Order — United States v. Richard Gonzalez (S.D.N.Y., Dkt. 26, December 2, 2021)

Summary

An Order in United States v. Richard Gonzalez, 21 CR 406 (NRB), in the U.S. District Court for the Southern District of New York, filed December 2, 2021 as Document 26 and dated December 2, 2021 over the name of United States District Judge Naomi Reice Buchwald. The Order states it is entered under Federal Rule of Criminal Procedure 5(f) to confirm the Government's disclosure obligations under Brady v. Maryland and summarize the possible consequences of violating them. It says the Government must disclose information favorable to an accused that is material either to guilt or to punishment, including impeachment information for a Government witness. It lists steps the Court may take if the Government fails to comply, including a continuance, evidentiary sanctions, and dismissal of charges before trial.

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           Case 1:21-cr-00406-NRB Document 26 Filed 12/02/21 Page 1 of 2




UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------------- X
                                                                       :
UNITED STATES OF AMERICA                                               :
                                                                       :
                  -v-                                                  :        21 CR 406 (NRB)
                                                                       :
RICHARD GONZALEZ,                                                      :           ORDER
                                                                       :
                                    Defendant.                         :
                                                                       :
---------------------------------------------------------------------- X

        This Order is entered, pursuant to Federal Rule of Criminal Procedure 5(f), to confirm the

Government’s disclosure obligations under Brady v. Maryland, 373 U.S. 83 (1963), and its

progeny, and to summarize the possible consequences of violating those obligations.

        The Government must disclose to the defense all information “favorable to an accused”

that is “material either to guilt or to punishment” and that is known to the Government. Id. at 87.

This obligation applies regardless of whether the information would itself constitute admissible

evidence. The Government shall disclose such information to the defense promptly after its

existence becomes known to the Government so that the defense may make effective use of the

information in the preparation of its case.

        As part of these obligations, the Government must disclose any information that can be

used to impeach the trial testimony of a Government witness within the meaning of Giglio v.

United States, 405 U.S. 150 (1972), and its progeny. Such information must be disclosed

sufficiently in advance of trial in order for the defendant to make effective use of it at trial or at

such other time as the Court may order.
          Case 1:21-cr-00406-NRB Document 26 Filed 12/02/21 Page 2 of 2




       The foregoing obligations are continuing ones and apply to materials that become known

to the Government in the future. Additionally, if information is otherwise subject to disclosure,

it must be disclosed regardless of whether the Government credits it.

       In the event the Government believes that a disclosure under this Order would

compromise witness safety, victim rights, national security, a sensitive law-enforcement

technique, or any other substantial government interest, it may apply to the Court for a

modification of its obligations, which may include in camera review or withholding or subjecting

to a protective order all or part of the information otherwise subject to disclosure.

       For purposes of this Order, the Government includes all current or former federal, state,

and local prosecutors, law-enforcement officers, and other officers who have participated in the

prosecution, or investigation that led to the prosecution, of the offense or offenses with which the

defendant is charged. The Government has an affirmative obligation to seek from such sources

all information subject to disclosure under this Order.

       If the Government fails to comply with this Order, the Court, in addition to ordering

production of the information, may:

   (1) specify the terms and conditions of such production;

   (2) grant a continuance;

   (3) impose evidentiary sanctions;

   (4) impose sanctions on any responsible lawyer for the Government;

   (5) dismiss charges before trial or vacate a conviction after trial or a guilty plea; or

   (6) enter any other order that is just under the circumstances.

       SO ORDERED.

Dated: December 2, 2021                                _____________________________
       New York, New York                                    Naomi Reice Buchwald
                                                           United States District Judge

                                                  2


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