This is one of the judge's recent rulings, as always formatted for text to
speech reading. This time removed case numbers (or whatever) that are
unnecessary for non-legal purposes.

Legal Standards.

�Motions in limine are �designed to narrow the evidentiary issues for trial
and to eliminate unnecessary trial interruptions.�� Graves v. District of
Columbia, (D.D.C. 2011) (quoting Bradley v. Pittsburgh Bd. of Educ., (3d
Cir. 1990)). They are not a vehicle to resolve factual disputes or weigh the
sufficiency of the evidence. Id. �Rather, parties should target their
arguments to demonstrating why certain items or categories of evidence
should (or should not) be introduced at trial, and direct the trial judge to
specific evidence in the record that would favor or disfavor the
introduction of those particular items or categories of evidence.� Id. at 11
(citing United States ex rel. El�Amin v. George Washington Univ. (D.D.C.
2008)). Trial judges retain broad discretion in making evidentiary rulings,
including determining the probative value or prejudicial effect of evidence.
Sprint/United Mgmt. Co. v. Mendelsohn, (2008). Evidence is only admissible
if it is relevant�meaning it �has any tendency to make a fact [of
consequence] more or less probable than it would be without the evidence,�
Fed. R. Evid. 401�and its probative value is not �substantially outweighed
by a danger of . . . unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting cumulative
evidence,� Fed. R. Evid. 403.

