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Case 1:20-cr-00330-PAE Document 453 Filed 11/12/21 Page12 of 52 Il. GOVERNMENT CONCEDEDLY FAILED TO GIVE NOTICE OF THE BASIS OR REASONING TO ADMIT ANY 404(B) EVIDENCE The government concedes that (1) it was aware of the December 2020 Amendments to Rule 404(b) (Resp. at 34), (11) those Amendments required it to give notice of the "permitted purpose for which the prosecutor intends to offer the [404(b)] evidence and the reasoning that supports the purpose" (id.) ("Notice"), and (iii) the October 11 "Maxwell Rule 404 Letter" ("Letter") did not identify the "permitted purpose" under Rule 404(b) for which the government seeks (alternative) admission of the two categories of evidence, nor the "reasoning that supports that evidence."! The government wholly fails to explain why it could not comply with these "relatively modest" new Notice requirements on the timeline ordered by this Court. Nowhere in response does the government seek leave for an extension to provide the appropriate Notice out of time nor justify its "good cause" for failure to timely comply with both the Court's Order and the Rule. Instead, they assert that "any alleged gap in the Government's notice is remediated by this brief." Resp. at 39-40. To quote the government's response to Ms. Maxwell's motion in limine, "to the extent the [government] takes issue with the rule" requiring specific pre-trial Notice under Rule 404(b), "that complaint is properly directed to the drafters of the Federal Rules of Evidence." Resp. at 61 n.15. Having failed to comply with the Notice requirements of the Rule by the (extended) Court ordered deadline of October 11, the government belatedly argues that the tendered evidence is either direct evidence or admissible under Rule 404(b). They are wrong on both fronts. 1 Under the misleading and disingenuous sub-heading (2) ("The Government has Met and Exceeded its Notice Obligations"), the government points only to its (i) October 11 disclosure of certain of the evidence (which gives neither a a proper "purpose" or "reasoning"), and (i1) its Response (the required "notice is remediated by this brief"). DOJ-OGR- 00006892