IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
In the matter of
FEDERAL RULE OF CRIMINAL MISCELLANEOUS GENERAL
PROCEDURE 5(f) and the DUE PROCESS ORDER 21-11
PROTECTIONS ACT
Under federal law, including Rule 5(f) of the Federal Rules of Criminal Procedure, Brady
v. Maryland, 373 U.S. 83 (1963), and all applicable decisions from the Supreme Court and the
Ninth Circuit interpreting Brady, the government has a continuing obligation to produce all
information or evidence known to the government relating to guilt or punishment that might
reasonably be considered favorable to the defendant’s case, even if the evidence is not admissible
so long as it is reasonably likely to lead to admissible evidence. See United States v. Price, 566
F.3d 900, 913 n.14 (9th Cir. 2009). Accordingly, the Court orders the government to produce to
the defendant in a timely manner all such information or evidence. This Miscellaneous General
Order supersedes MGO 21-03 issued on February 2, 2021, and complies with the Revisions to Due
Process Protections Act Model Orders recently approved by the Ninth Circuit Judicial Council.
Information or evidence may be favorable to a defendant’s case if it either may help bolster
the defendant’s case or impeach a prosecutor’s witness or other government evidence. If doubt
exists, it should be resolved in favor of the defendant with full disclosure being made.
If the government believes that a required disclosure would compromise witness safety,
victim rights, national security, a sensitive law-enforcement technique, or any other substantial
government interest, the government may apply to the Court for a modification of the requirements
of this Disclosure Order, which may include in camera review and/or withholding or subjecting to
a protective order all or part of the information.
This Disclosure Order is entered under Rule 5(f) and does not relieve any party in this
matter of any other discovery obligation. The consequences for violating either this Disclosure
Order or the government’s obligations under Brady include, but are not limited to, the following:
contempt, sanction, referral to a disciplinary authority, adverse jury instruction, exclusion of
evidence, and dismissal of charges. Nothing in this Disclosure Order enlarges or diminishes the
government’s obligation to disclose information and evidence to a defendant under Brady, as
interpreted and applied under Supreme Court and Ninth Circuit precedent. As the Supreme Court
noted, “the government violates the Constitution’s Due Process Clause ‘if it withholds evidence
that is favorable to the defense and material to the defendant’s guilt or punishment.’” Turner v.
United States, 137 S. Ct. 1885, 1888 (2017) (quoting Smith v. Cain, 565 U.S. 73, 75 (2012)).
DATED this 15th day of April, 2021.
/s/ Timothy M. Burgess /s/ Sharon L. Gleason /s/ Joshua M. Kindred
Hon. Timothy M. Burgess Hon. Sharon L. Gleason Hon. Joshua M. Kindred
Chief United States District Judge United States District Judge United States District Judge
Distribution:
District Judges Magistrate Judges
U.S. Attorney Federal Public Defender
Clerk of Court U.S. Probation & Pretrial Services
Court Librarian Court Rules Attorney
Alaska Bar Assn Active Attys via ECF
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