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Case 1:20-cr-00330-PAE Document 385 Filed 10/29/21 Page 7 of 12

ARGUMENT

I. By Failing to Comply with the Rule 404(b) Notice Requirement, the Government Has Waived the Admission of Any Evidence Pursuant to the Rule

Under the version of Rule 404(b) in effect for this trial, the Government was required to specifically "identify" any evidence it intends to offer under the Rule, to "articulate...the permitted purpose for which" the identified evidence will be offered, and to state the "reasoning that supports the purpose." The Government did not timely comply with these requirements and should therefore be precluded from offering any evidence under Rule 404(b).

To be sure, the Rule 404(b) Letter did "identify" [REDACTED]

[REDACTED] But even though the Government claimed [REDACTED] may be admissible "in the alternative, pursuant to Rule 404(b)," there is nothing in the Letter which states the permitted purpose for which they might be offered, nor the "reasoning that supports that purpose." Ms. Maxwell is unable to guess which of the laundry list of potential purposes contained in Rule 404(b) might serve as the grounds, and she certainly is not able to guess the Government's "reasoning." Without the required notice, both defense counsel and the Court cannot undertake the required analysis to determine whether the evidence is being offered for a proper non-propensity purpose, is relevant to a disputed issue, can satisfy a Rule 403 analysis, or needs a limiting instruction. United States v. Bui, 859 F. App'x 610 (2d Cir. 2021) (summary order) (quoting United States v. Brand, 467 F.3d 179, 196 (2d Cir. 2006)).

The Government likewise did "identify" [REDACTED] as a potential witness and offered two, non-exclusive potential topics of her testimony. The Government advised that she will testify about, "among other things, [i] certain [unspecified] documentary evidence relating to the

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