DOJ-OGR-00005963.pdf

--- Page 1 --- The extracted text is: **Case 1:20-cr-00330-PAE** **Document 398** **Filed 10/29/21** **Page 8 of 52** the Order, however, the government defined the word "disclose" differently. Disclose, as to the actual statements, according to the government, means "produced" at some time in the past or to be produced in the future, perhaps an oral statement during trial. Of course, the Court will tell the parties whether it meant two completely different things when it used the same word, as argued by the government, or whether it intended for the government to disclose the statements it intends to offer as co-conspirator statements. To avoid delay over this issue during trial, Ms. Maxwell suggests that she cannot litigate this issue in advance of trial without knowing what statements are being offered under Federal Rule of Evidence 801(d)(2)(e). What is clear from the government's response is not that it misunderstood the Order, but rather, it continues to disagree with the Order. **B. The Court Has the Authority to Require Disclosure** Second, doubling down on its disagreement with the Court, the government claims "it is aware of no such case" in which a court ordered the identification of anticipated co-conspirator statements prior to trial. While the government may not be "aware" of such cases, they certainly, and abundantly, exist. In United States v. Bocio, 103 F. Supp. 2d 531, 534 (N.D.N.Y. 2000), the court ordered pretrial disclosure of statements of co-conspirators (Government "must disclose to the defendant and make available for inspection, copying, or photographing: any relevant written or recorded statements ..., or copies thereof, within the possession, custody, or control of the government."). In United States v. Jacobs, 650 F. Supp. 2d 160, 171 (D. Conn. 2009), the court ordered co-conspirator statements be produced in advance of trial ("In the case of a co-conspirator who the government plans to call as a witness at trial, that time is now, and the government is directed to produce any relevant statement to defense counsel forthwith.")