United States v. Daaiyah Pasha , 797 F.3d 1122 ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 4, 2015 Decided August 14, 2015
No. 13-3024
No. 13-3025
No. 13-3028
UNITED STATES OF AMERICA,
APPELLEE
v.
DAAIYAH PASHA, ALSO KNOWN AS MS. DEE,
IMAN PASHA, ALSO KNOWN AS KK,
CHARLES F. DAUM,
APPELLANTS
Appeals from the United States District Court
for the District of Columbia
(No. 1:11-cr-00102-2)
(No. 1:11-cr-00102-3)
(No. 1:11-cr-00102-1)
Megan L. Rodgers argued the cause for appellant Charles
F. Daum. With her on the briefs were Seth A. Tucker,
appointed by the court, and Christopher P. Nofal.
Brian P. Morrissey, Jr. argued the cause for appellant
Iman Pasha. With him on the briefs were Jeffrey T. Green,
appointed by the court, and Benjamin B. Glerum.
2
K. Winn Allen argued the cause for appellant Daaiyah
Pasha. With him on the briefs was Susan M. Davies,
appointed by the court.
Kirby A. Heller, Attorney, U.S. Department of Justice,
argued the cause and filed the brief for appellee. Elizabeth
Trosman, Assistant U.S. Attorney, entered an appearance.
Before: ROGERS, GRIFFITH and WILKINS, Circuit Judges.
Opinion for the Court filed by Circuit Judge WILKINS.
WILKINS, Circuit Judge: In multiple respects, these
appeals concern the duties owed to the court by lawyers and
their legal teams.
Appellants are a criminal defense attorney and two legal
investigators who were convicted in 2012 of breaching those
duties by fabricating evidence and suborning perjury during a
2008 trial in which they represented another individual as
defendant. Such conduct tears at the fabric of our system of
laws.
But these appeals challenge prosecutorial misconduct that
is likewise inimical to justice. Specifically, two Appellants
argue for reversal of their convictions based on the
Government’s undisputed breach of its obligation to timely
turn over exculpatory evidence. See Brady v. Maryland, 373
U.S. 83 (1963). We agree with Appellant Daaiyah Pasha that
but for the Brady deficiency, there is a reasonable probability
of a different outcome in her case. We therefore direct a new
trial for Daaiyah Pasha, with appropriate remedies to cure the
damage caused by the Government’s delayed disclosure.
3
We do not, however, agree with Appellants Charles
Daum and Iman Pasha on the challenges they raise, and so we
affirm their convictions.
I.
In April 2008, Appellant Charles Daum was retained as
defense counsel by Delante White, who had been indicted on
cocaine distribution charges. In September 2008, Daum
represented White at a trial in the United States District Court
for the District of Columbia that resulted in a hung jury.
Daum was assisted in this representation by Appellants Iman
Pasha and Daaiyah Pasha as non-attorney investigators. 1
Daaiyah, a woman now in her early sixties, is Iman’s mother.
In January 2009, the district court hearing the case
against White granted Daum’s motion to withdraw as counsel
based on threats made by White against Daum. A
superseding indictment added new defendants and new
charges, and White and others subsequently pled guilty to the
cocaine-related charges and to witness tampering and
obstruction of an official proceeding in connection with the
original trial.
Following a two-year investigation, the Government
charged Daum, Iman, and Daaiyah with conspiracy to
obstruct justice; Daum alone was also charged with witness
tampering, fabricating evidence, and suborning perjury in the
2008 trial. The factual crux of the allegation was that
Appellants had staged a photo shoot a few weeks before the
trial to support a defense that key evidence attributed to
Delante White actually belonged to his brother Jerome White.
1
We will refer to Iman and Daaiyah Pasha by their first names in
this opinion in order to distinguish them from each other.
