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Case 1:20-cr-00330-PAE Document 380 _ Filed 10/29/21 Page 30 of 54 hearsay. See id. at 246 (majority op.) (charging decisions proper subjects for cross-examination only “if otherwise admissible”); Hill, 2014 WL 198813, at *1-2 (precluding cross examination of agent regarding district attorney’s charging decision as inadmissible hearsay). The Government’s prior charging decisions and the bases for them are irrelevant, hearsay, and disruptive to the trial. They should not be admitted. B. The Court Should Preclude Evidence or Argument About the Length of And Investigative Steps Taken During Current or Prior Investigations For similar reasons, the defense should be precluded from offering evidence or arguing to the jury about the investigative steps taken during the Florida Investigations or this Office’s investigation, including the duration of those investigations. 1. Applicable Law It is settled law that the jury should “base its decision on the evidence or lack of evidence that had been presented at trial.” United States v. Saldarriaga, 204 F.3d 50, 52 (2d Cir. 2000) (per curiam). The Government’s “failure to utilize some particular technique or techniques does not tend to show that a defendant is not guilty of the crime with which he has been charged.” Id. at 53; see, e.g., United States v. Ngono, 801 F. App’x 19, 24 (2d Cir. 2020) (summary order) (“We have held that a district court does not commit error in instructing the jury that the Government has no legal obligation to use any particular investigative technique in preparing its case.”). While a defendant “may comment on the failure of proof in the record, such as the absence of forensic evidence in the form of voice, handwriting, or fingerprint analysis,” such comment becomes improper when it encompasses the further argument that “the government had failed to undertake to procure such evidence.” United States v. Londono, 175 F. App’x 370, 375 29 DOJ-OGR-00005423