery trial; 3500 material and Government exhibits produced approximately three weeks before trial (one week after motions in limine)); United States v. Levin, 15 Cr. 101 (two defendant, three-plus week fraud trial; 3500 material produced two weeks before trial (three weeks after motions in limine; reciprocal exhibit lists exchanged six weeks before trial); United States v. Skelos, 15 Cr. 317 (two defendant, month- long bribery trial; 3500 material and Government exhibits produced approximately one month before trial (one week prior to motions in limine)); United States v. Ulbricht, 14 Cr. 68 (three week cybercrime and narcotics trial; 3500 material produced one week before trial (more than three weeks after motions in limine)). > The Government respectfully notes that the law is clear in this Circuit that the Government is under no obligation under the Jencks Act, 18 U.S.C. § 3500 et seq., to produce prior statements of its witnesses until after each witness has testified on direct examination. Courts in this Circuit have consistently held that the district courts lack the power to mandate early production of Jencks material. See, e.g., United States v. Coppa, 267 F.3d 132, 145 (2d Cir. 2001) (the “Jencks Act DOJ-OGR-00004253