4
The Government alleged that Daum had masterminded the
scheme and that Iman and Daaiyah had carried out the photo
shoot on September 12, 2008, in the home of Cheryl White,
who is the mother of Delante White and his siblings Jerome
and Christopher. In its findings of fact, the District Court
explained the photo shoot scheme as follows:
In preparation for Delante’s trial, Daum developed a plan
to prove to a jury Delante’s claim that the drugs found at
his grandmother’s – Evelyn Clowney’s – house belonged
to his younger brother Jerome. In order to carry out this
plan, Daum entered into a conspiracy in which he
directed, in various ways, Daaiyah and Iman Pasha and
Jerome and [Delante White’s girlfriend] Candice to set
up a photo shoot to take pictures that showed Jerome
cutting up what appeared to be crack cocaine with what
appeared to be the items recovered from Evelyn
Clowney’s apartment in plain view. The purpose of
these staged photographs was to introduce them as
evidence at Delante’s trial in an effort to make the jury
think that all of the items found at Evelyn Clowney’s
apartment, including the cocaine, actually belonged to
Jerome. Daum assured Jerome, Christopher, and
Candice, that they would not get in trouble for this plan,
and were protected under a legal theory called “double
jeopardy.”
Both of the substantial legal issues raised in these appeals
arise from a pretrial motions hearing that took place on April
19, 2012, and was attended by all Defendants and their
counsel. At the outset of that hearing, the District Judge
announced that she would address two motions and discuss
trial procedures for an expected trial start a week and a half
later.
5
Before the Judge began to speak to those points,
however, Daaiyah’s lawyer informed the District Court that
the three Defendants were waiving their rights to jury trial and
requesting the Government’s consent to try the case to the
District Court. He explained that Defendants were only
telling the District Court at such a late juncture because “this
was a decision that was back and forth from last month.”
Daum’s counsel added a similar statement, saying that “the
decision was made recently with very fulsome discussions
between the defense lawyers and their clients.” He also
represented that the Government had not previously been
informed of the waiver offer and that “obviously we would
expect that they might need some time before they can
respond.” The Judge noted that the Government was likely as
surprised by the offer as she was, telling the Assistant U.S.
Attorney: “It took me back. It will take you back I assume.”
And the Judge allowed the Government some time to decide
whether to accept the offer of jury trial waiver. The Judge
then proceeded to describe jury selection plans in case the
waiver offer was not accepted.
On April 24, 2012, the Government filed a written
acceptance of Defendants’ offer to waive jury trial. On April
25, Defendants filed three waivers of trial by jury, one
executed by each Defendant.
The April 19 hearing also addressed a motion by
Daaiyah’s lawyer to compel production of Brady material.
More than eight months earlier, on July 11, 2011, the
Government had interviewed Everett Montgomery, the
boyfriend of Cheryl White (at whose home the photo shoot
was staged). Montgomery said that on the day of the photo
shoot, he was present and saw a man and a woman in her mid-
thirties enter the apartment carrying balloons, which were a
key prop featured in the fabricated photos taken that evening.
6
The Government did not disclose Montgomery’s statements
to the defense until April 5, 2012, over eight months after the
interview and just a few weeks before the trial. The Assistant
U.S. Attorney trying the case, who had been present
personally at the 2011 interview, acknowledged to the District
Court that he had violated Department of Justice policy to
provide Brady information as soon as he became aware of it.
He also reported that the Government had recently re-
interviewed Montgomery, who had changed his story and
now said that instead of one man and one woman, he had
observed two women come into his apartment on the relevant
evening.
To clarify the critical timeline: The Government’s original
interview with Montgomery took place on July 11, 2011. On
April 5, 2012, the Government disclosed Montgomery’s
exculpatory statement to defense counsel. Daaiyah’s lawyer
told the District Court that this caused him to “stop[] trial
preparation and spen[d] the next five days trying to locate Mr.
Montgomery,” at which time (that is, on April 10, 2012)
Montgomery told the defense team that he had seen a man
and a woman enter his apartment on September 12, 2008, the
night of the photo shoot. On April 11, 2012, the day after
defense counsel had first interviewed Montgomery,
prosecutors met with Montgomery at the U.S. Attorney’s
office. They reported that at that meeting Montgomery said
he saw “two women enter his apartment, both of whom were
in their thirties or forties.” On April 16, 2012 – three days
before the key pretrial hearing described above – defense
counsel again met with Montgomery, who “reaffirmed that he
saw a man and a woman enter his apartment on September 12,
2008.”
After hearing argument at the pretrial hearing, the District
Court announced that “there is not the slightest doubt that the
7
Government committed a Brady violation.” It also concluded
that there was “very real prejudice” because memories fade in
eight months and the defense had lost the opportunity to get a
fresher recollection on the record. And it invited Defendants
to submit requests for sanctions.
