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Case 1:20-cr-00330-PAE Document 269 Filed 05/04/21 Page4of9 Page 4 Government has acknowledged. In other words, there will be no dispute at trial that Minor Victim- 2 did not write about the defendant in her diary.! The cases the defendant cites are inapposite. For instance, in United States v. Cheung Kin Ping, 555 F.2d 1069 (2d Cir. 1977), the parties learned that a cooperating witness kept a diary, which was largely written in Chinese, while the witness was still on cross-examination. /d. at 1078. The witness turned over his diary, but after observing that the “defense was examining his diary, .. . he requested that this not be done.” /d. While the parties were discussing how to review the diary, including for Brady material, the diary was returned to the witness. It was only given to the defense for examination after “roughly five days” in the witness’s possession. /d. at 1079. Accordingly, in that case, a diary that had never been evaluated for Brady material—or any other material—was taken from a witness in the middle of the witness’s cross-examination, then returned to him for five days. The Second Circuit found that those events “created a serious risk that significant material would be destroyed or tampered with.” Jd. Here, in contrast, the diary contains no relevant material—in fact, that is the defendant’s very thesis. See also White v. McKinley, 519 F.3d 806, 814 (8th Cir. 2008) (explaining, in a § 1983 case, that the plaintiff had alleged bad faith by stating that a law enforcement officer in a child molestation case “deliberately steer[ed] the investigation to benefit his love interest,” in part by “‘fail[ing] to preserve the alleged victim’s diary which did not corroborate the molestation allegations,” which in turn “deprived [the defendant] of his right to a fair trial, in part, because he could not testify about the diary without waiving his right not to testify”); United States v. Rios, No. 88 Cr. 186, 1989 WL 9289, at *2 ' For similar reasons, the entire diary, full of Minor Vicitm-2’s personal and unrelated information, would not be admissible at trial. See Nixon, 418 U.S. 700 (requiring that a Rule 17(c) subpoena target “admissib[le]” evidence). DOJ-OGR-00004097