Order — No. 1:21-cr-00403 (Dkt. 44, S.D.N.Y.)

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An order in United States v. Ngoc Manh Nguyen, Victoria Dievy Ho and Dat Tat Ho, 21-CR-00403 (VEC), in the U.S. District Court for the Southern District of New York, dated June 21, 2021 and issued by Magistrate Judge Stewart D. Aaron. Entered under Federal Rule of Criminal Procedure 5(f) and the Due Process Protections Act, it confirms the Government's obligation to disclose information favorable to the accused under Brady v. Maryland and impeachment information under Giglio v. United States. It lists the steps the Court may take if the Government fails to comply, from a continuance to dismissal of charges.

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF DISTRICT

UNITED STATES OF AMERICA,

-V- 21-CR-00403 (VEC)
NGOC MANH NGUYEN,
a/k/a "Peter Nguyen" ORDER
VICTORIA DIEVY HO,
a/k/a "Vicky Ho," and
DAT TAT HO, Defendants.

Hon. Stewart D. Aaron, United States Magistrate Judge:

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. /d. 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.
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 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 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 to 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

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

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 18
U.S.C. app. 3 §§ 1 e¢ seq.

2
SO ORDERED.

Dated: June 21, 2021
New York, New York

United States Magistrate Judge


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