PAMELA PEPPER, District Judge.
On October 14, 2019—the day before the final status conference, six days before trial, and a month after the September 13, 2019 deadline for filing motions in limine—the defendant filed this motion, asking the court to admit portions of the defendant's post-arrest statements under Fed. R. Evid. 106 ("Remainder of or Related Writings or Recorded Statements), and to exclude one excerpt as irrelevant, inflammatory and unduly prejudicial. Dkt. No. 330. The government responded, it did not object to some of the defendant's proposals but argued that others were hearsay as to the defendant. Dkt. No. 336. In its reply, the defense asked to admit two additional excerpts of the second interview. Dkt. No. 352. The government responded that given the court's exclusion of many of its proposed excerpts of the recorded conversations among Steve, Mike and the defendant, it now objected to the admission of any of the defendant's post-arrest statements presented if offered by the defense. Dkt. No. 355 at 2. The government argued that where the defendant sought to admit his own statements, those statements "are instead hearsay, offered for their truth, and offered as substantive evidence to support an entrapment defense."
The court agrees that if a party such as the government seeks to admit a statement made by that party's opponent—in this case, the defendant—against that opponent, the statement is not hearsay under Rule 801(d)(2). If the opponent—the defendant—seeks to admit his own statements, the Rule 801(d)(2) exception doesn't apply, and if the opponent is seeking to admit the statements for the truth of the matters they assert, the statements meet the definition of hearsay under Rule 801(c). That is not, however, the end if the inquiry. The court still must consider whether the defendant offers the statement for the truth, and whether there are any exceptions to the hearsay rule that might apply.
In
The court understands that the government may not have objected to—or may even have agreed to—some of the defendant's proposed excerpts because it assumed that the court would allow it to present more of the recorded conversations than turned out to be the case. The fact that the court has excluded some of the government's evidence does not necessarily mean that any of his own post-arrest statements the defendant asks the court to admit are per se inadmissible hearsay.
Rule 106 of the Federal Rules of Evidences provides that "[i]f a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part—or any other writing or recorded statement—that in fairness ought to be considered at the same time." The advisory committee notes to the rule explain that it "is an expression of the rule of completeness."
"Generally, when part of a defendant's post-arrest statement is introduced into evidence, the defendant has the right to have the entire statement introduced."
On appeal, LeFevour argued that the trial judge should have allowed him to pay the rest of the recording under Rule 106.
The court went on to explain,
Just under a year later, the Seventh Circuit issued an en banc decision in
On appeal, the defendant argued that Rule 106 required the trial court to admit the recording of the August conversation.
Applying this test, the court held that the excluded August 1984 conversation, "while perhaps useful to the jury, was not necessary to explain evidence already admitted," and thus that "Rule 106 was not implicated."
Six years later, the court again addressed Rule 106 in the context of a post-arrest statement. In
On appeal, the defendant argued that Rule 106 required the trial judge to overrule the government's objection and admit the statements.
The
In early 2012, the court returned to the context of recorded statements. In
Finally, in
Against this backdrop, the defense asks the court to admit more of the content of the defendant's post-arrest interviews than the government seeks to admit. Dkt. No. 330. The defendant gave two statements after his arrest. The first began around 3:40 p.m. on January 25, 2016—the day of the machinegun/silencer purchase—as FBI agents Jonathan Adkins and Eric Frazier were driving the defendant from Pleasant Prairie, Wisconsin to Milwaukee. Dkt. No. 332. The second took place around 4:20 p.m. on the following day, January 26, at the FBI office in Milwaukee. Dkt. No. 332-1. Neither party asks to admit the entire transcripts of the interviews. Rather, the government has proposed those excerpts it seeks to admit, and the defendant has asked the court to supplement those excerpts, citing Rule 106 as the basis for its request. This decision addresses only the defendant's requests and how they relate (or do not) to the government's proposed excerpts.
From pages 9 and 25 of the recording of the January 25 interview in the car, the government has asked to present four short excerpts. The defendant asserts that Rule 106 requires that all seventeen pages—pages 9 through 25— should be played to the jury. Dkt. No. 330 at 7. He argues that if the court admits only the four excerpts the government proposes, it would leave the jury with the impression that the defendant wanted the guns for "offensive" purposes and for a reason other than "having fun," that the idea to obtain the machineguns was "all three of theirs," that the defendant was "in control of Steve and Mike" and that the defendant wanted an automatic rifle.
