DOJ-OGR-00005866.jpg

Case 1:20-cr-00330-PAE Document 397 Filed 10/29/21 Page 83 of 84 such evidence in its case-in-chief, unless the defendant opens the door to this evidence or otherwise puts it at issue at trial. Furthermore, if the defendant testifies, the Government may cross-examine the defendant about this conduct, depending on the scope of her direct examination. But the Government will not affirmatively offer this evidence in its case-in-chief. The same is true for the defense motion to exclude evidence of the defendant’s false statements in her 2016 depositions. (Def. Mot. 6 at 1). Although false exculpatory statements are admissible as proof of a defendant’s consciousness of guilt (see Gov’t Opp. at 142-43, Dkt. No. 204 (citing, e.g., United States v. Anderson, 747 F.3d 51, 60 (2d Cir. 2014)), the Government does not intend—and so will agree—not to offer this information as part of its case-in-chief, unless the defense opens the door or otherwise puts these statements at issue. However, the Government may offer these statements in rebuttal to defense arguments. Moreover, the defendant’s prior statements are of course appropriate material for cross-examination of the defendant. The Government also consents to the defense request to redact the perjury counts from the Indictment. (Def. Mot. 6 at 6). Finally, the defense seeks to preclude the Government’s law enforcement witnesses from offering expert testimony. (Def. Mot. 10 at 5). The defense appears to take an improperly broad view of the scope of expert testimony.7*> However, the Government has not noticed the three law 3 For instance, the defense, citing United States v. Garcia, 413 F.3d 201 (2d Cir. 2005), makes the sweeping claim that “any opinion testimony” based on those three law enforcement witnesses’ “specialized ‘training and experience’ is expert opinion testimony subject to Rule 702 and Rule 16(1)(G) and is inadmissible at trial.” (Def. Mot. 10 at 4 (emphasis in original)). But in Garcia, the Second Circuit simply held that an undercover law enforcement agent could not testify as lay opinion that, based on his knowledge from other drug interdiction cases, the defendant was a 82 DOJ-OGR-00005866