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Case 1:20-cr-00330-AJN Document 148 Filed 02/04/21 Page 17 of 23

For these reasons, we respectfully request that the Court order the government to immediately disclose all favorable evidence (Brady and Giglio material) within its possession and to immediately disclose all such material upon future discovery or receipt, to provide the defense will have ample opportunity to make use of it at trial.

IV. Motion For a Pretrial Evidentiary Proffer or Hearing to Determine Admissibility of Co-Conspirator Declarations

Ms. Maxwell anticipates that the government may offer testimony regarding statements allegedly made by unindicted co-conspirators, including statements of Jeffrey Epstein, who is deceased. Any such testimony would be highly prejudicial to Ms. Maxwell in the context of this case, especially because statements by Mr. Epstein, which would be testimonial in nature, are not subject to cross-examination. See Crawford v. Washington, 541 U.S. 36 (2004). To avoid serious and irreparable prejudice that would result at the time of trial, it is essential that the government demonstrate the admissibility of any co-conspirator declarations at a hearing prior to trial. See United States v. James, 590 F.2d 575 (5th Cir. 1979).

The Second Circuit instructs courts to follow the procedure enunciated in United States v. Geaney, 417 F.2d 1116 (2d Cir. 1969). “Under the Geaney rule, statements proffered as coconspirator statements may be admitted in evidence on a conditional basis, subject to the later submission of the necessary evidence” to establish prerequisites for admission. United States v. Tracy, 12 F.3d 1186, 1199 (2d Cir. 1993). Should the government fail to meet its burden of persuasion and the Court finds that the conditionally admitted co-conspirator statements were not made during or in furtherance of the charged conspiracy, any cautionary instruction would be of doubtful utility to ensure that all jurors would disregard

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