United States v. Lopez ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 07-35389
Plaintiff-Appellee, D.C. Nos.
v. CV-05-00084-JLQ
CR-02-00127-JLQ
GABRIELE ELIZABETH LOPEZ, aka
Gabriele Elizabeth Koenig, Nee  ORDER
Konig, AMENDING
Defendant-Appellant. OPINION AND
AMENDED
 OPINION
Appeal from the United States District Court
for the Eastern District of Washington
Justin L. Quackenbush, District Judge, Presiding
Argued and Submitted
April 8, 2008—Seattle, Washington
Filed July 16, 2008
Amended July 29, 2008
Before: Raymond C. Fisher, Ronald M. Gould and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Fisher
9587
UNITED STATES v. LOPEZ 9589
COUNSEL
James A. McDevitt, United States Attorney; Stephanie
Whitaker (argued), Assistant United States Attorney, Spo-
kane, Washington, for the plaintiff-appellee.
9590 UNITED STATES v. LOPEZ
Beth Mary Bollinger, Spokane, Washington, for the
defendant-appellant.
ORDER
The opinion filed July 16, 2008, is amended as follows:
At Slip Op. 8785, line 34: Change “Counsel for one of the
co-defendants told . . .” to “Frank Cikutovich, counsel for one
of the co-defendants, told . . .” .
At Slip Op. 8786, line 24: Change “Bailey to Agent Rice
or . . .” to “Bailey to Rice or . . .” .
At Slip Op. 8792 [4], line 1: Amend to read “In this case,
because Lopez cannot carry the lesser burden of establishing
a Brady violation that would entitle Lopez to habeas relief,
had this been Lopez’s first habeas petition, she cannot carry
the greater burden . . .” .
At Slip Op. 8794 [6], line 4: Amend to read “ . . . Lopez
has not established the existence of such a Brady violation
that warrants habeas relief, had this been Lopez’s first habeas
petition.”.
OPINION
FISHER, Circuit Judge:
Gabriele Lopez, a.k.a. Gabriele Koenig (“Lopez”), filed a
federal habeas corpus motion in the district court seeking to
vacate her drug conviction because the government withheld
until long after her trial potentially damaging credibility infor-
mation about one of the government’s principal witnesses, in
violation of the government’s disclosure obligations under
UNITED STATES v. LOPEZ 9591
Brady v. Maryland, 373 U.S. 83 (1963). The district court,
rejecting the government’s argument that the court lacked
jurisdiction to hear the motion because it was barred by 28
U.S.C. § 2255 as “second or successive,” denied the motion
on its merits. The appeal in this case thus presents a trouble-
some circumstance involving the interplay between the gov-
ernment’s failure to make a timely disclosure of Brady
information and the provisions of the Antiterrorism and Effec-
tive Death Penalty Act (“AEDPA”), 28 U.S.C. §§ 2244, 2255,
which, in the interest of finality, impose significant burdens
on defendants who try to raise claims that were not originally
raised on their direct appeal or first habeas motion.1
For the reasons that follow, we hold that Lopez’s motion
was a second or successive habeas motion that, under
§ 2255(h), required certification from this court before it
could be heard by the district court. Therefore, the district
court erred in reaching the merits because it lacked jurisdic-
tion. Even though under the circumstances here we construe
Lopez’s appeal as a belated request to us for authorization to
file her motion, we must deny certification because the newly
discovered evidence would not be sufficient to establish by
clear and convincing evidence that no reasonable factfinder
would have found her guilty of the offense. See § 2255(h)(1).
We also conclude that the government’s conduct, albeit trou-
blesome, was not “so grossly shocking and so outrageous as
to violate the universal sense of justice,” United States v.
Restrepo, 930 F.2d 705, 712 (9th Cir. 1991) (internal quota-
tion marks and citations omitted), that her conviction must be
vacated and the indictment dismissed.
I.