II.
Analysis.

A.
Evidence Regarding the Gathering of the Data The first motion presented
involves the data that Mr. Sussmann provided to the FBI. The data was
supplied to Mr. Sussmann by technology executive Rodney Joffe, and was
claimed to support the existence of an internet communications channel
between Donald Trump and Russia�s Alfa Bank. The government has notified the
defense under Federal Rule of Evidence 404(b) that it intends to seek
admission of evidence concerning how that data was gathered. Gov�t Suppl.
Notice at 2 (Mar. 23, 2022). This evidence includes, according to the
government, facts suggesting that the �data was obtained in a manner that
may be considered objectionable.� Id. By that, the government presumably is
referring to an allegation that Mr. Joffe accessed some of the data in
breach of certain cybersecurity-related contracts he or his companies had
with the U.S. government. Indeed, the government has indicated to Mr.
Joffe�s counsel that his conduct with respect to the data remains subject to
criminal investigation by a grand jury. More on that later. The government
contends that evidence about the origins and gathering of the data
constitutes direct proof of the crime charged against Mr. Sussmann�a sole
count of lying to the FBI about whether he was providing the data and
related �white papers� on behalf of any client�because it provides
�important factual context for the defendant�s conduct� and tends to show
the existence of attorney-client relationships between the defendant and
both Mr. Joffe and Hillary Clinton�s 2016 presidential campaign. Id. The
government further argues that, if the Court deems the data-gathering
evidence not to be intrinsic to the charged offense, it is still admissible
under Rule 404(b) as �other act� evidence going the defendant�s motive,
intent, preparation, plan, and absence of mistake or accident. The defense
moves to exclude this evidence, at least to the extent that Mr. Sussmann was
uninvolved in or unaware of the data collection effort. This dispute is
framed by the parties� competing theories of how the data came to be. In
brief, the government contends that the Alfa Bank data was gathered as part
of a concerted effort to collect and disseminate derogatory opposition
research about Donald Trump. Participants in this purported joint
undertaking, according to the government, include the Clinton Campaign; the
Campaign�s General Counsel and then-partner in the Perkins Coie law firm,
Marc Elias; an investigative firm retained by Mr. Elias, Fusion GPS; the
defendant; Mr. Joffe; and several computer researchers working at Mr.
Joffe�s direction. The government has proffered the existence of at least
some circumstantial evidence connecting Mr. Sussmann to certain aspects of
the data gathering effort. See Gov�t Opp�n to Def.�s Mots. in Lim. at 17�18,
ECF No. 70 (promising that testimony will establish that Mr. Sussmann was
aware of the �corporate sources� of the data and assured Researcher-2 that
the data had been lawfully collected); Indictment �� 20, 23 (alleging that
beginning in mid-August, Mr. Sussmann, Mr. Joffe, and Mr. Elias met on two
different occasions and, shortly thereafter, Mr. Joffe emailed the
researchers about the data); id. � 24 (describing billing entries indicating
that Mr. Sussmann helped draft one of the white papers that was provided to
the FBI). The government contends that Mr. Sussmann�s desire to conceal this
joint venture�particularly the Clinton Campaign�s involvement�supplied a
motive for him to misrepresent to Mr. Baker that he was not providing the
data to the FBI on behalf of any client, when he was actually representing
both Mr. Joffe and the Campaign. The defense paints a different picture. As
the Court gleans from various of the defense�s pleadings and arguments, its
case will be that Mr. Joffe obtained and analyzed the relevant data
independently of Mr. Sussmann and the Clinton Campaign; that Mr. Joffe
enlisted the defendant, with whom he a preexisting attorney-client
relationship, for legal advice on how to handle and disseminate the data to
a wider audience; that Mr. Sussmann reasonably believed, based on the
understanding of the data that he gained from Mr. Joffe, that it tended to
support the existence of a communications link between Alfa Bank and Mr.
Trump; that Mr. Sussmann and Mr. Joffe shared the view that bringing the
potential communications channel to the FBI�s attention was important to
protect national security, regardless of any political implications; and
that Mr. Sussmann sought an audience with Mr. Baker for that purpose. The
defense has acknowledged that Mr. Sussmann at least received the data in
connection with his legal representation of Mr. Joffe, see Mot. Hr�g Tr. at
38:6�18, but (as the Court understands) denies that he had an attorney-
client relationship with the Clinton Campaign that covered activities
related to the Alfa Bank data. The jury is entitled to hear both these
narratives. The parties may therefore bring out otherwise admissible trial
evidence supporting their competing theories regarding the gathering and use
of the data. Permissible areas of inquiry include how the data came into
being and who was involved in its collection and analysis, as well as how
Mr. Sussmann came to possess the data, what he did with it, and why. The
basis for admission of the evidence depends on its purpose. To the extent
the evidence shows that Mr. Sussmann�s involvement in the data gathering was
part of legal work for either Mr. Joffe or the Clinton Campaign, it is
�intrinsic� to the charged offense. The D.C. Circuit defines intrinsic
evidence as �that [which] is part of the charged offense,� and �uncharged
acts performed contemporaneously with the charged crime . . . if they
facilitate the commission of the charged crime.� United States v. Bowie,
(D.C. Cir. 2000). Evidence of Mr. Sussmann�s client work is �part of the
charged offense� because in order to prove the alleged lie to the FBI, the
government necessarily must prove that Mr. Sussmann was in fact
representing a client. Otherwise, this evidence may be offered for a proper
404(b) purpose, the most applicable of which is Mr. Sussmann�s purported
motive for concealing the political nature of the Alfa Bank data effort. The
Court will impose certain limitations on the use of this evidence, however.
As the Court previously ruled, unless the defense opens the door for
admission by vouching for the data, the government will not be permitted to
put on extensive evidence about its accuracy. See Data Order at 3�4. The
Court will also provisionally limit the presentation of evidence that the
collection of the data by Mr. Joffe or others was somehow �objectionable.�
The Special Counsel has not proffered sufficient evidence showing that Mr.
Sussmann had concerns that the data was obtained inappropriately, or that he
had any independent knowledge about the data collection beyond whatever he
may have learned from Mr. Joffe through privileged communications. Evidence
of improper data collection by Mr. Joffe or others done without Mr.
Sussmann�s knowledge is, at best, only marginally probative of his supposed
motive to lie to the FBI. United States v. George, 786 F. Supp. 56, 64
(D.D.C. 1992); United States v. Libby, 467 F. Supp. 2d 1, 15�16 (D.D.C.
2006) (evidence of �what others were told . . . will be excluded because it
is simply irrelevant to the defendant�s state of mind�). Moreover, whether
Mr. Joffe, who is not on trial, violated the terms of any of his contracts
with the government�let alone committed a crime�is the type of collateral
issue that risks confusing the jury and distracting from the pertinent
issues in the case. See United States v. Fonseca, (D.C. Cir. 2006)
(affirming exclusion of evidence that would have led to a ��mini-trial� on a
collateral matter�); Wade v. Mantello, (2d Cir. 2003) (holding testimony
supporting theory of third- party culpability properly excluded because
�marginal relevance was outweighed by dangers of juror prejudice and
confusion�).

B.
Emails Between Researchers, Mr. Joffe, Fusion, and the Press Having
established the basic rules of the road for the data-gathering evidence, the
Court turns to the defense�s objections to specific emails discussing the
data that the Special Counsel has indicated he will seek to admit. In
particular, the government seeks to admit emails between Mr. Joffe, two
researchers from the Georgia Institute of Technology (referred to in the
indictment as Researcher-1 and Researcher-2), and another computer
researcher who allegedly compiled the data at issue (referred to as
Originator-1). In these emails, the researchers and Mr. Joffe discuss the
data collection effort and their conclusions about the data. The government
also seeks to admit a set of emails between Fusion GPS employees and members
of the press. Gov�t Mot. in Lim. at 10, ECF No. 61. The Special Counsel
offers two arguments for admission: (1) that the emails are not offered for
their truth and are thus not hearsay; and (2) that the statements in the
emails were made in furtherance of a joint venture between Mr. Sussmann, Mr.
Joffe, and �representatives or agents� of the Clinton Campaign, and are thus
admissible as non-hearsay under Fed. R. Evid. 801(d)(2)(E). Mr. Sussmann
responds generally that (1) the statements are hearsay, as they are offered
for their truth, (2) the Special Counsel has not established the existence
of a joint venture, the necessary predicate to admit the statements as non-
hearsay co-conspirator statements, and (3) the probative value of the
statements at issue are outweighed by the danger of unfair prejudice,
confusion, or delay. �Hearsay is an out-of-court statement offered for the
truth of the matter asserted.� United States v. Thompson, (D.C. Cir. 2002);
Fed. R. Evid. 801(c). An out-of-court statement offered for some other
purpose, such as �elucidating a speaker�s or a listener�s state of mind,� is
not hearsay. United States v. Williams, (D.C. Cir. 2004).

