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Case 1:20-cr-00330-PAE Document 382 Filed 10/29/21 Page 51 of 69

612-13; Lindsey, 769 F.2d at 1042. Accordingly, this evidence does not impermissibly question the government’s motives and should not be precluded.

V. A PRE-TRIAL BAN ON CHALLENGES TO THE CREDIBILITY OF NON-TESTIFYING WITNESSES IS UNSUPPORTED LEGALLY OR FACTUALLY

The government again refrains from telling the Court exactly what evidence it expects at trial, yet asks the defense to preview its possible cross-examination or defense-case evidence, in order both to circumvent the Rules of Criminal Procedure's guidelines and this Court's orders as to when the defense must disclose certain evidence. What's more, the government gives only summary suggestions of what the evidence "might" be and then asks the Court to rule definitively that the defense is precluded from challenging that evidence via cross-examination or otherwise. Because this Court cannot rule on the admissibility of impeachment evidence of a non-testifying witness unless and until the government actually elicits testimony concerning such a witness, this motion should be denied or deferred until the appropriate time at trial.

The government does a poor job of previewing exactly what statements it anticipates offering from others related to [REDACTED]. It says that "other witnesses are expected to testify about the activities" of those two non-testifying witnesses, "including [unspecified] statements by them," which statements according to the government "will not include any statements ... offered for the truth of the matter asserted or under one of the other exceptions listed under Rule 806." Mot. at 37-38. The government then gives two non-exclusive examples²⁶ but fails to elucidate what exactly the pertinent statements will be, to wit:

²⁶ The government does not give any examples pertaining to [REDACTED] and therefore it is wholly unclear what statements the government intends to elicit about her or for what purpose. See Mot. at 37-38.

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