Lopez was indicted in May 2002 on several charges of pos-
session of cocaine base with intent to distribute. She was tried
1
Hereinafter all statutory provisions cited, unless otherwise indicated,
refer to Title 28 of the United States Code.
9592 UNITED STATES v. LOPEZ
together with Elvis Singh and James Evans, with whom she
lived in a house in Spokane, Washington. Two informants,
David Palmer (“Palmer”) — who emerges as the central fig-
ure in this appeal — and Janie Arambula (“Arambula”), testi-
fied on behalf of the government.
Palmer testified about an occasion on April 9, 2002, when
he went to the defendants’ house in Spokane to buy crack
cocaine with two other participants. The jury heard Palmer’s
recorded conversations with these participants regarding their
drug purchase inside the house. Palmer testified that he did
not see Lopez on that occasion and had never met her at any
other time. Defense counsel cross-examined Palmer about a
variety of issues, such as whether he had used or presently
used drugs and the payment for his work as an informant.
During the trial, a case agent testified that he had taken
Palmer’s Drug Enforcement Administration (“DEA”) file to
the United States Attorney’s Office and that Assistant United
States Attorney Tom Rice (“Rice”) had spoken with Agent
Shelby Smith (“Agent Smith”) of the local DEA. The case
agent further testified that Rice had written a note to one of
the government’s trial attorneys that there was no Brady
material in the file. Frank Cikutovich, counsel for one of the
co-defendants, told the court he was concerned about whether
the government had disclosed all Brady material about Palmer
and requested that the court review Palmer’s file for Brady
material. The court declined, saying it was the responsibility
of the United States Attorney’s Office, not the court, to do so.
As Lopez learned several years later, on June 6, 2002 —
two months before her trial — Lieutenant Chandler Bailey
(“Lt. Bailey”) of the Spokane Police Department Drug Task
Force had called Agent Smith to tell him that the City and
County of Spokane would no longer be using Palmer as a
confidential source in controlled drug buys because he was
“unreliable.” Lt. Bailey had learned that Palmer had been sex-
ually involved with at least one woman who was the subject
UNITED STATES v. LOPEZ 9593
of a drug investigation conducted by the Spokane Police
Department, that some officers believed Palmer had used
investigative funds to buy services from prostitutes and that
Palmer usually sought out women when he chose his own tar-
gets for investigation. Although Lt. Bailey had prepared a
memorandum discussing the allegations that Palmer was “un-
reliable” (the “Bailey memorandum”), he had not sent a copy
to Agent Smith and the memorandum was not in the file at the
time Rice inspected it. There is no evidence that Agent Smith
relayed the information from the conversation he had with Lt.
Bailey to Rice or Assistant United States Attorney Earl Hicks,
who was then in charge of the prosecution of Lopez and her
co-defendants. Nor is there evidence that the government
attorneys involved in the cases asked the pertinent govern-
ment agents whether they had any personal knowledge con-
cerning the credibility of the government witnesses, or any
other Brady information, as opposed to merely looking in
Palmer’s file.
The defense completed its cross-examination of Palmer
without being informed that the City and County of Spokane
were no longer using Palmer because he was considered unre-
liable. Palmer’s testimony did not directly inculpate Lopez in
any drug transaction, and at the close of evidence the court
instructed the jury that the testimony of an informant should
be examined with greater care than the testimony of an unpaid
witness.
Another informant, Arambula, testified about a wire-
recorded controlled purchase of cocaine base she made on
April 18, 2002 from Lopez’s co-defendant Singh, in which
Lopez participated. This was not the controlled purchase
about which Palmer testified. Arambula’s testimony was that
she placed a consensually monitored and recorded telephone
call to Singh to arrange to purchase a half ounce of crack
cocaine. When she arrived at the house, Lopez answered the
door and led her to a bedroom where Singh was on the bed.