The government responds that the majority of the seventeen pages the defense seeks to admit consist of the defendant walking the agents through the gun purchase transaction; the government argues that the excerpts it has proposed are not incomplete, misleading or distorted and that the defendant's additions aren't necessary to explain or clarify its excerpts. Dkt. No. 336 at 3-4. The government did not object to the proposal that it add a few lines to the first excerpt on page 11.
The first excerpt the government proposes is the following:
Dkt. No. 332 at 11, lines 1-17.
The government stated in its response that it had no objection to the defense request to add the next six lines:
The defense asks to add page 9, lines 6-25 and all of page 10 that preceded this conversation. On those pages, the defendant tells Adkins that he didn't know anything about the men he bought the weapons from, that "Moneser"—Mike—had the whole idea, but that he and Steve bought the weapons. The defendant also says that Mike has a gun, and that he, Mike and Steve went shooting. He reiterates that he and Steve bought the guns, although in response to Adkins' question about what kind of guns they were, the defendant says he didn't know.
These statements are relevant to the issue of whether the defendant intentionally purchased a machinegun. Most of the statements the defendant seeks to admit are relevant, given that most of the interview was about the purchase of the machineguns. The question is whether these preceding statements (1) explain the admitted evidence; (2) place the admitted evidence in context; (3) will avoid misleading the trier of fact; and (4) will insure a fair and impartial understanding of all the evidence.
The statements on pages 9 and 10 do not explain the portion the government will present. The government's proposed statements are clear—the defendant wanted the guns for fun, Mike said they could go shoot them somewhere "clear," the defendant admits buying them illegally, and says he did so because he couldn't afford to purchase them legally. The statements on pages 9 and 10 don't necessarily place those facts in context. The government's proposed statements are not misleading.
The defendant argues that the jury needs to know that buying the machineguns was Mike's idea, and that Mike was the one who had the connections. It argues, therefore, that the defendant's statement that buying the guns was Mike's idea is necessary for the jury to have a fair and impartial understanding of all the evidence.
If the court had not allowed the defendant to present an entrapment defense, the defendant's argument might carry less weight. But because the court has allowed that defense, the parties will be asking the jury to determine whether it was the defendant's idea or Mike's (or Steve's) to buy machineguns, in the context of determining whether the defendant was predisposed to commit the charged offenses. That makes the defendant's assertion that buying guns was Mike's idea both relevant and necessary to a fair and impartial understanding of all the evidence.
The defendant also asks the court to include page 11, lines 24-25, pages 13 and 14 and page 15, lines 1-12. Much of this is irrelevant (the agent encouraging the defendant to tell the truth) or consists of the defendant describing the transaction step by step. There are some bits, however, that are relevant and necessary to a fair and impartial understanding of the evidence. Page 12, lines 13-25, page 13 and page 14, line 1 include the defendant stating how much he paid for the guns, describing the gun he believed he was purchasing, stating that "we" weren't going to buy automatic weapons but admitting that "he"—presumably, the undercover agent who sold the guns— had explained what automatic weapons and silencers do.
The next excerpt the government proposes is on page 15.
Dkt. No. 332 at 15, lines 13-19.
The court notes that the government left out the question Agent Adkins asked that solicited this answer. That question is at lines 11-12, and would be helpful for the jury to understand why the defendant said, "Because that's all we have."
On the pages that follow, the agent asks the defendant about what the gun seller explained to him about how the guns worked. In the process, the defendant described how Mike got into the gun seller's truck and checked the weapon because "he—he's the only one who knows about weapons . . . ." Dkt. No. 332 at 17, lines 4-5. The defendant also indicates—contrary to what he'd said before—that it was Mike who'd explained about how the machineguns worked, not the seller. These portions of the statement are relevant and necessary to the jury's understanding of all the evidence as it relates to the entrapment defense. The lines that follow are a discussion of the undercover agents and their truck, which is not relevant.
Starting at the bottom of page 18, the interview turns again to Mike being the "weapons expert," suggesting the purchase, going shooting, training. This is, of course, the defense—that it was all Mike's idea, and that the defendant was entrapped. If the court had not allowed the defendant to present this defense, arguably these lines would constitute inadmissible hearsay as to the defendant and would not be relevant to the question of whether he was guilty of buying the unregistered guns and silencer. But because the court has allowed the entrapment defense, these statements are relevant and necessary to a jury's understanding of all the evidence.
