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Case 1:20-cr-00330-PAE Document 291 Filed 05/21/21 Page5of13 Page 5 v. Cole, 19 Cr. 869 (ER), Dkt. No. 23 (S.D.N.Y. Feb. 18, 2020) (contemplating 3500 material four weeks before trial in complex accounting fraud case); United States v. Carton, 17 Cr. 680 (CM), Dkt. No. 66 (S.D.N.Y. July 10, 2018) (3500 material one month before securities fraud trial). The defense’s request for yet earlier disclosure is unfounded and reflects a significant—and unwarranted—departure from the practices in this District. Consistent with the Government’s previously stated position (Dkt. No. 204 at 192), it is entirely appropriate for defense counsel to receive notice of any co-conspirator statements through Jencks Act materials and marked exhibits. This is because the Government only intends to introduce co-conspirator statements either through the testimony of witnesses, which will be previewed in the Jencks Act material, or in the exhibits, which will be marked before trial. As the Government has previously noted, the Second Circuit has rejected the notion that non-exculpatory co-conspirator statements are discoverable by Rule 16 or by any other means other than the Jencks Act. See In re U.S., 834 F.2d 283, 284-87 (2d Cir. 1987) (issuing a writ of mandamus reversing District Court’s order directing the Government “to produce all oral statements made by the defendants and coconspirators that the Government planned to offer at trial as admissions of a defendant” under Fed. R. Evid. 801). The cases cited by the defense all involved orders granting bills of particulars requiring the Government to provide a list of all alleged coconspirators. They did not involve orders directing separate notice of coconspirator statements that the Government may introduce at trial. Indeed, the Government is unaware of any case in which such particularized notice distinct from the production of Jencks Act and marked exhibits has been ordered, and the defense cites none. This Court has already denied the defendant’s motion for a bill of particulars for Counts One through Four (see Dkt. No. 207 at 19), and the Government has separately submitted its opposition to the defendant’s supplemental motion for a bill of particulars. DOJ-OGR-00004255