However, a statement that merely gives �context� to another statement may
nonetheless be hearsay, if the context provided by the statement depends on
its truth. See United States v. Stover, (D.C. Cir. 2003); United States v.
DeCologero, (1st Cir. 2008). The Special Counsel argues in the alternative
that the emails may be admitted as co-conspirator statements under Fed. R.
Evid. 801(d)(2)(E) regardless of whether they are offered for their truth.
Federal Rule of Evidence 801(d)(2)(E) provides: �A statement is not hearsay
if . . . the statement is offered against a party and is . . . a statement
by a coconspirator of a party during the course and in furtherance of the
conspiracy.�� See Bourjaily v. United States, (1987) (alteration and
omissions in original).

Note 1.
Statements that demonstrate the reasonableness of a belief, Crockett v.
Abraham, (D.C. Cir. 2002), �establish the course of the investigation,�
United States v. Taylor, (7th Cir. 2009), or constitute a �verbal act,�
United States v. Stover, (D.C. Cir. 2003), are also not hearsay.

The joint venture need not be a criminal one. United States v.
Brockenborrugh, (D.C. Cir. 2009) (�Despite its use of the word
�conspiracy,� Rule 801(d)(2)(E) allows for admission of statements by
individuals acting in furtherance of a lawful joint enterprise.�). And, �as
with all evidence,� any statements admitted into evidence must be relevant
to a �fact of consequence in the case.� Williams, (cleaned up). �Moreover,
such a statement may be excluded, even if relevant, if its probative value
is substantially outweighed by the danger of unfair prejudice.� Id. (citing
Fed. R. Evid. 403). With that background, the Court turns to the emails at
issue. The first batch is comprised of emails exchanged between Mr. Joffe,
Georgia Tech researchers Manos Antonakakis and David Dagon (Researchers 1
and 2), and April Lorenzen, a third computer researcher unaffiliated with
Georgia Tech (referred to as Originator-1) in August and September 2016.
These individuals were not employees of Fusion GPS nor were they directly
associated with the Clinton Campaign or Perkins Coie. None of these emails
were sent or received by Mr. Sussmann. The emails generally reflect the
researchers� hypotheses about the data and the conclusions they believed
could be drawn from it. The second batch of emails are between Fusion GPS
employees and members of the press from mid-to-late October 2016. These
emails appear to relate to Fusion�s attempts to disseminate the Alfa Bank
allegations. Mr. Sussmann did not receive these emails either. The last
email was sent by Mr. Joffe to one of his employees on November 17, 2016.
The Court will first address whether the emails are non-hearsay�i.e.,
whether they are being offered for something other than the truth of the
matter asserted. For any remaining emails, the Court will next address
whether the government can admit the emails as statements of co-conspirators
in a lawful joint venture.

