DOJ-OGR-00006565.pdf

--- Page 1 --- The extracted text is: **Case 1:20-cr-00330-PAE** **Document 441** **Filed 11/12/21** **Page 9 of 12** The Court emphasized that the defendant had acted willfully and in bad faith in not disclosing the witness until the second day of trial after the prosecution's primary witness had testified. See id. at 416-17. Accordingly, "[r]egardless of whether prejudice to the prosecution could have been avoided [by a less severe sanction] ..., it [was] plain that the case fit[] into the category of willful misconduct in which the severest sanction [was] appropriate." Id. at 417; see also United States v. Katz, 178 F.3d 368, 371-72 (5th Cir. 1999) (government's failure to disclose the "photographs" to the defendant in the identical form it intended to produce them at trial was either an attempt to "sandbag" the defense or highly unprofessional conduct and therefore limited the government to the use of black and white images); United States v. Campagnuolo, 592 F.2d 852, 858 (5th Cir. 1979) (no abuse of discretion where, as here, a district judge for prophylactic purposes suppresses evidence that, under a valid discovery order, the government should have disclosed earlier, even if the nondisclosure did not prejudice the defendants); United States v. Wicker, 848 F.2d 1059, 1062 (10th Cir. 1988) (in view of the district court's pressing schedule, the status of the present case, and the failure of a prior continuance and deadlines to ensure timely discovery; a second continuance would not compensate for the prejudice imposed upon the defendant and the district court did not abuse its discretion in suppressing the government's evidence). Here, the Court issued its disclosure order months ago. The government did not agree with the Order and sought reconsideration. The Court considered the government's related request and rejected the government's "concern" that somehow its evidence would be limited at trial. Of course, the government could have made a good faith effort to comply with the Order and, if some other statement came to the government's attention before or during trial it could have, in good faith, requested permission to supplement its proof. Instead, the government has