Document 3220

Case#: 2020-cr-00080-PAE Document#: 3220 Filed#: 08/18/2021 Page#: 3 of 4 Honorable Alison J. Nathan August 18, 2021 Page 3 witness statements in Jencks Act material and a proposed exhibit list seven weeks before trial— before motions in limine are due, and earlier than is typical in this district even in complex cases. Finally, given the nature of the conspiracy, the defendant is likely already aware of the identities of persons who could be considered to be co-conspirators. See United States v. Ray, No. 20 Cr. 110 (LJL), 2021 WL 3168250, at *5 (S.D.N.Y. July 27, 2021) (“This is not a case where a defendant is likely to be surprised by the identity of co-conspirators, whom he may never have met.”) (internal quotation marks and alterations omitted)). By contrast, requiring the Government to identify a complete list of co-conspirators risks “harm to the Government from restricting its proof at trial.” (Dkt. No. 317 at 11 (citing United States v. Rajaratnam, No. 09 Cr. 1184 (RJH), 2010 WL 2788168, at *1 (S.D.N.Y. Jul. 13, 2010)). Ordering the Government to provide a bill of particulars containing an exhaustive list of the defendant’s uncharged co-conspirators when Jencks Act material is produced would require the Government to commit to a particular view of those co-conspirators and provide that preview of the Government’s case to the defense seven weeks before trial. See Rajaratnam, 2010 WL 2788168, at *1 (“[A] bill of particulars confines the government’s evidence at trial to the particulars furnished.”) (internal quotation marks omitted)). That is far more than is required by Rule 7(f). A defendant is “not entitled to a bill of particulars setting forth the ‘whens,’ ‘wheres,’ and ‘with whoms’ regarding a conspiracy.” Ray, 2021 WL 3168250, at *6 (alteration and internal quotation marks omitted) (collecting cases).² ² The cases the defendant cites are inapposite. (Dkt. No. 291 at 11). See United States v. Bin Laden, 92 F. Supp. 2d 225, 241 (S.D.N.Y. 2000) (ordering the Government to identify alleged co- conspirators in a case that involved “at least 20” co-conspirators, many of whom used “several aliases and/or code names to conceal their identities,” so it was difficult for defense counsel to “decipher the identities of alleged co-conspirators”); United States v. Pinto-Thomaz, 352 F. Supp. 3d 287, 303 (S.D.N.Y. 2018) (ordering the Government to confirm its representation that there DOJ-OGR-00005003 --- PAGE BREAK --- Case#: 2020cr00083(PAE) Document#: 3220 Filed#: 08/18/2021 Page#: 4 of 4 Honorable Alison J. Nathan August 18, 2021 Page 4 Insofar as the defendant claims that identification of uncharged co-conspirators is necessary for her to interpose objections to the admissibility of co-conspirator statements (Dkt. No. 291 at 10-11), such an argument "misunderstands the hearsay exception for the statements of co-conspirators." Murgio, 209 F. Supp. 3d at 722. The hearsay exception is "rooted in agency law and is not constrained by the text of an indictment." Id. Accordingly, a co-conspirator statement may be admissible even if the conspiracy is not one charged in the indictment. And if the Government is not required to charge a conspiracy in the indictment in order to introduce statements by the defendant's co-conspirators in that conspiracy, it surely cannot be required to provide a bill of particulars as to a conspiracy charged in the indictment for that same purpose. See id. at 723. In sum, the Government respectfully submits that the Court should not require the Government to provide an exhaustive list of co-conspirators, whether in a bill of particulars or otherwise. Respectfully submitted, AUDREY STRAUSS United States Attorney By: /s/ Alison Moe / Maurene Comey / Lara Pomerantz / Andrew Rohrbach Assistant United States Attorneys Southern District of New York Tel: (212) 637-2225 Cc: All counsel of record (by ECF) were only two co-conspirators or identify any others, which would "meaningfully alter the nature of the charges"); United States v. Akhavan, No. 20 Cr. 188, 2020 WL 2555333, at *2 (S.D.N.Y. May 20, 2020) (ordering the Government to identify alleged co-conspirators who "represented several distinct organizations" over three years, "creat[ing] the possibility that different co-conspirators may have been involved at different times," presenting a high risk of surprise). DOJ-OGR-00005004