The next portion of the interview is the defendant describing how the guns got into a bag, how he put them in the car, explaining how many weapons were in the bag. There also is an interruption when one of the agents receives a phone call. This portion does not clarify prior or upcoming statements.
The next portion the government proposes to admit is on page 22.
Dkt. No. 332 at page 22, lines 5-21.
The defendant has asked to present the remainder of page 22, pages 23 and 24 and the portion of page 25 that precedes the government's last proposed portion. In these pages, the defendant explains to the agents that Mike has a gun—a small one, like a handgun—that he carries when he does deliveries, to protect himself from robberies. The defendant denies he was buying machineguns to protect himself, and says that he was buying them to go shooting up north for fun. The agent asks the defendant about training, and the defendant denies that he is training for anything other than learning to shoot. These statements are relevant to the entrapment defense and put the admitted statements in context.
This covers all the defendant's requests regarding the January 25, 2016 interview in the car on the way to Milwaukee. The government will admit two other portions. One immediately follows the portion the court allowed in the prior paragraph; in it, the defendant explains how he knows Steve and Mike, and what his relationship is with them. Dkt. No. 332 at p. 25, lines 13-25 and p. 26, lines 1-3. The other is a discussion of the defendant's fitness, or workout, routine. Dkt. No. 332 at p. 35, lines 20-25 and page 36, lines 1-3. (The government also will present the first fourteen lines of the recorded interview, dkt. no. 332 at p. 3, lines 1-14, to set the scene and introduce the participants.)
The defendant has proposed several additional portions of the January 26, 2016 interview that took place in the FBI office in Milwaukee. Some of these portions are adjacent to the government's proposed excerpts. Others are not. Particularly regarding the non-adjacent portions, the government argues that these excerpts can't provide context.
The defendant responded as follows:
Dkt. no. 352 at 4-5.
The government plans to put in the first eight lines, setting the scene, and five lines in which the defendant explains to Agent Adkins why he wanted an automatic weapon. The defendant proposed to add the lines between those two segments, as well as twenty-one lines after, in which the defendant explains why he didn't buy the guns from a gun store, states that the "other guys" would also say they were buying the guns for fun, and asserts that they were not going to shoot the guns in the city but were going to take them up north. As noted, the government originally did not object to these additions, but after the court's October 16, 2019 ruling excluding certain recorded conversations proposed by the government (dkt. no. 342), the government objected to the court admitting any of the defendant's statements from the two interviews if offered by the defendant. Dkt. No. 355 at 2.
The court doesn't know whether this means that the government now objects to the inclusion of Dkt. No. 332-1, page 2 lines 4-22 and page 3, lines 3-24—portions to which it previously had not objected. But the court will grant the defendant's request as to these portions. One of them—the one on page 2— is another instance of the defendant asserting that he didn't have the money to buy guns legally. The other is a repetition of his claim that he wanted the guns for fun, for shooting out in the woods, and a denial that he was going to shoot them in the city. The government is right that these statements are substantive as they relate to the defendant's theory of the defense, and that the defendant likely is going to argue that the statements are true. But they relate to the defendant's state of mind regarding entrapment. The government is free to argue—as it undoubtedly will—that the statements were untruthful and self-serving and were contradicted by other record evidence.
The government next will admit a portion where the defendant says that he bought the guns because he liked weapons, but tells the agent that his mother would never see it because she would throw it out. The defense proposed to include several lines prior—not completely adjacent, because the parties leave out three lines in between, but on the same topic. In the lines the defense proposes, the agent asks the defendant where he was going to keep the guns. The defendant first says he was going to keep them at Mike's (because Mike has his own house and car), but then says that to be honest, he was going to keep them in his basement. The government objects to the admission of these lines, arguing that they do not clarify the defendant's statements about his mother never seeing the gun. The court agrees. The jury does not need to know where the defendant first proposed to keep the guns, or that he changed his mind, or that he was talking about putting the guns in the basement. The agent asked only how the defendant's mother would react if he brought a weapon "into the house."
The government's next portion involves the defendant telling the agents that he had applied to work for the Army; the defendant has not proposed any additions.
