DOJ-OGR-00006561.pdf

--- Page 1 --- The extracted text is as follows: **Header:** * Case 1:20-cr-00330-PAE * Document 441 * Filed 11/12/21 * Page 5 of 12 **Main Text:** it intends to offer at trial ... in the Government's production today or in its previous productions." And, circumnavigating this Court's Order with Magellan-like skill, promised that, as the government "continues to prepare for trial" it will produce any additional co-conspirator statements "in connection with its ongoing obligation to produce Jencks Act material." See, Ex. 1. **I. The Government Failed to Identify Any Purported Co-Conspirator Statements** For a statement to fall within the definition of Fed.R.Evid. 801(d)(2)(E), "a court must find (1) that there was a conspiracy, (2) that its members included the declarant and the party against whom the statement is offered, and (3) that the statement was made both (a) during the course of and (b) in furtherance of the conspiracy." United States v. Tracy, 12 F.3d 1186, 1196 (2d Cir. 1993). These conditions precedent are "[p]reliminary questions concerning ... the admissibility of evidence" as referenced in Fed. R. Evid. 104(a), and must be proven by a preponderance of the evidence. United States v. Daly, 842 F.2d 1380, 1386 (2d Cir. 1988). The Court may consider the coconspirator statements themselves in determining whether the 801(d)(2)(E) prerequisites have been met. However, because "these hearsay statements are presumptively unreliable," United States v. Tellier, 83 F.3d 578, 580 (2d Cir. 1996), there must be independent corroborating evidence of the existence of the conspiracy and the participation therein of the declarant and the defendant. Id. **II. Ongoing Document Dumps Containing Thousands of Statements Do Not Satisfy the Court's Order to Disclose** The government neither objected to Ms. Maxwell's request for disclosure nor the Court's Order requiring disclosure at the same time. See Dkt. 317 at 12, n.1 (citing Dkt. 291 and Dkt. 293). The government's reason for not wanting to disclose the statements was considered and **Footer:** * DOJ-OGR-00006561