On April 30, 2012, Defendants filed a written motion to
dismiss the indictment or, in the alternative, to preclude the
Government from introducing any testimony regarding events
at the photo shoot. The District Court held an on-the-record
phone conference the next morning, on May 1, 2012, and told
the parties that “a final decision on these motions can occur
certainly after trial, given what the defense is requesting in
terms of its motion.” The Court accordingly reserved
judgment on sanctions, ordering the Government to respond
in writing within 15 days after rendering of a verdict.
A month-long bench trial began on May 7, 2012. The
principal evidence presented regarding the participation of
Iman and Daaiyah in the photo shoot included:
• Testimony by Delante White’s girlfriend, Candice
Robertson, that both Iman and Daaiyah were
present. She testified that Iman “took [most] of
the pictures and [Daaiyah] staged the scene.” She
also testified that both Iman and Daaiyah had been
present at a meeting in Daum’s office earlier in the
day to plan the photo shoot. And she testified that
she had paid Iman $200 for the photo shoot and
$50 to have the photos developed without date
stamps.
• Testimony by Delante White’s brother, Jerome
White, that both Iman and Daaiyah were present at
the photo shoot.
8
• Testimony by Jerome White’s girlfriend, Brittany
McDaniels, that she had witnessed two female
investigators arriving at the photo shoot, but that
Daaiyah was not one of those women.
Defendants subpoenaed Montgomery to testify at trial,
and he complied and appeared in the courthouse ready to be
called. Defendants asked the District Court mid-trial to
preclude the Government from cross-examining Montgomery
as a Brady sanction, and the District Court denied the request.
Indeed, the District Court rejected the proposal out of hand,
stating: “[T]here’s absolutely no case law supporting such a
drastic, draconian way of dealing with the problem in
mitigating any prejudice.”
After this ruling, the defense did not call Montgomery.
The trial concluded, and on June 22, 2012, the District Court
announced and filed its verdict, finding Defendants guilty on
all counts except one (Daum was found not guilty of Count V,
tampering with a witness).
Pursuant to the District Court’s pretrial order, the
Government responded post-verdict to the Pasha Defendants’
written motion to dismiss the indictment as a Brady sanction.
In an Order dated August 20, 2012, the District Court denied
the motion as a result of finding no prejudice caused by the
Government’s Brady failure. The District Court explained:
“Having heard all the evidence in this case, the Court now
concludes that the Defendants cannot meet their burden of
showing a reasonable probability of a different outcome.”
The District Court sentenced Defendants on March 12,
2013, to 63 months imprisonment (Daum), three years of
9
probation (Iman), and three months of imprisonment
(Daaiyah). 2 Each Defendant filed a timely notice of appeal.
II.
We first analyze challenges raised by each Appellant to
the validity of his or her waiver of right to trial by jury. Then,
we turn to challenges raised by Daum to the District Court’s
construction of the offenses. Finally, we examine the Brady
failures that create the most difficult issues in this appeal.
A.
Appellants contend – for different reasons – that their
waivers of right to jury trial were ineffective. Our precedents
clearly identify the test – sufficient basis – for determining
whether a district court’s acceptance of a jury trial waiver in
the first instance was in error. United States v. David, 511
F.2d 355, 362-63 (D.C. Cir. 1975). That is, we ask whether
or not the district court had sufficient basis for determining
the validity of each waiver, id., and we think this District
Court had sufficient basis in each instance here. As to
challenges to the validity of jury trial waivers based on later-
raised evidence, none of the Appellants has alleged or
presented adequate evidence of harm. 3
2
The Government notes that Iman’s probation was subsequently
revoked, and the District Court remanded her to one year
imprisonment.
3
The parties sharply dispute whether a jury trial waiver challenge
not raised in the district court is subject to de novo or plain error
review. We need not resolve that issue here because Defendants’
challenges are so plainly lacking in merit that they would fail no
matter the standard we apply. We also note that the key cases cited
by the Government for the proposition that challenges to the
validity of a jury trial waiver should be reviewed for plain error
10
As a starting point on the proceedings in this case, we
observe there is no dispute that each waiver complied with all
requirements of Rule 23(a), that is: (1) the Defendants waived
jury trial in writing; (2) the Government consented; and (3)
the court approved. See FED. R. CRIM. P. 23(a). Appellants
can claim no violation of the rules, and they argue instead that
their Due Process rights have been violated.
