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Case 1:20-cr-00330-PAE Document518 Filed 11/30/21 Page6of8 The Honorable Alison J. Nathan November 30, 2021 Page 6 Here, there is no prejudice, and the government did not attempt to identify any. Moreover, any conceivable prejudice can be remedied by giving the government additional time to review the photograph before Ms. Maxwell again offers it into evidence. See, e.g., United States v. Kessler, 926 F.3d 490, 491 (8th Cir. 2019) (concluding that court was correct not to exclude government’s evidence of “the dollar value of the methamphetamine,” despite Rule 16 violation, because the court “provided a one-hour recess that allowed defense counsel to prepare a response”).> The government’s interpretation of Rule 16, if accepted, would violate Ms. Maxwell’s constitutional rights to due process and the confrontation. U.S. Const. amends. V, VI. Compelling Ms. Maxwell to disclose to the prosecution, in advance, evidence she intends to use to impeach government witnesses during the government’s case-in-chief would unconstitutionally force her to aid the government in meeting its burden of proof. U.S. Const. amend. V. See People v. Kilgore, 455 P.3d 746, 751 (Colo. 2020) (compelling the defendant to disclose his intended exhibits, “at a minimum, potentially infringed on [his] right to due process because his compliance with the disclosure order may help the prosecution meet its burden of proof’). And it would compromise her constitutional right to confront the witnesses against her, a right she is free to exercise without previewing her defense for the government. U.S. Const. amend. VI. > Of course, come tomorrow, the government will have had more than twelve hours to review the photograph. DOJ-OGR-00008199