DOJ-OGR-00005966.pdf

--- Page 1 --- **Document Header** * Case Number: 1:20-cr-00330-PAE * Document Number: 398 * Filed Date: 10/29/21 * Page Number: 11 of 52 **Page Header** * Page Number: 11 of 52 **Document Body** * **D. There are Substantial Issues with the Government's Anticipated Position** + 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). A cursory review of the discovery produced related to one purported co-conspirator demonstrates the folly of proceeding as the government persists. * The government failed to follow the Court's Order and fails to explain why it did not disclose the statements as ordered. Accordingly, the Court should prohibit introduction of any alleged co-conspirator statements at trial. **Footer** * DOJ-OGR-00005966