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Case 1:20-cr-00330-PAE Document 331 Filed 08/30/21 Page4of5 The Honorable Alison J. Nathan August 30, 2021 Page 4 If disclosure of the witness and exhibit lists were by themselves sufficient to give Ms. Maxwell notice of the specific co-conspirator statements the government intends to admit at trial, this Court would not have separately ordered the government to disclose “co-conspirator statements.” /d. But that’s not what the Court did. There are very good reasons for this. This Court serves as a gatekeeper to the admission of alleged co-conspirator statements. The Supreme Court’s decision in Bourjaily v. United States requires the Court to determine, by a preponderance of the evidence, whether statements of a co- conspirator are admissible under Rule 801(d)(2)(E). 483 U.S. 171, 175-76 (1987). In making this determination, the Court must find that a conspiracy existed, that its members included the declarant and the party against whom the statement is offered, and that the statement was made during the course of and in furtherance of the conspiracy. Bourjaily, 483 U.S. at 175. If the government does not disclose what co-conspirator statements it intends to offer, as this Court already ordered the government to do by October 11, then Ms. Maxwell will be unable to file a motion in limine by October 18 challenging the admissibility of the co-conspirator statements and thereby put the government to its burden of proof and ensure this Court is able to discharge its gatekeeping function. See Bourjaily, 483 U.S. at 175-76. Although the government may not wish to give Ms. Maxwell the required notice, this Court has already entered its order. The government’s letter offers no reason, much less a compelling reason, for this Court to reconsider its order. The government has not even attempted to identify “controlling law or factual matters which it believes the court overlooked and that might reasonably be expected to alter the court’s decision.” Berger, 188 F. Supp. 2d at 328-39. And that’s because the Court didn’t overlook anything. The parties briefed this issue in their joint letter regarding pretrial DOJ-OGR-00005022