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Case 1:20-cr-00330-PAE Document518 Filed 11/30/21 Page2of8 The Honorable Alison J. Nathan November 30, 2021 Page 2 (i) the item is within the defendant’s possession, custody, or control; and (ii) the defendant intends to use the item in the defendant’s case-in- chief at trial. Fed. R. Crim. P. 16(b)(1)(A) (emphasis added). Under subsection (b)(1)(A)(i1), a defendant’s reciprocal discovery obligations are limited to material—specifically books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items—that she intends to use in her “case-in-chief.” it4 In turn, a party’s “case-in-chief” includes only “[t]he evidence presented at trial by a party between the time the party calls the first witness and the time the party rests.” Black’s Law Dictionary (11th ed. 2019). By definition, therefore, a defendant’s “case-in-chief” does not include her cross-examination of a prosecution witness during the government’s “case-in-chief.” Here, Ms. Maxwell has not called her first witness. Only the government has called witnesses. The case is currently in the government’s “case-in-chief,” and Ms. Maxwell’s “case- in-chief” has not yet started. Because Ms. Maxwell has not begun her case-in-chief, she had no obligation under Rule 16(b)(1)(A) to disclose the photograph she offered in evidence while cross-examining Jane. There is no doubt Rule 16(b)(1)(A) does not apply to material a defendant offers into evidence while cross-examining witnesses during the government’s case-in-chief. The 1974 Committee Notes to Rule 16 say this expressly: “Subdivision (b)(1)(A) provides that the defendant shall disclose any documents and tangible objects which he has in his possession, custody, or control and which he intends to introduce in evidence in his case in chief.” Fed. R. Crim. P. 16, Committee Notes to 1974 Amendment. DOJ-OGR-00008195