1.
Emails between Researchers and Mr. Joffe.

The government argues that these emails are not offered for the truth of the
matter asserted, but rather to show that the technical issues Mr. Joffe and
the researchers discussed were the same issues Mr. Sussmann discussed with
Mr. Joffe and Mr. Elias. According to the government, the fact that Mr.
Joffe and the researchers corresponded about the data tends to prove that
Mr. Sussmann had an attorney-client relationship with Mr. Joffe on the same
topics. Gov�t Mot. in Lim. at 22, 29; (Apr. 27, 2022). This theory of
relevance falls short. At most, these emails reveal that the Alfa Bank
allegations were assembled and discussed by the researchers and Mr. Joffe.
The emails were not sent or received by Mr. Sussmann nor do they mention
him. On their faces, the emails reveal nothing about Mr. Sussmann�s
attorney-client relationship with Mr. Joffe. �Relevant evidence, Rule 401
tells us, is �evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.�� United States v.
Foster, (D.C. Cir. 1993) (quoting Fed. R. Evid. 401). The fact of
consequence at issue here is whether Mr. Sussmann represented Mr. Joffe in
connection with assembling the data or providing it to the FBI. Emails
between Mr. Joffe and third parties do not tend to make that fact any more
or less probable than it would be without those emails. Accordingly, the
emails are simply not relevant to the government�s stated purpose for
offering them. The government also argues that the mere fact that a written
record of the researchers� concerns exists would provide Mr. Sussmann a
motive to conceal the source of the data from the FBI. Under that theory,
the government argues, the emails are not offered for their truth but simply
to show the written record existed. Mot. Hr�g Tr. at 29:2�12. This theory
fails as well. A written record of concerns would inform Mr. Sussmann�s
motive to conceal only if he knew such a record existed. The Special Counsel
has not established that Mr. Sussmann received these emails or was ever told
about them. As of now, then, the emails are not relevant to his state of
mind. Libby, (evidence of �what others were told . . . will be excluded
because it is simply irrelevant to the defendant�s state of mind�); cf.
United States v. Safavian, (D.D.C. 2006) (admitting certain emails received
by the defendant to show his �state of mind at the time he received them�).
The Court may revisit this determination if the government shows that Mr.
Sussmann at some point received these emails or became aware of their
contents. Finally, this first batch of emails is unlikely to be admissible
for an independent reason: the emails reflect the researchers� views on the
accuracy of the data and how it was collected. The Court has already ruled
that information about the accuracy of the data will not be admissible
unless Mr. Sussmann opens the door. See Data Order at 2. Most of the emails
the government has proffered so far relate to that exact issue. E.g., Gov�t
Mot. in Lim. at 20 (email from Originator-1) (�I could fill out a sales form
on two websites, faking the other company�s email address in each form, and
cause them to communicate with each other in DNS.�); id. at 25 (email from
Researcher-1) (�How do we plan to defend against the criticism that this is
not spoofed UDP traffic we are observing?�); id. at 27 (email from
Originator-1) (�I firmly believe that [Russian Bank-1/Healthcare Company-
1]/Trump are communicating with that server . . . as an artifact of the
processing.�). The Court has already ruled that these kinds of technical
issues and conclusions about the data are not relevant unless further
evidence at trial establishes that Mr. Sussmann knew about them. To the
extent the government seeks to introduce other emails from the researchers
that do not concern these topics, the Court will reserve judgment as to
whether any particular email contains inadmissible hearsay, is relevant, or
is more probative than unfairly prejudicial.

2.
Fusion Emails with the Press.

The second batch of emails the government seeks to introduce are exchanges
between Fusion GPS employees and various reporters dating from mid-late
October 2016. These emails show that (1) Fusion employees urged reporters to
write stories on the Trump-Alfa Bank connection, and (2) when presented with
questions about the data, a Fusion employee directed a reporter to David
Dagon (Researcher-2) for a response. Gov�t Mot. in Lim. at 30�31. These
emails are admissible as non-hearsay because the Special Counsel does not
appear to be offering them for their truth, but rather to demonstrate that
Fusion GPS and the researchers shared the ultimate goal of disseminating the
Alfa Bank allegations to the press. The email referencing David Dagon also
shows that at least one employee of Fusion was familiar with Dagon and
suggested a member of the press contact him. Accordingly, the Court will
provisionally hold that these emails can be admitted, subject to proper
foundation and a limiting instruction that they are not to be considered for
the truth of the matter asserted. The Court will reserve judgment as to the
admissibility of any additional email it has not yet seen.

3.
Emails from Mr. Joffe.

The Special Counsel has also identified three emails from Mr. Joffe that it
seeks to introduce, either as non-hearsay statements or as co-conspirator
statements.

The first one was sent from Mr. Joffe to the researchers informing them
that �the task is indeed broad� and �the VIPs would be happy� if they could
find anything linking Trump to Russia. Gov�t Mot. in Lim. at 22. The Court
finds that this email is being offered for the truth of the matter asserted
and therefore may be admitted only as a non-hearsay co-conspirator statement
or under a hearsay exception. The email reflects when and why Mr. Joffe
tasked the researchers with the data collection project�i.e., that the
�VIPs� were �looking for a true story that could be used as the basis for
closer examination.� Id. The government argues this statement �tend[s] to
prove the existence of the attorney-client relationship about which [Mr.
Sussmann] lied.� Id. at 23. However, this statement only suggests a
connection between Mr. Joffe, the Clinton Campaign, and Fusion if his
statement is true. Mr. Joffe�s relationship is demonstrated by the fact that
the �VIPs� were looking for such a story and �would be happy� if one
emerged. If that were not the case, and Mr. Joffe was instead insinuating
that he had a closer relationship to the �VIPs� than he really did, then
this email would not be evidence of Mr. Joffe�s relationship with anyone.
This email could therefore only be admissible as a co-conspirator statement,
which the Court addresses below, or under an exception the government has
not yet raised. The second email is from Mr. Joffe to the researchers
soliciting their views on the white paper he had been drafting with Mr.
Sussmann. Id. at 25. In this email, Mr. Joffe asks the researchers how they
thought a �security expert��rather than an expert on DNS data�would view the
white paper. Indictment � 24(e). This email is not hearsay because nothing
in the email is offered for the truth of the matter asserted�the email is a
combination of a task (�please read�) and a question (�Is this plausible as
an explanation?�). Those statements are not assertions and thus cannot be
hearsay. See Mitchell v. DCX, Inc., (D.D.C. 2003) (�directives,� taskings,
commands, or other �verbal acts� are generally not hearsay because they do
not constitute assertions); United States v. Oguns, (2d Cir. 1990) (�An
inquiry is not an �assertion,� and accordingly is not and cannot be a
hearsay statement.� (citing Inc. Publ�g Corp. v. Manhattan Magazine, Inc.,
(S.D.N.Y. 1985))). The email is thus admissible with proper foundation. The
third email is from Mr. Joffe to a colleague after the November 2016
election expressing that he was offered a top cybersecurity job �by the
Democrats when it looked like they�d win.� Indictment � 15. This email is
inadmissible hearsay, as it is offered for the truth of the matter asserted
and does not fit into any hearsay exception. The email would evince Mr.
Joffe�s affinity for the campaign as well as his motive to disseminate the
allegations, but only if he had in fact been offered a �top cybersecurity
job� by the Clinton Campaign.

