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Case 1:20-cr-00330-PAE Document517 Filed 11/30/21 Page2of4 a defendant cross-examines a government witness to buttress her theory of the case, rather than to impeach the testimony given by the witness on direct examination, the cross-examination is properly seen as part of the defendant’s case-in-chief.” United States v. Napout, No. 15 Cr. 252 (PKC), 2017 WL 6375729, at *7 (E.D.N.Y. Dec. 12, 2017) (quoting United States v. Hsai, No. 98 Cr. 75 (PLF), 2000 WL 195067, at *2 (D.D.C. Jan. 12, 2000)) (alterations and internal quotation marks omitted). “[T]his interpretation of Rule 16 has been adopted by almost every district court to consider the issue.” /d. (collecting cases); see United States v. Young, 248 F.3d 260, 269 (4th Cir. 2001) (affirming exclusion of evidence offered through cross-examination as part of the defense’s “evidence in chief,” under the prior language of Rule 16, due to the defense’s failure to disclose). Accordingly, the rule “requires [the defense] to identify all non-impeachment exhibits they intend to use in their defense at trial, whether the exhibits will be introduced through a government witness or a witness called by [the defense].” Napout, 2017 WL 6375729, at *7. The reasoning is simple: a contrary rule would “permit defendants to evade pretrial disclosure simply by presenting much (or all) of their case-in-chief before the government rests,” thereby “frustrat[ing] the practical intentions behind Rule 16: to avoid unfair surprise and unwarranted delay by providing both the government and the defense with a broad, reciprocal right to discovery.” United States v. Crowder, 325 F. Supp. 3d 131 (Mem.) (D.D.C. Sept. 24, 2018). The defendant’s Rule 16 disclosures were due on November 8, 2021. (Dkt. No. 297 at 2). Accordingly, any exhibits which the defense intends to offer as part of its case-in-chief, whether through Government witnesses or its own, should have been disclosed at that time. The Government of course understands that there are circumstances in which intervening event may DOJ-OGR-00008191