To support their claims, Appellants point to the
Benchbook for U.S. District Court Judges, which
recommends that judges always conduct an oral colloquy and
provides suggested questions for use in doing so. See
FEDERAL JUDICIAL CENTER, BENCHBOOK FOR U.S. DISTRICT
COURT JUDGES 33-35 (6th ed. 2013). But the Benchbook is
merely a training manual and compendium of advice, and it is
neither binding nor itself a statement of judicial policy. Id. at
ii; see also United States v. Jones, 421 F.3d 359, 363 (5th Cir.
2005) (explaining that although the Benchbook provides a
guide to questions at a colloquy, it is not a “sacrosanct
litany”). To be sure, the Benchbook captures the best practice
on this issue. As we said in David, “many courts – including
our own – have indicated that trial judges would be well-
advised to directly question the defendant in all cases to
determine the validity of any proffered waiver of jury trial.”
511 F.2d at 361.
Best practice notwithstanding, this District Court had the
sufficient basis we must look for under David in reviewing
deal with claims that Rule 23(a) was violated, not that a defendant’s
underlying constitutional right was violated. See United States v.
Williams, 559 F.3d 607, 610 (7th Cir. 2009) (stating that “lack of a
written waiver by Williams was a violation of Rule 23(a)”); United
States v. Carmenate, 544 F.3d 105, 108 (2d Cir. 2008) (“[T]he
defendant failed to sign a written waiver pursuant to Rule 23(a)(1)
of the Federal Rules of Criminal Procedure.”).
11
each determination that a waiver was valid. See id. at 362.
With all attorneys and Defendants present, experienced
defense counsel represented that the waiver decisions had
been reached after “very fulsome discussions between the
defense lawyers and their clients” that had been “back and
forth from last month.” The written waivers were substantive
and addressed most of the issues recommended by the
Benchbook, well beyond what is required by Rule 23(a)(1). 4
4
Daum’s jury waiver stated:
Defendant Charles Daum, through counsel, respectfully
informs this Court that pursuant to Fed. R. Crim. P. 23 he
wishes to waive his right to a trial by jury in this matter and
wishes to have this case tried to the Court.
Mr. Daum understands that he has by Court Rule and by
the United States Constitution the right to have the case
decided by 12 jurors. He further understands that he would be
permitted to participate in the jury selection process with his
counsel. He further understands that for good cause his
counsel could argue that prospective jurors who do not
demonstrate impartiality after questioning by the Court could
be excused by the Court. Additionally, Mr. Daum understands
that based on FED. R. CRIM. P. 24 he would be able to exercise
through his own counsel and counsel for the co-defendants ten
peremptory challenges, which is his right, to strike any juror
for any reason other than those not permitted by the court. Mr.
Daum further understands that after the jury is selected the
jurors would be instructed by the court to base their decision
on the evidence in the case with regard to only his culpability.
Additionally, the jury would be instructed that any verdict on
any count with regards to any defendant must be unanimous.
Knowing all this and after full discussion with his counsel
he knowingly and voluntarily waives his right to a jury trial in
the above captioned case and desires to be tried by the court.
I have read and consent to the above, [signed] Charles
Daum.
Daaiyah and Iman simultaneously submitted materially identical
waivers.
12
Although we reaffirm that conducting a colloquy on jury trial
waiver is always well advised, a colloquy was not necessary
to comply with Rule 23(a) in these circumstances.
To satisfy Due Process, a defendant waiving the right to
trial by jury must do so knowingly and intelligently. David,
511 F.2d at 361; see also Carmenate, 544 F.3d at 108 (stating
that what “the Constitution requires is that a waiver of the
right to a jury trial be knowing, voluntary, and intelligent”).
Although a Rule 23(a)(1) written waiver is not conclusive
proof that this requirement has been satisfied, we have treated
it as at least a rebuttable presumption. Compare United States
v. Lawson, 682 F.2d 1012, 1016 (D.C. Cir. 1982) (dismissing
attack on the validity of jury trial waiver based on
conformance with Rule 23(a)(1)), with David, 511 F.2d at 361(holding that Rule 23(a) written waiver is inadequate “where
circumstances cast doubt on the validity of a given waiver”).
None of the Appellants successfully rebuts the presumption.