Note 2.
This email would also not fit within the definition of a co-conspirator
statement, even if one had been proven. It makes no reference to the Alfa
Bank allegations, does nothing to further the purported goal of
disseminating those allegations, and post-dates the joint venture.

C.
Co-Conspirator Statements The government argues in the alternative that all
the above emails, and other similar ones, may be admitted as co-conspirator
statements under Fed. R. Evid. regardless of whether they are offered for
their truth. To recap, the Federal Rules provide that �a statement . . . is
not hearsay� if �the statement is offered against a party and . . . was made
by the party�s coconspirator during and in furtherance of the conspiracy.�
Fed. R. Evid. 801(d)(2)(E); see Bourjaily. The joint venture need not be
criminal in nature. Brockenborrugh.

Before admitting a statement under this provision, the Court must determine
the existence of a joint venture by a preponderance of the evidence. This
finding must be based, �at least partially, on some independent evidence of
the conspiracy� beyond the hearsay statement. United States v. Apodaca,
(D.D.C. 2017). The Court must also find that the defendant and the declarant
�participated in a single conspiracy and that the statement was made during
and in furtherance of that conspiracy.� White. �Thus, the ultimate
admissibility determination must rest both on finding that the challenged
co-conspirator statement is in furtherance of the conspiracy and, at least
partially, on some independent evidence of the conspiracy.� Apodaca. The
government submits that Mr. Joffe, Mr. Sussmann, and the Clinton Campaign
(or its agents) were �acting in concert toward a common goal��i.e.,
�assembling and disseminating the [Alfa Bank] allegations and other
derogatory information about Trump to the media and the U.S. government.�
Gov�t Mot. in Lim. at 14. It further argues the Georgia Tech researchers,
employees of various internet companies, and Fusion GPS were part of this
joint venture. Id. at 19, 32. The Court will exercise its discretion not to
engage in the kind of extensive evidentiary analysis that would be required
to find that such a joint venture existed, and who may have joined it, in
order to admit these emails under Rule 801(d)(2)(E). While the Rule permits
introduction of co-conspirator statements on the basis advanced by the
Special Counsel, there are a number of considerations that counsel against
doing so here. For starters, Mr. Sussmann is not charged with a conspiracy.
Granted, the rule does permit the introduction of co-conspirator �even if
the defendant is not formally charged with any conspiracy in the
indictment.� Safavian, (citing United States v. Russo, (2d Cir. 2002)). But
when the relevant conspiracy is uncharged, extensive presentation of
evidence about that conspiracy is likely to confuse the jury and distract
from the issues at hand. See id. (�Statements from an uncharged conspiracy
may be excluded because they are remote or unrelated to the charges in the
indictment, or if their admission would confuse or mislead the jury�). The
value of engaging in a separate conspiracy determination is also lessened by
the fact that the Special Counsel seeks to introduce these co-conspirator
statements �not with respect to the specific crime[] for which Mr.
[Sussmann] has been indicted,� but with respect to an uncharged and lawful
joint venture. Safavian. That is, the emails are generally being offered not
as direct evidence that Mr. Sussmann lied to the FBI, but for the ancillary
reason that, if the data did originate in this �politically-laden way,� and
Mr. Sussmann�s clients were involved, Mr. Sussmann would have had a motive
to conceal such a project from the FBI. Gov�t Reply Re: Mots. in Lim. at 4,
ECF No. 94. Moreover, while the Special Counsel has proffered some evidence
of a collective effort to disseminate the purported link between Trump and
Alfa Bank to the press and others, the contours of this venture and its
participants are not entirely obvious. The Special Counsel is correct that
co-conspirators need not know �all the details of the plan or even possess
the same motives.� Id. at 6. But, co-conspirators must have at least �shared
a common goal.� Def.�s Opp�n at 19, ECF No. 68 (citing Brockenborrugh. The
Court is particularly skeptical that the researchers�who were not employed
by Mr. Joffe, Fusion GPS, or the Clinton Campaign, and most of whom never
communicated with Mr. Sussmann�shared in this common goal. While it appears
undisputed that Mr. Joffe tasked the researchers with compiling the data,
the extent to which they knew the audience or purpose of the project remains
unclear. E.g., Gov�t Mot. in Lim. at 26 (researcher did not know the
audience for the white paper). Indeed, the Special Counsel himself at times
omits the researchers from the alleged joint venture. See id. at 19 (the
evidence establishes �that the defendant and Tech Executive-1 worked in
concert with each other and with agents of the Clinton Campaign to research
and disseminate the [Alfa Bank] allegations�) (emphasis added).
Additionally, some evidence suggests that Fusion GPS employees had no
connection to the gathering or compilation of the Alfa Bank data, even if
they may have communicated with the press about it later. See Ex. A to Gov�t
Reply Re: Mot. to Compel at 53, ECF No. 99 (Fusion email stating �the DNS
stuff? not us at all�). Where exactly Mr. Sussmann fits into the enterprise
is similarly murky at this stage. Given these present ambiguities, deciding
whether a particular statement falls within this rule would require a
finding during trial that this broader uncharged conspiracy existed, and
that both Mr. Sussmann and the author of any particular email were members
of it. It would then require an individualized determination of whether �the
specific statements contained within the proffered e-mails were made in
furtherance of that conspiracy.� Safavian, 435 F. Supp. 2d at 48. Because no
conspiracy is charged in the indictment, this undertaking would essentially
amount to a second trial on a non-crime conducted largely for the purpose of
admitting �other acts� evidence of Mr. Sussmann�s motive rather than his
commission of the singular and narrow crime with which he has been charged.
This sort of particularized evidentiary analysis is especially unwarranted
given that the Court has already ruled on the admissibility of many of the
emails on other grounds. Whatever few emails remain that the Court has not
yet seen are likely to be either irrelevant or redundant of other admissible
evidence.

