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Case 1:20-cr-00330-AJN Document 134 Filed 02/04/21 Page 21 of 23

B. At A Minimum, This Court Should Order A Hearing At Which Maxwell May Inquire Into The Circumstances Surrounding The Government’s Misrepresentations To [REDACTED]

If the Court is disinclined to grant relief on the present record, then at a minimum it should hold an evidentiary hearing to probe the government’s misstatements to [REDACTED] and the extent to which the prosecutor’s office had, in fact, coordinated with [REDACTED] prior to the issuance of the grand jury subpoena. These factual issues go directly to whether the predicate finding for [REDACTED] ruling—namely, that no Chemical Bank collusion had occurred—was mistaken. See, e.g., United States v. Paredes-Cordova, No. S1 03 CR. 987DAB, 2009 WL 1585776, at *1 (S.D.N.Y. June 8, 2009) (“An evidentiary hearing is normally required to address motions to suppress where a factual issue is in dispute.”).

An evidentiary hearing is warranted for an additional reason as well: If it turns out that the prosecutor knew (or was reckless in not knowing) that [REDACTED] had previously approached his office, both before and after the Maxwell depositions, in an effort to stir up a criminal prosecution and dangled the deposition transcripts as a carrot, then suppression would be warranted on that basis alone. Cf. Franks v. Delaware, 438 U.S. 154, 155-56 (1978); United States v. Rajaratnam, 719 F.3d 139, 146 (2d Cir. 2013) (“Franks instructs a district court to hold a hearing to determine whether the alleged misstatements or omissions in the warrant or wiretap application were made intentionally or with reckless disregard for the truth and, if so, whether any such misstatements or omissions were material.”).

CONCLUSION

For these reasons, this Court should: (1) suppress all evidence the government obtained from [REDACTED] and any other evidence derived therefrom; or (2) suppress the April and July 2016 depositions and all evidence derived therefrom; and (3) dismiss Counts Five and Six.

Maxwell requests an evidentiary hearing on this Motion.

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