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Case 1:20-cr-00330-PAE Document 397 Filed 10/29/21 Page 56 of 84 802(d)(2)(E) because it claims the Government failed to comply with the Court’s September 3, 2021 Order. (Def. Mot. 1 at 1). The defense misreads this Court’s September 3, 2021 Order to require the Government to do something unprecedented: identify and itemize for the defense each and every co-conspirator statement it plans to use at trial, seven weeks in advance of trial. Then, complaining that the Government has not complied with the defense’s peculiar reading, the defense seeks an extraordinary remedy: precluding the Government from offering any co- conspirator statements at trial. Each step of this analysis is erroneous, and the Court should deny the motion. A. Background The defendant first sought to compel the Government to identify the co-conspirator statements it plans to use at trial in its initial round of pretrial motions. There, the defendant argued that the Second Circuit’s practice of conditional admission of co-conspirator statements at trial would prejudice her because “any cautionary instruction would be of doubtful utility.” (Mem. of Law at 13, Dkt. No. 148). She therefore asked the Court to order a “proffer from the government or conduct a pretrial hearing to determine if the statements are admissible.” (/d. at 13-14). In response, the Government observed that the practice of conditional admission of co- conspirator statements is the law of the Circuit, notwithstanding the defense’s preference to the contrary. (Gov’t Opp. at 192, Dkt. No. 204). The Government also explained that “the Second Circuit has rejected the suggestion that non-exculpatory co-conspirator statements are discoverable under Rule 16 or by any means other than the Jencks Act.” (/d.). 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 55 DOJ-OGR-00005839