To the latter point, the government has indicated that it intends to call
one or both of the Georgia Tech researchers at trial. Either of them could
testify to their role in assembling the data, how they came to be tasked
with the project, and whether they believed the research was done for the
Clinton Campaign or some other purpose. Accordingly, the Court will
�exercise[] its discretion� not �to undertake this lengthy journey� for the
sake of a few �e-mails that contain either redundant information or
information that could be testified to� by other witnesses. Safavian. To sum
up through this point, the government may attempt to connect the dots
between the various participants in the collection and use of the Alfa Bank
data. Those connections provide context to the lone charge and are
generally relevant either as intrinsic evidence of the veracity of Mr.
Sussmann�s alleged statement to Mr. Baker, or as Rule 404(b) �other acts�
evidence concerning his purported motive to conceal his client relationships
from the FBI. But as it stands now, the government must steer clear of
evidence regarding the accuracy of the data, which the defense does not plan
to place at issue, and whether Mr. Joffe�s role in the collection effort was
somehow �objectionable� or illegal. Nor will the Court conduct a time-
consuming and largely unnecessary mini-trial to determine the existence and
scope of an uncharged conspiracy to develop and disseminate the Alfa Bank
data. The Court is confident the government can effectively pursue its case
without the marginal information such an inquiry might yield about Mr.
Sussmann�s motives and client relationships.

Note 3.
Of course, if the Special Counsel seeks to admit other, relevant emails for
a non-hearsay purpose, the Court will consider that during trial. The Court
may also be better equipped to address any objections under Rule 403 at that
time. Old Chief v. United States, (1997) (�The probative worth of any
particular bit of evidence is obviously affected by the scarcity or
abundance of other evidence on the same point.� (quoting 22 C. Wright & K.
Graham, Federal Practice and Procedure.

