Order — United States v. Konrad Bicher (Southern District of New York, Document 10, filed October 28, 2022)

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An order dated October 28, 2022, by Judge Lorna G. Schofield in United States v. Konrad Bicher, 22 Crim. 589 (LGS) (Document 10), entered under Federal Rule of Criminal Procedure 5(f). It restates the Government's obligation to give the defense all information "favorable to an accused" that is "material either to guilt or to punishment," and any information that can impeach a Government witness. The order says these obligations are continuing and that the Government may apply to the Court for a modification if it believes disclosure would compromise witness safety or another substantial interest. It lists sanctions the Court may impose for non-compliance, including a continuance, evidentiary sanctions and dismissal of charges before trial.

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            Case 1:22-cr-00589-LGS Document 10 Filed 10/28/22 Page 1 of 2




UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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                                                                       :
UNITED STATES OF AMERICA                                               :
                                                                       :
                  -v-                                                  :    22 Crim. 589     (LGS)
                                                                       :
KONRAD BICHER,                                                         :           ORDER
                                                                       :
                                    Defendant(s).                      :
                                                                       :
---------------------------------------------------------------------- X

LORNA G. SCHOFIELD, United States District Judge:

         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 1:22-cr-00589-LGS Document 10 Filed 10/28/22 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: October 28, 2022
       New York, New York

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