DOJ-OGR-00006541.pdf

Case 1:20-cr-00330-PAE Document 440 Filed 11/12/21 Page 25 of 40 permit this. As the Government has explained, for many of the subjects of the Government's motions, any evidence or argument is irrelevant, inadmissible, lacks a good faith basis, and is highly prejudicial. The Court should preclude the defense from discussing these issues in its opening statement or attempting to offer evidence relating to these issues at trial unless and until the defense makes an offer of proof so that the Court can make evidentiary rulings. See United States v. Randle, 745 F. App'x 422, 424 (2d Cir. 2018) (summary order) ("The making and timing of opening statements can be left constitutionally to the informed discretion of the trial judge." (quoting United States v. Salovitz, 701 F.2d 17, 21 (2d Cir. 1983)) (alteration omitted)); United States v. Ahaiwe, No. 20 Cr. 179 (DLC), 2021 WL 2134922, at *3 (S.D.N.Y. May 26, 2021) ("The Government's motions to preclude defense counsel from making certain statements in its opening statement or in its questioning of witnesses is granted with the following exceptions.") To proceed otherwise would risk an improper defense opening statement or attempts to elicit other improper evidence that could cause a mistrial. A. The Court Should Preclude Evidence and Argument about Investigations of the Defendant A defendant has a "right to call witnesses in order to present a meaningful defense." (Def. Opp. at 28) (quoting United States v. Percoco, 13 F.4th 158, 177 (2d Cir. 2021)). "The right is not, of course, unlimited; the defendant must comply with established rules of procedure and evidence designed to assure both fairness and reliability." Percoco, 13 F.4th at 177 (citation and internal quotation marks omitted). For instance, "[a] federal court may preclude a defendant from presenting a defense when the evidence in support of such a defense would be legally insufficient." 24 DOJ-OGR-00006541