Arambula asked to buy a half ounce of crack cocaine, she and
9594 UNITED STATES v. LOPEZ
Singh discussed the price, and then Lopez retrieved and
weighed the crack cocaine for Arambula. Lopez gave her the
crack cocaine, and Arambula then laid the money on Singh’s
chest. Agent Beaumont testified about this transaction,
explaining that he was with Arambula during her telephone
call with Singh and that he conducted surveillance during the
controlled purchase. The tape of the telephone call and the
transmitter wire recording of the controlled buy were admitted
into evidence and played for the jury.
The jury found the defendants guilty of the cocaine base
charges. Specifically, the jury found Lopez guilty of two
counts of violation of 21 U.S.C. § 841(a)(1) (Count 5 —
knowingly and unlawfully distributing a mixture or substance
containing more than five grams of cocaine base; and Count
6 — knowingly and unlawfully possessing with intent to dis-
tribute a mixture or substance containing more than 50 grams
of cocaine base).
The district court acquitted Lopez on Count 6, finding
insufficient evidence. It found, however, there was clear and
convincing evidence to support the jury verdict on Count 5.
The court sentenced Lopez to the mandatory minimum term
of five years. On Lopez’s direct appeal, we affirmed her con-
viction and sentence in an unpublished disposition. See
United States v. Singh, 94 F. App’x 511, 514 (9th Cir. 2004).
In March 2005, Lopez filed her first motion to set aside,
vacate or correct her sentence under § 2255, claiming ineffec-
tive assistance of counsel, a violation of her Sixth Amend-
ment right to an impartial jury, a due process violation and a
sentence in violation of United States v. Booker, 543 U.S. 220(2005). The district court denied the motion.
Then, in 2006, the new Brady information regarding
Palmer came to light in a different case, United States v. Heit,
E. D. Wash. No. CR-05-6028-EFS, in which Palmer was an
informant-witness for the government. Upon learning about
UNITED STATES v. LOPEZ 9595
the Bailey memorandum and its negative information about
Palmer, the government’s counsel in Heit disclosed it to the
defense counsel in that case, who in turn disclosed it to
Lopez’s counsel and her co-defendants’ counsel. At some
time during the prosecution of the Heit case, the Bailey mem-
orandum was put in Palmer’s file.
Meanwhile, the district court in Heit held extensive pretrial
evidentiary hearings on the defendant’s motion to dismiss
based on the government’s alleged outrageous behavior in
using Palmer as a confidential informant. Although the court
recognized that “Palmer’s testimony [was] critical to the Gov-
ernment as he [was] the only ‘government agent’ to have per-
sonally talked with [the defendant],” it nevertheless denied
Heit’s motion and precluded her from introducing evidence
about uncharged allegations of Palmer’s sexual misconduct
and being “black balled” by government agencies. The court
found that any relevance the alleged sexual incidents might
have had regarding Palmer’s credibility or motives was sub-
stantially outweighed by their prejudicial value, especially in
light of other information Heit could utilize to impeach
Palmer.
In the case before us, Lopez filed her § 2255 motion in the
district court in November 2006 to vacate her conviction and
dismiss the indictment with prejudice, based on the govern-
ment’s alleged outrageous behavior in failing to furnish dam-
aging impeachment information concerning Palmer as
required under Brady. Rejecting the government’s argument
that Lopez’s motion was an impermissible second or succes-
sive motion that had not been certified for filing by this court
as required by § 2255(h), the district court denied her motion
on the merits, finding that the impeachment evidence would
not have materially affected the guilty verdict on Count 5.
This appeal followed.
II.
“We review de novo a district court’s determination that a
habeas petition is ‘second or successive’ for purposes of
9596 UNITED STATES v. LOPEZ
[AEDPA].” Henderson v. Lampert, 396 F.3d 1049, 1052 (9th
Cir. 2005).