Daum contends that medical issues contained in his
presentence report, a document prepared only after the trial,
create the same kind of special circumstance defeating the
presumption as we found in David, where the defendant’s
counsel expressed serious misgivings at the outset about his
client’s competency to stand trial and the district court had
before it conflicting reports from psychiatrists on that point.
See 511 F.2d at 358. But as Daum’s counsel repeatedly
acknowledged at argument before us, there was nothing in the
record indicating any issue at the time the District Court
accepted his waiver. Here, Daum himself was an experienced
defense lawyer, represented by another experienced defense
lawyer, who submitted a detailed waiver statement well
beyond that required by the rule. Under these circumstances,
13
we cannot find that the District Court lacked “sufficient basis”
to accept the waiver. 5
Iman and Daaiyah have somewhat better arguments,
contending that the multi-defendant context creates a David
circumstance that requires a colloquy. 6 They tell us that the
District Court had an obligation to assess whether each
Defendant understood that she could not be outvoted by her
co-Defendants. And they would have us decide that the
multi-defendant context always requires an oral colloquy. Cf.
United States v. Duarte-Higareda, 113 F.3d 1000, 1003 (9th
Cir. 1997) (requiring oral colloquy on jury trial waiver for any
defendant who has used a language interpreter yet submits a
written waiver only in English).
Although we agree that the multi-defendant context calls
for yet stronger urging that district courts conduct an oral
colloquy on jury waivers in every case, we disagree that a per
se rule is required. Neither Iman nor Daaiyah has asserted
5
Daum seeks to draw on medical issues discussed in his
presentence report and on a prescription medication label submitted
as a sealed attachment to his reply brief in this appeal. Even
assuming there is a circumstance in which later-created records
could vitiate a jury waiver that a district court had substantial basis
for accepting at the time of submission, we need not decide the
question in this case because Daum has not alleged that his waiver
was not in fact knowing and voluntary, nor has he pointed to
enough evidence to overcome the presumption created by his
written waiver that it was.
6
Iman raises the additional arguments that her attorney, although
present, did not speak at the hearing in which counsel for co-
Defendants made representations on her behalf, and also that her
written waiver was electronically filed by counsel for a co-
Defendant. Where, as here, there has been no suggestion that a
defendant’s lawyer was deficient in any way, we decline to read
anything into either of these facts of the proceeding.
14
that an oral colloquy would have made a difference to her
waiver decision. Neither Iman nor Daaiyah has even argued
that she in fact lacked understanding of her right to jury trial
or that but for the trial court’s failure to ensure she had that
understanding there is a reasonable probability she would not
have waived the right.
In sum, Appellants have not submitted persuasive
evidence that any of them lacked ability to consent, lacked
actual consent, or would have made a different decision on
whether to waive the right to jury trial if there had been an
oral colloquy. Absent such evidence or allegations and given
that the procedure used by the District Court complied with
Rule 23(a), it is an inescapable conclusion that Appellants are
merely seeking a second bite at the trial apple. We see no
basis in this issue for granting one.
B.
Daum next asks us to reverse certain convictions based
on what he claims were two legal errors by the District Court
in construing the scienter requirements of the charges against
him. He hinges these challenges on a statement by the
District Court that “we do not know what Defendant Daum’s
motive could have been.” In the context of the opinion, this is
a comment on the expressly-asked rhetorical question of “why
in the world would an experienced, long-time defense
attorney engage in such nefarious conduct?” The District
Court explained that the question applied with even greater
force because this was a representation for which Daum had
charged a “paltry $12,000” for trial and retrial. Daum now
argues this reflects a failure by the District Court to find: (1)
corrupt motive required on the obstruction of justice charge,
and (2) willfulness required on the subornation of perjury
charge. These arguments conflate the abstract question of
15
“why the defendant did it” with the specific intent
requirements of the charges in this case.
Given that Daum did not object on these issues below, we
examine them only for plain error. See United States v.
Purvis, 706 F.3d 520, 522 (D.C. Cir. 2013). Daum has failed
to identify any plain error here.
First, Daum challenges his conviction for obstruction of
justice on the basis that the District Court erred in concluding
that motive is not an element of the crime. 7 The statute
prohibits “corruptly . . . endeavor[ing] to influence, obstruct,
or impede, the due administration of justice.” 18 U.S.C.