The government next proposes a portion in which the defendant discusses where he went to school and what he studied. The defendant proposed the addition of two lines before the section and five lines after, to clarify that the defendant didn't finish school or earn the degrees or certificates he sought. The government did not object in the first instance, and the court agrees that these statements provide a more complete picture of the defendant's educational situation (relevant because of the defendant's argument that he was particularly susceptible to inducement, given his cognitive abilities and educational level).
The government's next excerpt consists of the agent making sure the defendant was comfortable and had water. The defendant proposed no additions.
The defendant asks to admit an excerpt that is not adjacent to any of the government's proposed portions. When the agent enquires whether he's ever purchased a gun before, the defendant says that the first time he shot was with Mike, that Mike took him to the range, that they used Mike's gun, and that the defendant didn't have any weapons of his own. These statements are relevant to predisposition and inducement. The government is correct that they are substantive. It is likely correct that the defendant wants them admitted for the truth, to support his theory of the defense. It may be correct that they are "falsely" exculpatory. If the court had not allowed the entrapment defense, these statements would be irrelevant. Because it has, the statements are relevant and allow the jury to fairly and impartially view all the evidence.
In its October 16, 2019 ruling on the government's proposed portions of the recorded conversations, the court excluded most, if not all, conversations in which the defendant talked about traveling to Jordan, Israel or Palestine using his American passport, and how it was easier to get to those countries with an American passport. The government proposed a segment of the interview that discusses the defendant's passport, and the defendant proposed an additional portion (to which the government did not originally object). Given the court's rulings on the recorded conversation, these portions of the post-arrest statement are no longer relevant.
From pages 26 through 56, the government proposes only a few short segments where the agents ensure the defendant's comfort—giving him a restroom break, ensuring that he's still speaking voluntarily and adjusting his handcuffs. The defendant proposed no additions to these portions.
The government proposed a short segment where the agent asked the defendant if he felt "close to Palestine," and the defendant responded that he did because it was his nationality, that "we" lived there since 1948 but left to go to Jordan but that Jordan was not "our" country and that "we" were living here. It is not clear whether by "we" the defendant means his family or people of Arab descent. It is not clear whether his reference to 1948 means that his family lived in Palestine in 1948, or whether he means to refer to people of Arab descent living in the area since 1948 (during the first war of the Arab-Israeli conflict). The court has excluded some conversations in which the defendant talked of going to the Middle East, but not all of them. The court allowed some conversations where the defendant discussed going to Palestine. This comment provides some context for those conversations. The court will not exclude this statement, but it notes that the parties have argued that they need to present expert witnesses to educate the jury on the Israeli-Palestinian conflict and the relationship between persons of Arab descent and Israelis and/or Jewish people. The fact that the court is allowing this brief statement to remain does not change the court's ruling barring the parties from presenting expert witness testimony on this topic.
The defense asks to present another non-contiguous segment in which the defendant says that Mike put the idea of guns in his head, that he wanted a gun because he saw Mike's, that he asked Mike a lot about the gun and how to buy a gun, and about what Mike told him about buying guns. The defendant includes in this segment the agent's acknowledgment of the defendant's admission that buying the guns was his fault and that he made a mistake. The government reiterates that these statements do not explain anything that comes before or after, and that this is nothing more than a "false exculpatory" statement. While this statement is separated by a page from the next segment the government seeks to admit, it is relevant to that statement. In the next segment the government seeks to admit, the agent asks the defendant why the men didn't just go to a gun store and buy a cheap, legal gun. The defendant responds in the same vein as he does in the segment the defendant asks to admit (albeit without stating that Mike put the idea in his head), talking about the cost of buying legal weapons and the fact that he liked the guns. It is true that the defendant appears to "talk out of different sides of his mouth" in these two excerpts—in one, he says this was Mike's idea and the defendant just wanted a gun to protect him on deliveries, but in the other says he bought the guns on the 25th because he liked them. It will be up to the jury to decide which, if either, of those statements is true.
Over pages 59-65, the government proposes two excerpts in which the agent tells the defendant that he's heard rumors that the defendant, Mike and Steve were "planning something." The defendant denies this and reiterates that they wanted the guns to go up north and have fun. The defendant proposed to add six adjacent lines in which the defendant explained that the men were planning to go up north right after buying the guns, and that Mike told them they'd be traveling over six hours north. The government did not object to this addition originally. The additional lines are necessary under Rule 106 to make clear that the defendant wasn't talking about (or claims he wasn't talking about) some hypothetical future someday.
