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Case 1:20-cr-00330-PAE Document518 Filed 11/30/21 Page3of8 The Honorable Alison J. Nathan November 30, 2021 Page 3 Cases hold the same. E.g., United States v. Medearis, 380 F.3d 1049, 1057 (8th Cir. 2004) (Rule 16(b)(1)(A) does not require defense to disclose evidence he does “not seek to use . . . in his case-in-chief”); United States v. Moore, 208 F.3d 577, 579 (7th Cir. 2000) (Rule 16(b)(1)(A) does not require defense to disclose evidence used to impeach “the testimony of a witness for the prosecution,” because that is not evidence introduced in a defendant’s “‘case-in- chief”).! As Judge Easterbrook recognized, the government’s contrary argument in this case “sorely misunderstands what it means to offer ‘evidence in chief? (or evidence in one’s ‘case in chief’).” Moore, 208 F.3d at 579. In fact, so obviously wrong is the government’s interpretation of Rule 16 that, when the government offered the same argument in United States v. Moore, Judge Easterbrook concluded that the district court committed a plain error in excluding a letter the defense offered into evidence while cross-examining a prosecution witness during the government’s case-in-chief. Jd. The government is also wrong to suggest that even if Ms. Maxwell did not have to disclose statements used as impeachment while cross-examining a prosecution witness during the government’s case-in-chief, she did have to disclose other exhibits used as impeachment, such as the photograph she offered into evidence while cross-examining Jane. Under Rule 16(b) ‘Nor does Rule 16(b)(1)(A) apply to material a defendant uses to refresh a witness’s recollection while cross-examining her during the government’s case-in-chief. United States v. Gray-Burriss, 791 F.3d 50, 57-58 & n.2 (D.C. Cir. 2015) (using documents to refresh recollection of government’s witnesses not covered by Rule 16); United States v. King, 703 F.2d 119, 126 n.6 (Sth Cir. 1983) (noting that “even though the documents were excluded from evidence” because of defendant’s failure to make a Rule 16 disclosure, “[d]efense counsel was allowed to use the documents to refresh the recollection of witnesses”). DOJ-OGR-00008196