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Case 1:20-cr-00330-PAE Document 385 _ Filed 10/29/21 Page9of12 the admissibility of the other act evidence." Wright & Miller, supra. Should the Government request a "good-cause" exemption for their failure to timely provide Rule 404(b) notice, this Court should analyze their excuse with skepticism. "Prosecutors should be prepared to explain their change of heart and to rebut allegations of sandbagging. Unforeseen turns of testimony at trial are one thing. Reasonably anticipated proof problems are another. For example, when intent is an element of a charged offense, a prosecutor will be hard pressed to explain why he did not foresee before trial that the other act proof may be important in a jury's determination of intent.” Wright & Miller, supra. Here, the government has been on notice of the elements it needs to prove since July 2020. It advised the Court it would be able to provide Rule 404(b) notice back in May 2021. Dkt. 229 at 3. With the trial continuance, it gained an additional five months. See Dkt. 297. There is no acceptable excuse for failure to follow the requirements of the Rule. Given the significant number of other pre-trial filing deadlines, briefing the admissibility of the proffered Rule 404(b) evidence in the midst of her other obligations will be exceptionally difficult. Ifthe Court is inclined to grant the government additional time to satisfy the Rule, Ms. Maxwell requests ample time to investigate the materials and to respond. Ill. Ms. Maxwell Needs Additional Time to Respond to the Scant Notice that the Materials Qualify as “Direct Evidence” in the Case The Rule 404(b) Letter also repeated the Government's opinion that the newly-disclosed materials qualify as "direct evidence" of the conspiracy. At first blush, it is hard to see how they could so qualify. | SS Wm They do not reference or have anything to do with (a) the persons mentioned in the Indictment or any other testifying witness, nor (b) any of the legal allegations contained in the DOJ-OGR-00005618