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Case 1:20-cr-00330-PAE Document 244 _ Filed 04/23/21 Page10of14 The Honorable Alison J. Nathan April 2, 2021 Page 10 not credible. And, once again, the government has turned a blind eye to the existence of the journal, refusing to collect clearly relevant and exculpatory evidence. This type of evidence, “journals,” or “diaries” is, without question, exculpatory material that the government would have to provide to the defense in advance of trial if it were in their possession. The government’s failure to obtain the journal contravenes Second Circuit law: If the diary had contained exculpatory information or other material that would have been useful to the defense for the purpose of impeaching [the witness’s] credibility, the government would have been required under Brady v. Maryland, supra, to turn over such material to the defense. See, e.g., United States v. Seijo, 514 F.2d 1357 (2d Cir. 1975). By allowing a potential source of such material to remain in the possession of the very witness whose credibility it might be used to impeach, the government created a serious risk that significant material would be destroyed or tampered with.[*]Under the circumstances, the diary should have been impounded with the court, subject to use and inspection by both sides under conditions that would protect the defendants from destruction or alteration, and the witness from unwarranted invasions of privacy or disclosure of information that might jeopardize his safety. Under no circumstances should the diary have been returned to the unsupervised possession of the witness. United States v. Cheung Kin Ping, 555 F.2d 1069, 1079 (2d Cir. 1977); see also White v. McKinley, 519 F.3d 806, 810, 814 (8th Cir. 2008) (where diary contained no entries related to the defendant’s alleged sexual abuse the failure to preserve the diary deprived the defendant of his right to a fair trial); United States v. Rios, No. 88-CR-186, 1989 WL 92839, at *2 (N.D.N.Y. Feb. 6, 1989) (“[T]o the extent that this diary contains evidence favorable to one of the 4 Ms. Maxwell’s concerns about spoliation and authenticity of an accuser’s diary are far from speculative. BSF’s client Virginia Roberts testified at her depositions that she had (a) burned her “diary” containing her allegations against Jeffrey Epstein and Ghislaine Maxwell in a 2013 bonfire with her husband to rid herself of the “bad memories,” while she was represented by counsel, and (b) created another “fake” diary, 15 years after the fact, concerning her supposed sexual interactions with Prince Andrew that journalist Sharon Churcher printed in Radar Online as though they were a contemporaneous “diary.” See Exhibit A. DOJ-OGR- 00003981