Whether a habeas application is deemed second or succes-
sive can be critical because “AEDPA greatly restricts the
power of federal courts to award relief to state prisoners who
file second or successive habeas corpus applications.” Cooper
v. Calderon, 274 F.3d 1270, 1272-73 (9th Cir. 2001) (per
curiam) (internal quotation marks omitted). “AEDPA does not
define the terms ‘second or successive.’ ” Henderson, 396
F.3d at 1053 (quoting Hill v. Alaska, 297 F.3d 895, 897 (9th
Cir. 2002)) (internal quotation marks omitted). Section
2244(a) provides:
No circuit or district judge shall be required to enter-
tain an application for a writ of habeas corpus to
inquire into the detention of a person pursuant to a
judgment of a court of the United States if it appears
that the legality of such detention has been deter-
mined by a judge or court of the United States on a
prior application for a writ of habeas corpus, except
as provided in section 2255.
§ 2244(a) (emphasis added).
[1] Section 2255(h) in turn requires that a second or succes-
sive habeas application be certified by a panel of the appropri-
ate court of appeals to satisfy at least one of two conditions
before it may be filed in the district court — specifically, that
it is based on:
(1) newly discovered evidence that, if proven and
viewed in light of the evidence as a whole, would be
sufficient to establish by clear and convincing evi-
dence that no reasonable factfinder would have
found the movant guilty of the offense; or
UNITED STATES v. LOPEZ 9597
(2) a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court,
that was previously unavailable.
§ 2255(h). Thus, if a petitioner seeks to assert a claim that was
not presented in her first habeas application, she must move
for authorization from this court to file a second or successive
application, and the motion will be denied unless it makes a
prima facie showing that it satisfies the requirements of one
of these narrow exceptions. See Cooper, 274 F.3d at 1273;
§ 2255(h); § 2244(a), (b)(3). If the petitioner does not first
obtain our authorization under § 2244(b)(3)(A), the district
court lacks jurisdiction to consider the second or successive
application. See Burton v. Stewart, 549 U.S. 147, 127 S. Ct.
793, 796 (2007) (per curiam).
Lopez argues that although she previously filed a § 2255
motion, her present motion is not second or successive
because she could not have discovered the Brady claim until
after her first habeas motion had already been denied. The
district court agreed with her argument and proceeded to
decide the motion on its merits. Although we understand the
district court’s reluctance to find Lopez’s motion barred as
second or successive when it was the government’s conduct
that created the problem, we conclude that the court erred in
not doing so.
[2] That Lopez did not have the information to formulate
her Brady claim until after her first habeas motion was denied
does not exempt her from fulfilling the prerequisites for a sec-
ond or successive application that Congress has established by
the plain language of § 2255. See Evans v. Smith, 220 F.3d
306, 322-25 (4th Cir. 2000). We therefore hold that Lopez
was required by § 2255(h) to move in this court for an order
authorizing the district court to consider her application,
because she had previously filed a § 2255 motion that was
fully adjudicated on the merits. See Cooper, 274 F.3d at 1274.
In light of Lopez’s failure to do so, the district court lacked
9598 UNITED STATES v. LOPEZ
jurisdiction and should not have considered her motion on the
merits.
III.
[3] Nonetheless, like the district court, given the circum-
stances of this case we are not inclined to allow the govern-
ment in effect to profit from its failure to meet its obligations
under Brady. We therefore construe Lopez’s appeal as a
request that we authorize her to file a second or successive
habeas application. See Cooper, 274 F.3d at 1275; see also
Libby v. Magnusson, 177 F.3d 43, 46 (1st Cir. 1999) (“[N]o
useful purpose would be served by forcing the petitioner to
retreat to square one and wend his way anew through the
jurisdictional maze.”); Felker v. Turpin, 101 F.3d 657, 661-62
(11th Cir. 1996) (per curiam). We must deny her request,
however, because her claim does not fall within the
§ 2255(h)(1) or (2) exceptions.