D.
Bill Priestap and Trisha Anderson�s Notes Moving to the next issue, the
defense seeks to exclude notes taken by two of Mr. Baker�s deputies sometime
after his meeting with Mr. Sussmann. The Special Counsel argues the notes
themselves can come in under two hearsay exceptions: either as prior
consistent statements of Mr. Baker, Fed R. Evid. 801(d)(1)(B), or as
recorded past recollections of Mr. Preistap and Ms. Anderson, Fed. R. Evid.
803(5). Review of those rules, however, makes it clear that whether the
notes may be read into evidence under either exception depends both on
whether Mr. Baker�s credibility is attacked and on Mr. Priestap and Ms.
Anderson�s testimony. Accordingly, the Court will lay out the steps needed
to admit the notes, but will reserve judgment on whether such foundation has
been laid until trial. Beginning with Mr. Baker�s past recollection
recorded. Federal Rule of Evidence 801(d)(1)(B) provides that a statement is
not hearsay if, �the declarant� (here, Mr. Baker) �testifies and is subject
to cross-examination about a prior statement, and the statement . . . is
consistent with the declarant�s testimony and is offered: (i) to rebut an
express or implied charge that the declarant recently fabricated it or acted
from a recent improper influence or motive in so testifying; or (ii) to
rehabilitate the declarant�s credibility as a witness when attacked on
another ground.� Accordingly, the statement cannot be admitted to bolster
Mr. Baker�s credibility before it is attacked. If Mr. Baker�s memory is
challenged on cross examination, his prior consistent statement would be
admissible to bolster his testimony. But the notes are not Mr. Baker�s, so
he cannot testify to their contents. The Rule is clear that a past recorded
recollection may be admitted if the record �was made or adopted
by the witness when the matter was fresh in the witness�s memory.� (emphasis
added). There is no evidence that Mr. Baker �made or adopted� these notes.
The notes therefore do not meet the definition of a recorded recollection of
Mr. Baker. Accordingly, the government may only introduce the statements
through Mr. Priestap�s or Ms. Anderson�s live testimony about their
respective notes. See United States v. Montague, (D.C. Cir. 1992) (holding
that �Rule 801(d)(1)(B) does not bar introduction of the prior consistent
statement through a witness other than the declarant,� and a third-party
officer presenting the prior statement testified at trial); United States v.
Hebeka, (�Rule 801 can be met even when a third party testifies as to
someone else�s prior statement,� and �both witnesses were subject to cross
examination concerning their memory of past events.�). The evidentiary
analysis is the same for either of the note takers. Taking Ms. Anderson as
an example, her notes are admissible only if she testifies that the
conversation is something she �once knew about but now cannot recall well
enough to testify fully and accurately,� her testimony establishes that the
notes were made while the conversation was fresh in her mind, and the notes
accurately reflect her knowledge. If Ms. Anderson is able to testify fully
and accurately about her conversation with Mr. Baker, the notes would no
longer be needed, and so would no longer be admissible under Rule 803(5).

Note 4.
This strikes the Court as no sure thing given the recent revelation of a
text message apparently sent by Mr. Sussmann to Mr. Baker the day before
their meeting indicating that he was not attending the meeting on behalf of
a client. See Gov�t Mot. in Lim. at 2.

In addition, if the government is unable to establish the foundation the
Rule requires, the notes likewise cannot be admitted. A final note: Even if
the notes satisfy the standard for a past recollection recorded, the notes
themselves likely would not come in. So long as they are offered by the
government as rehabilitation evidence�as the Special Counsel suggests it
might�their contents may only be read into evidence, not �received as an
exhibit� for the jury to view. Fed. R. Evid. 803(5) (allowing past
recollections to be �received as an exhibit only if offered by an adverse
party��in this case Mr. Sussmann (emphasis added)).

