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Case 1:20-cr-00330-PAE Document 438 Filed 11/12/21 Page 39 of 54 Minor Victim-6, including statements made by them, that testimony will not include any statements by Minor Victim-5 or Minor Victim-6 offered for the truth of the matter asserted or under one of the other exceptions listed in Rule 806. See Fed. R. Evid. 806 (referencing Fed. R. Evid. 801(d)(2)(C)-(E), which concern authorized speakers, agents or employees acting within the scope of that relationship, and co-conspirator statements). That testimony instead is expected to include discussion of acts by Minor Victim-5 and Minor Vicitm-6 and statements offered not for the truth of the matter asserted, but for some other reason, such as the effect on the listener. For instance, and as noted above, Minor Victim-4 is expected to testify that she was recruited by Minor Victim-5. Those statements are not offered for their truth, but to explain Minor Victim- 4’s actions. Similarly, Minor Victim-4 is expected to testify that she personally observed the sexual abuse of Minor Victim-5—observations that require no hearsay statements from Minor Victim-5. Accordingly, since Minor Victim-5 and Minor Victim-6 are neither witnesses nor hearsay declarants, their credibility is not at issue, and they should not be subject to 0 impeachment or attack on that basis.! VI. Evidence or Argument that Minor Victims Consented to Sexual Abuse is Inadmissible A defendant is entitled to present a defense only if it has a foundation in the evidence and it does not fail as a matter of law. See, e.g., United States v. Miles, 748 F.3d 485, 489 (2d Cir. 2014) (per curiam) (“A federal court may preclude a defendant from presenting a defense when ‘0 This analysis is not unique to the Minor Victims. Attacks on the credibility of any individual who is neither a witness nor a hearsay declarant, including victims’ counsel, is improper. (See, e.g., Reply Mem. of Law, Dkt. No. 285 (arguing that the Government improperly colluded with victim’s counsel)). 38 DOJ-OGR-00006399