§ 1503. Daum contends that “corruptly” means having a
“corrupt motive,” and that as a factual matter he lacked one
because he was motivated by fear of his client. Daum points
to United States v. Haldeman to support his theory, but that
case simply explained that “corruptly” meant having an evil
purpose or intent. 559 F.2d 31, 115 n.229 (D.C. Cir. 1976)
(en banc) (per curiam). In Haldeman, we upheld a ruling that
the jury had to be convinced the relevant defendant “made
some effort to impede or obstruct” the Watergate
investigation or the resulting trial. Id. Haldeman does not,
however, support the notion that special consideration is due a
defendant “whose hope is to avoid obstructing justice while
the natural consequence of success in his endeavor would be
to achieve precisely the opposite result.” United States v.
Neiswender, 590 F.2d 1269, 1273 (4th Cir. 1979). Instead,
“the defendant need only have had knowledge or notice that
success in his fraud would have likely resulted in an
obstruction of justice.” Id.; see also United States v. North,
910 F.2d 843, 882 (D.C. Cir. 1990), opinion withdrawn and
superseded in other part on reh’g, 920 F.2d 940 (D.C. Cir.
7
Iman joined this argument without elaboration in her brief.
16
1990) (explaining that a person acts “corruptly” when taking
action with “‘the intent to obtain an improper advantage for
[one]self or someone else, inconsistent with official duty and
the rights of others’”) (quoting BALLENTINE’S LAW
DICTIONARY 276 (3d ed. 1969) (alteration in original). The
District Court found that Daum developed and directed a
scheme to defraud a federal criminal trial. It was not plain
error to conclude that this satisfied the statutory requirement
that he acted “corruptly.”
Daum also challenges his two subornation of perjury
convictions on the basis that the District Court omitted a
required element of “willfulness.” The statute defining the
crime states: “Whoever procures another to commit any
perjury is guilty of subornation of perjury, and shall be fined
under this title or imprisoned not more than five years, or
both.” 18 U.S.C. § 1622. Daum argues that the statute
incorporates a willfulness requirement and that “willfulness”
in this context should mean “voluntary, intentional violation
of a known legal duty.” See Cheek v. United States, 498 U.S.
192, 200 (1991) (quoting United States v. Bishop, 412 U.S.
346, 360 (1973)). The Government responds that Cheek
applies only to “highly technical statutes that present[] the
danger of ensnaring individuals engaged in apparently
innocent conduct,” Bryan v. United States, 524 U.S. 184, 194
(1998), and so Daum’s reliance on it is misplaced. As the
Government notes, however, the District Court made findings
of fact that would satisfy even the Cheek standard of requisite
intent. Among findings relevant to this Count (Count VI) was
that Daum “instructed Christopher White to perjure himself
and say that he took the photos.” Given Daum’s experience
and role as a criminal defense attorney, this finding suffices –
particularly under the plain error standard – to support a
conclusion that Daum meant for White to break the law.
17
Daum tells us reversal of his convictions is further
warranted because “there is substantial evidence that [he] was
under duress, or in fear for his safety, because on at least one
occasion before the trial began, Delante White threatened
[Daum’s] life if he did not win an acquittal.” As we
understand it, Daum would have us read this into his element-
of-the-offense arguments in a manner that puts the burden of
proof on the Government to show that Daum was not acting
under duress. But duress is an affirmative defense, and it is a
defendant’s burden to demonstrate it at trial. See Dixon v.
United States, 548 U.S. 1, 17 (2006); United States v. Nwoye,
663 F.3d 460, 462 (D.C. Cir. 2011); Model Penal Code
§ 2.09. Daum did not attempt to present a duress claim before
the District Court and now has cited nothing in the record
showing that he drew the District Court’s attention to Delante
White’s alleged threat. There was therefore no plain error in
the lack of consideration the District Court gave to such
evidence.
C.
