DOJ-OGR-00006550.pdf

Case 1:20-cr-00330-PAE Document 440 Filed 11/12/21 Page 34 of 40 D. The Government Should Preclude Testimony from Case Agents About Irrelevant Matters The defense claims it needs to call case agents to talk about investigative steps, but fails to identify any question about an investigative step that would yield relevant information. The defense does not identify a single relevant topic in their brief. (Def. Opp. at 40-41). They have made clear, however, that they intend to put before the jury numerous irrelevant topics: (1) the thoroughness of the Government's investigation, untethered from any other defense theory (id. at 41); (2) the scope and timeline of the Florida and New York investigations (id. at 40 (discussing "when those investigations began and ended")); see United States v. Duncan, No. 18 Cr. 289 (SHS), 2019 WL 2210663, at *3 (S.D.N.Y. May 22, 2019) (concluding that the length of the investigation is irrelevant); and (3) the charging decisions of those investigations (id. at 39 (stating that a special agent "had first-hand knowledge that [the defendant] was not charged in the proposed SDFL indictment because she presented the indictment to the grand jury."). The defense has also remained entirely silent as to whether they intend to call the case agents to testify as "summary witnesses . . . to place before the jury sweeping conclusions about the Florida Investigations or this one." (Gov't Mot. at 33). The Government's position is simply that, before the defense calls the case agents and "explore[s]" the "scope and progress of the investigations" (Def. Opp. at 41), the defense should have to identify for the Court the evidence relevant to the defendant's guilt or innocence that they plan to elicit. Moreover, the defense should be precluded from previewing in their opening statement any argument or evidence along these lines, unless and until they make an offer of proof and seek a ruling from the Court. 33 DOJ-OGR-00006550