DOJ-OGR-00008198.jpg

Case 1:20-cr-00330-PAE Document518 Filed 11/30/21 Page5of8 The Honorable Alison J. Nathan November 30, 2021 Page 5 Criminal Procedure, and nothing in any of them suggests that impeachment evidence is discoverable.”). Because Ms. Maxwell offered the photograph while cross-examining Jane during the government’s case-in-chief and not as “evidence in chief” during her own “case-in-chief,” Moore, 208 F.3d at 579, she did not violate Rule 16, and there is no basis to preclude her from admitting the photograph into evidence. But even if the government’s reading of Rule 16(b)(1)(A) were right (which it isn’t), and even if Ms. Maxwell had violated Rule 16 (which she didn’t), exclusion would still not be the proper remedy. “Ifa party fails to comply with [Rule 16], the court may: (A) order that party to permit the discovery or inspection; specify its time, place, and manner; and prescribe other just terms and conditions; (B) grant a continuance; (C) prohibit that party from introducing the undisclosed evidence; or (D) enter any other order that is just under the circumstances.” Fed. R. 16(d)(2)(A)-(D). Prohibiting a party from introducing the evidence is the most extreme sanction available, and it requires proof that the belated disclosure prejudiced the government. See United States v. Monsanto Lopez, 798 F. App’x 688, 690 (2d Cir. 2020); see also Passlogix, Inc. v. 2FA Tech., LLC, 708 F. Supp. 2d 378, 421 (S.D.N.Y. 2010) (“Preclusion is a harsh sanction preserved for exceptional cases where a . . . party’s failure to provide the requested discovery results in prejudice to the requesting party.”).” > It is well-settled that “[t]o exclude evidence on the grounds of a discovery violation, a criminal defendant must show prejudice resulting from the government’s untimely disclosure of evidence. .. .” United States v. Cantoni, No. 18-CR-562 (ENV), 2019 WL 1264899, at *1 (E.D.N.Y. Mar. 19, 2019) (quotation omitted). Considering that the constitution imposes the burden of proof in a criminal trial on the government, surely the same rule applies when the shoe is (allegedly) on the other foot. DOJ-OGR-00008198