Lopez’s Brady claim obviously does not rely on “a new
rule of constitutional law, made retroactive to cases on collat-
eral review by the Supreme Court, that was previously
unavailable,” as required by § 2255(h)(2). Rather she must
make a prima facie showing that she meets the requirements
of § 2255(h)(1) by demonstrating “newly discovered evidence
that, if proven and viewed in light of the evidence as a whole,
would be sufficient to establish by clear and convincing evi-
dence that no reasonable factfinder would have found the
movant guilty of the offense.” It is undisputed that the evi-
dence was newly discovered, having been revealed to Lopez
only after her first habeas motion was denied. The question is
whether the negative information about Palmer would, if
proved, be sufficient to establish by clear and convincing evi-
dence that no reasonable factfinder would have found Lopez
guilty of the offense when viewed in light of the evidence as
a whole. See § 2255(h)(1).
UNITED STATES v. LOPEZ 9599
[4] In this case, because Lopez cannot carry the lesser bur-
den of establishing a Brady violation that would entitle Lopez
to habeas relief, had this been Lopez’s first habeas petition,
she cannot carry the greater burden of making a prima facie
case that no reasonable factfinder would have found Lopez
guilty of the offense had the negative information about
Palmer been proven. In determining whether there has been
a Brady violation, we consider whether the suppressed evi-
dence was: (1) favorable to the accused, (2) suppressed by the
government and (3) “material to the guilt or innocence of the
defendant.” United States v. Jernigan, 492 F.3d 1050, 1053
(9th Cir. 2007) (en banc). Here there is no issue as to the first
two prongs, so we look to the materiality of the withheld evi-
dence in determining whether withheld Brady material was
prejudicial. See Hovey v. Ayers, 458 F.3d 892, 916 (9th Cir.
2006). A Brady violation is material when “there is a reason-
able probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been differ-
ent.” United States v. Bagley, 473 U.S. 667, 682 (1985); see
also Kyles v. Whitley, 514 U.S. 419, 434-36 (1995). “A ‘rea-
sonable probability’ of a different result [exists] when the
government’s evidentiary suppression ‘undermines confi-
dence in the outcome of the trial.’ ” Kyles, 514 U.S. at 434(quoting Bagley, 473 U.S. at 678). The materiality of sup-
pressed evidence is considered “collectively” and if material-
ity is established, no further harmless error analysis is
necessary. Id. at 436.2
The government argues that the Bailey memorandum char-
acterizing Palmer as “unreliable” is not material because it
involved inadmissible impeachment evidence. The govern-
2
Habeas relief is usually warranted only if the alleged constitutional
error had a “substantial and injurious effect or influence in determining the
jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (internal
quotation marks omitted). Certain types of claims are analyzed under their
own harmless error standards, however, which makes Brecht analysis
unnecessary. See, e.g., Kyles, 514 U.S. at 435; see also Jackson v. Brown,
513 F.3d 1057, 1070 (9th Cir. 2008).
9600 UNITED STATES v. LOPEZ
ment also argues that even without the Bailey memorandum,
the defense was nevertheless able to cross-examine Palmer
extensively on impeachment and credibility issues, because
they were aware of a past conviction of Palmer’s and that
Palmer had been working with other law enforcement agen-
cies. The government also notes that the district court
instructed the jury that the testimony of an informant should
be examined more carefully than that of a person not paid for
his testimony.
Lopez argues that even though Palmer did not directly tes-
tify against her, the evidence was still material to her case
because of the “spillover” effect of his testimony about her
co-defendants. Lopez also argues that others’ testimony
directly implicating her was subject to doubt because of
Arambula’s admitted drug use.
