DOJ-OGR-00014141.pdf

--- Page 1 --- **Case 1:20-cr-00330-PAE Document 763 Filed 08/10/22 Page 35 of 197** **LCFCmax1** 1. practices are like. It's not clear to me that Special Agent 2. Young will have knowledge about the use of cellphones and 3. availability of geo location data, personal knowledge from that 4. era, unless the question is, did you take an investigative step 5. to hire that data and did it exist or not exist, and that is 6. precisely the kind of question that is improper. 7. Your Honor, the government did not open this door on 8. its direct case, so there is no room for the defense to start 9. eliciting direct testimony on this point. The absence of geo 10. location information is clear in the record from the absence of 11. geo location information in the record. 12. THE COURT: That's right. It sounds like what you're 13. trying to do is have the inference of steps not taken in order 14. to emphasize, argumentatively, the absence of evidence, which 15. you can make those arguments in summation. 16. MR. EVERDELL: I'll be honest with the Court, I truly 17. don't understand the distinction between investigative steps 18. versus absence of evidence, because they are inextricably 19. linked in my mind. I'm trying to walk the line because I do 20. understand the Court's ruling, but if I'm allowed to get into 21. absence of evidence and argue that to the jury, I have to be 22. able to point out in the direct case what they're not seeing, 23. what absence of evidence there is. 24. THE COURT: Why can't you do that? 25. MR. EVERDELL: What I'm trying to do is do it through **SOUTHERN DISTRICT REPORTERS, P.C.** **(212) 805-0300** **DOJ-OGR-00014141**