Order on Government Disclosure Obligations — U.S. v. Scher, 22 CR 320 (S.D.N.Y.), Dkt. 5

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Order, Document 5, filed 06/09/22, in Case 7:22-cr-00320-PMH, 22 CR 320, in the case against Elizier Scher, entered under the Due Process Protections Act. It states that the Government must disclose to the defense all information "favorable to an accused" that is "material either to guilt or to punishment" and known to the Government, whether or not the defendant requests it. It states that if the Government believes a disclosure would compromise witness safety, victim rights, national security, a sensitive law-enforcement technique, or another substantial government interest, it may apply to the Court for a modification. Listed responses to non-compliance include a continuance, evidentiary sanctions, contempt sanctions on a responsible lawyer, and dismissal of charges before trial.

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Case 7:22-cr-00320-PMH Document5 Filed 06/09/22 Page1of3

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA,

Plaintiff, ORDER

-against-
22 CR 320

ELIZIER SCHER,

Defendant.

This Order is entered, pursuant to Federal Rule of Criminal Procedure 5(f) and the Due
Process Protections Act, Pub. L. No 116-182, 134 Stat. 894 (Oct. 21, 2020), 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. Jd. at 87.
This obligation applies regardless of whether the defendant requests this information or 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.!

' This Order does not purport to set forth an exhaustive list of the Government’s disclosure obligations,
Case 7:22-cr-00320-PMH Document5 Filed 06/09/22 Page 2 of 3

The foregoing obligations are continuing ones and apply to materials that become known
to the Government in the future. These obligations also apply to information that is otherwise
subject to disclosure 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 fora
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 has an affirmative obligation to seek all
information subject to disclosure under this Order from 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 fo the prosecution, of the offense or offenses with which the
defendant is charged.

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 contempt or other sanctions on any lawyer responsible for violations of the
Government’s disclosure obligations, or refer the matter to disciplinary authorities;

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

2 The Classified Information Procedures Act sets forth separate procedures to be followed in the event that the
Government believes matters relating to classified information may arise in connection with the prosecution. See [8

U.S.C, app. 3 §§ | ef seq.
Case 7:22-cr-00320-PMH Document5 Filed 06/09/22 Page 3of3

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

Dated: June 9, 2022

White Plains, New York
SO ORDERED:
JUDITH C. McCARTHY Gi

United States Magistrate Judge


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