Finally, we turn to Iman’s and Daaiyah’s contentions that
they were prejudiced by the Government’s failure to timely
turn over exculpatory evidence. A Brady violation has three
components: “[1] The evidence at issue must be favorable to
the accused . . . ; [2] that evidence must have been suppressed
by the State, either willfully or inadvertently; and
[3] prejudice must have ensued.” Strickler v. Greene, 527
U.S. 263, 281-82 (1999); see also United States v. Johnson,
519 F.3d 478, 488 (D.C. Cir. 2008).
The first two components of a Brady violation are
certainly present here. A prosecutor in this case was
personally present at an interview in which a witness gave a
scene-of-the-crime account that, if credited, would contradict
18
the identity of at least one of the Pasha Defendants in this
case. The prosecutor waited over eight months until the eve
of trial to reveal this information. As the District Court
explained, this delay was inexcusable: At the moment the
eyewitness said the two individuals who arrived at the photo
shoot were a man and a woman (rather than two women),
“counsel for the Government should have understood that as
soon as they were finished talking with that gentleman, they
had an obligation to give that information to the defense.” 8
So the question we must resolve regards the third
component of a Brady violation: that is, whether any
Defendant was prejudiced by the Government’s failure to
comply with its duty. We must answer in the affirmative if
we find “a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would
have been different.” Strickler, 527 U.S. at 280 (internal
quotation mark omitted). “The defendant bears the burden of
showing a reasonable probability of a different outcome.”
Johnson, 519 U.S. at 488. But a reasonable probability does
not require a showing that it is more likely than not that the
defendant would have been acquitted had the evidence been
disclosed. United States v. Johnson, 592 F.3d 164, 170 (D.C.
Cir. 2010). Instead, “[a] ‘probability’ reaches the level of
‘reasonable’ when it is high enough to ‘undermine confidence
8
The District Court denied as moot a separate sanctions motion
related to a would-be Brady violation in connection with the count
on which Daum was found not guilty. J.A. 98. Referencing that
failure to comply with Brady obligations had more than once been a
problem in this case, the District Court chastised the prosecutors
with respect to the failure to turn over the exculpatory evidence at
issue in this appeal: “What is particularly troubling is that this is the
second time in this case that the Government has withheld
significant Brady information for an extended period of time.
When is the Government going to learn?”
19
in the verdict.’” Id. (quoting Kyles v. Whitley, 514 U.S. 419,
435 (1995)).
1.
We review de novo the prejudice determination made by
the District Court, considering directly “any adverse effect
that the prosecutor’s failure . . . might have had on the
preparation or presentation of the defendant’s case.” United
States v. Bagley, 473 U.S. 667, 683 (1985); see also In re
Sealed Case No. 99-3096, 185 F.3d 887, 892 (D.C. Cir.
1999). This remains true even where, as here, the factfinder
was the judge who made the original prejudice determination.
See Bagley, 473 U.S. at 672 (noting that the original
proceeding was bench trial).
Not surprisingly, the Government urges deference to the
District Court’s finding of non-prejudice. It cites our
observation in a prior case that “[t]he district judge is, of
course, best suited to evaluate the significance of the
undisclosed material.” United States v. Jenrette, 744 F.2d
817, 825 (D.C. Cir. 1984). The Government reasons that this
analysis applies with even greater force in a bench trial where
the District Court is uniquely positioned to determine the
effect of particular evidence on its own verdict. To the extent
Jenrette’s observation survives the Supreme Court’s decision
in Bagley, however, it does not factor in our analysis here.
The District Court noted that it would have reached a guilty
verdict as to each of Iman and Daaiyah based on “all the other
evidence upon which the Court relied in its final verdict.” But
our role is not to conduct “a sufficiency of the evidence test,”
asking whether the District Court’s conclusion about a
hypothetical trial absent the Government’s Brady omission
was supportable. See Kyles, 514 U.S. at 434 (“Bagley
materiality . . . is not a sufficiency of evidence test.”).
20
Instead, we ask whether “there is a reasonable probability
that, had the evidence been disclosed to the defense, the result
of the proceeding would have been different” for a generic
factfinder who has not already reached a determination of
guilt beyond a reasonable doubt, accounting for how the
defense may have changed its preparation or presentation if
the exculpatory material had been disclosed in a timely
manner. Bagley, 473 U.S. at 682.
2.
It is uncontested here that the photo shoot to fabricate
evidence for Delante White’s trial took place on September
12, 2008, at the home of Delante White’s mother, Cheryl
White. The direct evidence of Iman’s and Daaiyah’s
involvement in the criminal events that evening is, however,
limited. In short, two participants in the photo shoot placed
both Iman and Daaiyah at the scene while a third said that
although two women working as investigators for Daum had
been present, Daaiyah was not one of them. All of the
eyewitnesses had grave credibility problems.