The defendant next proposes a non-adjacent excerpt in which the defendant explains to the agent how he talked to the Imam, related to Steve and Mike what the Imam had told him, how Steve and Mike didn't believe him, how he contacted his uncle on Facebook and how his uncle said going to the Masonic Center was not good. The government argues that this excerpt doesn't complete or explain anything that comes before or after and that it is hearsay that the defendant seeks to admit for the truth. The government sought to present a recorded conversation in which the defendant discusses what he learned from the Imam.
This portion raises a tangle of issues. The court discussed in its October 16, 2019 ruling (dkt. no. 342) that the government believes that the defendant plotted to commit a mass murder at the Masonic Center, but that the government did not charge the defendant with that plot. It discussed the fact that the government's failure to charge the defendant with the Masonic Center plot was not error or negligence or accident on the government's part; due to the state of federal criminal law the government could not charge the defendant with the plot. Acknowledging that, the court nonetheless concluded in the October 16 order that many of the conversations the government sought to admit may have showed predisposition to commit a mass attack, but did not necessarily show a predisposition to commit the charged offenses of possessing unregistered machineguns and a silencer. The court also concluded that some of the recorded statements in which the defendant, Steve and Mike discussed the details of the proposed plot were so unduly prejudicial and inflammatory that they would tempt a jury to convict him of an offense with which he had not been charged.
The defendant's argument that he backed out of the attack plot on the advice of the Imam is relevant to whether he was predisposed to go through with the attack. But it is less relevant to whether he was predisposed to buy the machineguns. This is a thin line—the government asserts that the defendant wanted the machineguns so that he could attack the Masonic Center. But the court has ruled that motive isn't a necessary element and is irrelevant to the charged offenses, so the defendant having changed his mind about the attack is also less relevant to the charged offenses.
That said, the government also seeks to present portions of the interview in which the defendant explains why the men targeted a Masonic center, who made the plan. The government also did not object to the defendant's request to put in a discussion of what the defendant told the Imam, and how the Imam responded. And, as the court noted in its October 16 decision, the jury will know that the defendant participated in plans to attack the Masonic Center, even though the jury will not hear some of the more inflammatory discussions of the details of that plan.
While a plan to attack a Masonic Center may not necessarily show predisposition to buy machineguns, the facts are related. Because the jury will hear—and should hear—that the defendant's participation of the purchase of machineguns related in some way to his discussion of an attack on the Masonic Center, the facts relating to his discussions with the Imam are relevant. There is also far more about the discussion with the Imam in the interview than either party seeks to admit. The discussion starts at page 74, when the defendant explains that before going through with the attack, he wanted to find out whether it was "against our religion" and he decided to go to his mosque. Dkt. No. 332-1 at 74 lines 1-12. It continues through page 90, then comes up again on pages 94 through 99. Throughout these same pages, the defendant discusses the YouTube videos he saw where he learned (he says) that the Masons kidnapped people and were associated with the devil and killed people. Between them, the parties seek to introduce only portions of this extensive discussion that go to the heart of what the government says is the defendant's clear intention to commit the attack, and what the defense says is a wild, misbegotten scheme based on misinformation that the defendant abandoned after talking to a religious leader.
The jury is going to hear about the attack on the Masonic Center, the videos and the defendant's purported change of heart. The excerpts he proposes relate to those issues. They are exculpatory—they may be falsely exculpatory. The government may seek to introduce more of the post-arrest statement given the court's ruling on this issue, and the court will entertain such a request. But the court will allow some of the defendant's additions.
In its "omnibus memorandum re: statements" filed on October 18, 2019, the defense proposed another addition that it had not proposed originally. Dkt. No. 352 at 6. It proposed to add several lines from pages 94-95 of the interview, in which the defendant says that he thought if he committed the attack he'd go to heaven, but that he later concluded that it was wrong, and that even if the Imam told him to do it, he wouldn't do it.
Dkt. No. 300 is the government's brief regarding positional predisposition. There are no exhibits attached to it. The government's exhibit list, Dkt. No. 290-2, identifies Exhibit 16Q as "clip #15" of the defendant's post-arrest interview. This portion of the interview appears at page 79, lines 13-22. In this excerpt (which the government will present), the defendant explains that the Masons are the ones who believed in the devil and that that was against Islam. He tells the agent that "what we thought about the devil in the [Qu'ran] and they talked about it a lot, and if we kill it, this is legal, like, in our—in our religion." Dkt. No. 332-1 at 79, lines 20-22.