[5] We are not persuaded there is a reasonable probability
that, had the Palmer evidence been disclosed to the defense,
the result of the trial would have been different. First, assum-
ing the defense was allowed to use the information to impeach
Palmer, his testimony did not directly inculpate Lopez.3 He
did not testify about Lopez at all or about the drug transaction
at issue in Count 5. Thus the weight given his testimony
would not likely have affected the verdict against Lopez
regardless of whether he was impeached as thoroughly as pos-
sible or not. Second, the district court allowed extensive
cross-examination of Palmer that gave the jury information to
appraise his credibility and motivations. Third, even if there
was some kind of spillover effect as Lopez asserts, there was
strong evidence against Lopez on Count 5 in addition to
Arambula’s testimony, including the tape the jury heard
recording Lopez’s participation in the April 18, 2002 drug
transaction, supported by Agent Beaumont’s testimony. Con-
3
As the Heit case illustrates, the Bailey memorandum or its contents
might not have been allowed as impeachment evidence even if the govern-
ment had disclosed the Palmer information to defense counsel before trial.
UNITED STATES v. LOPEZ 9601
sequently, although the prosecution erred in failing to disclose
the adverse information about Palmer during Lopez’s trial,
that alone does not undermine our confidence in the outcome
of the trial.
[6] Because Lopez has not shown that “admission of the
suppressed evidence would have created a reasonable proba-
bility of a different result,” Jernigan, 492 F.3d at 1053 (inter-
nal quotation marks omitted), Lopez has not established the
existence of such a Brady violation that warrants habeas
relief, had this been Lopez’s first habeas petition. Therefore,
Lopez cannot meet the higher threshold required by
§ 2255(h)(1) of showing that the Brady material, “if proven
and viewed in light of the evidence as a whole, would be suf-
ficient to establish by clear and convincing evidence that no
reasonable factfinder would have found the movant guilty of
the offense.” We therefore decline to certify her request for
authorization to file a second or successive habeas applica-
tion.
IV.
Finally, Lopez argues that the government’s conduct in
failing to disclose the Palmer information was “so grossly
shocking and so outrageous as to violate the universal sense
of justice,” United States v. Restrepo, 930 F.2d 705, 712 (9th
Cir. 1991) (internal quotation marks and citations omitted),
thus violating due process and warranting outright dismissal
of the indictment, see United States v. Kojayan, 8 F.3d 1315,
1324-25 (9th Cir. 1993). We have already expressed our con-
cerns about the government’s failure to discover and disclose
the information in a timely fashion, but the circumstances cer-
tainly do not rise to the level of outrageousness. There is no
evidence that the government wilfully withheld the Brady
material, lied about such material or was unwilling to own up
to the mistake once discovered. See id.; see also United States
v. Kearns, 5 F.3d 1251, 1253-54 (9th Cir. 1993). Lopez’s
claim certainly does not satisfy the requirements of
9602 UNITED STATES v. LOPEZ
§ 2255(h)(1) or (2), and so does not provide an independent
basis for certifying her request for authorization to file a sec-
ond or successive habeas application. Moreover, as we have
shown, Lopez ultimately was not prejudiced. Thus exercise of
the court’s supervisory powers to dismiss the indictment is
not warranted, even if we could certify Lopez’s request to file
a successive habeas petition, and even assuming the district
court could invoke such powers which are “not typically con-
sidered to be an independent basis for post-conviction
review.” See United States v. Ross, 372 F.3d 1097, 1107,
1110 (9th Cir. 2004) (“Because no government misconduct
prejudiced [defendant], dismissal of the indictment is not war-
ranted.”); see also United States v. Owen, 580 F.2d 365, 367
(9th Cir. 1978) (concluding district court did not err in deny-
ing motion to dismiss the indictment where defendant showed
no prejudice).
Although we find it troubling that the government’s failure
to disclose the Bailey memorandum to Lopez earlier had the
effect of imposing on her the burdens of complying with
§§ 2244 and 2255, particularly the strict standards governing
second or successive habeas applications, there is no evidence
that the prosecutors here were pursuing a strategy to put her
in such an unfavorable position. Were there such evidence,
this would be a different case.
V.
For the reasons stated, we VACATE the district court’s
order denying Lopez’s motion, and REMAND with instruc-
tions to dismiss for lack of jurisdiction. Lopez’s appeal, con-
strued as a motion for authorization to file a second or
successive application, is DENIED.