E.
The CIA Meeting Next up, the government seeks to introduce statements Mr.
Sussmann made during a meeting with the CIA in February 2017 under Fed. R.
Evid. 404(b). In particular, the government alleges that when Mr. Sussmann
provided an additional set of allegations about the candidate Trump�s ties
to Russia to the CIA, he said he was �not representing a particular client.�
Indictment � 42(a). The government also alleges Mr. Sussmann made an
additional false statement during that meeting�that he had previously
brought �similar, �but unrelated�� information to the FBI. Gov�t Suppl.
Notice at 2. Specifically, Mr. Sussmann allegedly provided to the CIA an
updated version of the Alfa Bank data, as well as an additional set of
allegations about Russian-made phones that were used on Trump networks (the
�YotaPhone allegations�). The Special Counsel claims Mr. Sussmann�s
description of this second set of allegations as �unrelated� to the
information he brought to the FBI was misleading because the two sets of
allegations were, in fact, related. The defense objects to the introduction
of this second statement, and submits that the Special Counsel should not be
permitted to argue this additional statement was false. The government
contends both statements are admissible under Rule 404(b) to show Mr.
Sussmann�s motive, plan, and absence of mistake or accident. The Court has
already ruled from the bench that both statements are admissible, assuming
the government lays a proper foundation. Whether Mr. Sussmann�s description
of the YotaPhone allegations as �unrelated� to the Alfa Bank allegations was
actually misleading can be confronted on cross examination. However, the
Court will not permit this line of inquiry to lead to additional technical
testimony about the YotaPhone allegations or their accuracy. Discussions
amongst CIA employees about the data, and any conclusions the CIA may have
drawn about the accuracy of the data after the meeting had ended, are not
relevant to Mr. Sussmann�s earlier statement to the FBI. Therefore, the same
parameters the Court has set for the DNS data will apply to the accuracy and
gathering of the YotaPhone data as well. F.
Whether the Special Counsel Must Immunize Mr. Joffe As noted previously, the
final motion before the Court concerns Mr. Joffe�s availability as a trial
witness. Mr. Joffe is reportedly willing to be a defense witness but has
indicated that, if called to testify, he would invoke his rights under the
Fifth Amendment. Mr. Sussmann maintains the Special Counsel �has made it
impossible for [him] to call Mr. Joffe as an exculpatory witness� by
informing Mr. Joffe�s lawyer that Mr. Joffe remains a �subject� of the
Special Counsel�s investigation, even though nearly six years have passed
since the relevant events took place. Def.�s Mot. Re: Immunity at 1, ECF No.
59. Mr. Sussmann argues that the Special Counsel�s �threat[]� of criminal
prosecution long past the running of any applicable statute of limitations
amounts to prosecutorial misconduct. Id. at 5. On that basis, he urges the
Court to order the Special Counsel to extend use immunity to Mr. Joffe or,
if he refuses to do so, to dismiss the indictment based on a violation of
Mr. Sussmann�s constitutional right to a fair trial. For the reasons
explained below, the Court will deny this request. �[P]rosecutorial . . .
actions aimed at discouraging defense witnesses from testifying ha[ve] been
deemed to deprive the criminal defendant of his Sixth Amendment compulsory
process right.� United States v. Davis, (D.C. Cir. 1992); see also United
States v. Simmons, (D.C. Cir. 1982) (�The right of a defendant to establish
a defense by presenting his own witnesses is a fundamental element of due
process of law.� (citing Washington v. Texas, (1979)). In United States v.
Smith, (D.C. Cir. 1973), for example, the D.C. Circuit reversed a judgment
of conviction when the prosecutor improperly threatened a key defense
witness the night before his scheduled testimony. Id. at 978�79; see also
United States v. Simmons, (D.C. Cir. 1982) (stating that �the action of the
United States Attorney [in Smith] was completely uncalled-for and
constituted an improper threat to deprive the defendant of a witness�);
United States v. Blackwell, (D.C. Cir. 1982) (noting it would have been
reversible error for the prosecutor to warn potential witness that if she
testified, a gun charge that was dropped could be reinstated against her).
However, absent the type of �extraordinary circumstances� described above,
the Court has no authority to order the government to grant a witness
immunity. United States v. Lugg, (D.C. Cir. 1989); see also United States v.
Heldt, (D.C. Cir. 1981) (�Generally, a trial court has no authority, in the
absence of a request by the government, to provide use immunity for a
defense witness.�); United States v. Ebbers, (2d Cir. 2006) (to obtain
relief, a �defendant must show that the government has used immunity in a
discriminatory way, has forced a potential witness to invoke the Fifth
Amendment through �overreaching,� or has deliberately denied �immunity for
the purpose of withholding exculpatory evidence and gaining a tactical
advantage through such manipulation�� (citations omitted)). No such
extraordinary circumstances are present here. Unlike the situation in Smith,
or that noted in Blackwell, the Special Counsel�s Office has not contacted
Mr. Joffe directly to attempt to dissuade him from testifying. Nor has the
defense offered evidence that the Special Counsel�s refusal to grant Mr.
Joffe immunity is unmoored from any legitimate law enforcement purpose. See
Ebbers, 458 F.3d at 119 (affirming denial of defendant�s request because the
government�s immunity decisions were �consistent with legitimate law
enforcement concerns�). At oral argument, the Special Counsel pointed to at
least one hypothetically relevant criminal statute with a seven-year statute
of limitations. Mot. Hr�g Tr. at 19:9�13; see 18 U.S.C. � 1031. Accordingly,
the Special Counsel�s continued representation that Mr. Joffe is a subject
of its investigation, rather than simply a witness, does not amount to
prosecutorial misconduct on this record. The Court therefore has no basis to
order the Special Counsel to extend use immunity to Mr. Joffe.

III.
Conclusion.

For the foregoing reasons, it is hereby ORDERED that Defendant�s Motion to
Exclude Testimony or Evidence Pertaining to Former FBI Assistant Director
Bill Priestap�s and Deputy General Counsel Trisha Anderson�s Notes is
DENIED.

Note 5.
The Court notes that its limitation on the presentation of evidence
concerning the propriety of Mr. Joffe�s conduct in relation to the Alfa Bank
data�which is the Special Counsel�s stated basis for his �subject�
status�could affect Mr. Joffe�s decision to invoke the Fifth Amendment.

It is further ORDERED that Defendant�s Motion to Dismiss Case if the Special
Counsel Does Not Immunize Rodney Joffe is DENIED.

It is further ORDERED that Special Counsel�s Motion in Limine is GRANTED in
part and DENIED in part.

It is further ORDERED that Defendant�s Motion to Preclude the Special
Counsel from Presenting Evidence or Argument Regarding Matters Subject to
the Attorney-Client Privilege is GRANTED in part and DENIED in part, as
explained on the record on April 27, 2022.

SO ORDERED, DAMMIT!!!