The court first notes that the government's proposed segment ends in the middle of a sentence, before a comma. Rule 106 requires that the government put in the full sentence—". . . this is legal, like, in our—in our religion"—rather than ending at "this is legal."
Given that, the excerpt the defendant proposes at pages 94 and 95 is cumulative. It is additional explanation for why he originally thought the attack was "legal" in the religious sense—he explains that he thought he'd go to heaven if he did it and he died. Dkt. No. 332-1 at p. 94 lines 14-19. More to the point, however, if the court allows the presentation of this excerpt, it opens a can of worms that the defense itself has asked the court to keep firmly closed. On page 95 at lines 4-5, the defendant tells the agent, "Like even if Iman [sic] told me, like even if he told me go do it, I'm not going to do it." Two pages later, the agent asks the defendant what he thinks would have happened if the Imam had said "that was okay." Dkt. No. 332-1 at 97, lines 11-14. The defendant responds, "I'm going to do it."
The defendant objects to the admission of the defendant's statement that if the Imam had said it was okay, the defendant would have "do[ne] it." He argues that it is speculative, highly inflammatory and unduly prejudicial. The government says there is no legal basis for excluding the statement, that it goes to predisposition and motive to acquire weapons and that "Hamzeh's desires and plans (even if not brought to fruition) are central to this case." Dkt. No. 336 at 10. The government says that the defendant has put his own predisposition at issue.
The court will not allow either party to wade into the quagmire of the defendant's post-arrest speculation as to whether he would or would not have committed the attack if the Imam had told him not to. The government will produce evidence supporting its position that the defendant planned to commit the attack. The defendant may try to rebut that evidence, or may produce evidence in rebuttal showing either that he didn't plan to participate in an attack, or that he did but changed his mind. After-the-fact speculation about what the defendant might or might not have done if circumstances had been different is irrelevant to predisposition or inducement or to whether the defendant is guilty of the offenses with which he's been charged.
The government will put in an excerpt in which the defendant says that nobody told him "to do this." Dkt. No. 332-1, page 98 lines 7-11. The defendant seeks to put in bookending statements (one of which is not strictly adjacent) where the defendant explains that he decided on the Masonic Center because of videos he saw on YouTube. The government originally did not object to one of these statements—the one on pages 98-99. These statements are relevant to, and provide context for, the defendant's answer that no one told him to attack the Masonic Center.
The government will introduce several lines in which the defendant tells the agent that Mike and Steve were listening to him, that he was more religious than they were and that they believed him and did anything he wanted; the defendant told the agent that he "controlled" Steve and Mike. Dkt. No. 332-1 at pages 103-104. The defendant asks to put an extended excerpt in which the defendant again explains about going to the mosque, talking to the Imam, reporting back to Mike and Steve what the Imam said, Mike and Steve not believing him, and the fact that if one Imam had told him to do it, he'd ask another Imam.
The court agrees with the government that the excerpt the defendant wishes to admit doesn't really address or explain the defendant's statement that he controlled the informants. The statement the defendant seeks to admit is repetitive of portions the court already has allowed. Finally, the next portion the government seeks to admit addresses this issue.
The government proposes to admit a segment in which the defendant says he was a "regular person" before seeing the YouTube videos, then he got ideas, he told Steve and Mike about the ideas, then he stopped it. He says he watches videos about how extremist groups kill people and shoot children and mentions that the videos show a link between ISIS and the Masons. Dkt. No. 332-1 at pages 108-109. The defense asks to add eight additional lines, where the defendant says he's seen a lot of videos and that he's 100% against ISIS. The government didn't object originally, and under Rule 106, the additional lines give the defendant's complete statement on the issue.
Finally, the government will admit six lines where the agent questions the defendant about spending his hard-earned money to buy bigger, better guns only for the purpose of going up north.
The government asked to adjourn the start of the trial by two days, to give it the opportunity to determine whether it would seek leave to appeal some of the court's earlier evidentiary rulings, particularly the October 16, 2019 ruling. The court provides this ruling pretrial so that the government can consider whether it impacts the decision about whether to seek leave to appeal; the court assumes that if the government does seek, and receive, such leave, it will include any challenges to this ruling in that appeal.