Candice Robertson, Delante White’s girlfriend, testified
that Iman “took [most] of the pictures and [Daaiyah] staged
the scene.” The District Court found, however, that
Robertson “was a total disaster as a witness” who “could not
give a straight answer to any question; . . . could not give the
same answer to any question when that question was asked
more than once; . . . [and] changed her testimony so many
times about so many things that it was almost sad to watch
her.” She also received a favorable plea bargain for her
testimony in this case.
Jerome White, Delante White’s brother, testified that
both Iman and Daaiyah were present at the photo shoot. The
21
District Court found, however, that Jerome White “was a
hesitant, reluctant witness, who was not at all forthcoming in
his responses to questions” and that “[t]here were times he
seemed barely awake on the stand and . . . could not keep his
eyes open.” He testified that “he lived his life in order to stay
high 24 hours a day” on drugs and alcohol and that “because
of the enormous amount of marijuana he had smoked, his
long-term memory was not good.” He, too, received a
favorable plea bargain for his testimony in this case.
Brittany McDaniels, Jerome White’s girlfriend, testified
that although she had seen two women arrive at the photo
shoot whom she took to be Daum’s investigators, Daaiyah
was not one of those women. McDaniels was given a no-
prosecution agreement in exchange for her testimony.
This is not much in the way of direct evidence. 9 Had
Everett Montgomery testified along the lines of his initial
9
Although the evidence was not overwhelming, particularly against
Daaiyah, it was still well clear of the bar for the sufficiency of
evidence challenge that Iman and Daaiyah raise as an alternative
basis for vacating their convictions. The standard for such
challenges is very high. See United States v. Mellen, 393 F.3d 175,
180-81 (D.C. Cir. 2004) (stating that on appeal for sufficiency of
the evidence, all evidence is reviewed in light most favorable to the
Government and the conviction must be affirmed if any rational
trier of fact could have found guilt beyond a reasonable doubt).
“[F]ull play” is due the factfinder in determining credibility,
weighing evidence, and drawing justifiable inferences. United
States v. Hall, 613 F.3d 249, 252 (D.C. Cir. 2010). Iman and
Daaiyah have “not establish[ed] that it was implausible for the
district court to credit particular . . . testimony,” United States v.
Jones, 744 F.3d 1362, 1367 (D.C. Cir.), cert. denied 135 S. Ct. 8(2014), given that other evidence supported their convictions. To
the extent Daaiyah distinguishes Jones on the ground that the
inability of Jerome and Candice “to tell a consistent story about
22
interview, the scorecard would have been two eyewitnesses
who placed Daaiyah at the scene and two eyewitnesses whose
testimony excluded her. The math would be less favorable
for Iman, because Brittany McDaniels did not rule out her
participation and because it is more likely that a factfinder
could think Montgomery’s original description of a man and a
woman in her mid-thirties to mid-forties might include
Iman. 10 The District Court did note that had Montgomery
testified, he likely would have had credibility problems, as “a
number of witnesses testified to the fact that Mr. Montgomery
was very inebriated at the time of the photo staging, . . . that
he stayed in his bedroom most of the time, and that he slept
during much of the time.” But even assuming that we may
consider those factors without knowing what Montgomery
himself would have said about them, it takes no stretch of the
imagination to think Montgomery might have been at least as
credible to a reasonable factfinder as the District Court found
Candice Robertson to be – that is, barely credible at all.
The Government also argues that Montgomery’s memory
was not fresh when the prosecution originally interviewed
him in July 2011, nearly three years after the night of the
photo shoot, and that the additional eight-month delay before
the defense was notified of his initial statement could not have
Daaiyah’s supposed participation in the photo shoot goes directly to
Daaiyah’s conviction, not to their general credibility,” Reply Br. 5,
this ignores other evidence on which the District Court properly
relied, which, as noted, did not need to be overwhelming.
10
Although the parties did not clearly indicate the age of either
Iman or Daaiyah, the district court records indicate that Iman was
29 years old and Daaiyah was 58 years old at the time of the photo
shoot in September 2008. We note also the District Court’s
apparent conclusion at the April 19 pretrial conference that
whatever Montgomery’s original description was, it was not
categorically inconsistent with Iman’s appearance.
23
made much difference. It contends that the best framework
for thinking about possible prejudice is whether the difference
between an interview thirty-six months after the photo shoot
and forty-five months after the photo shoot could have
mattered.
We disagree with the Government’s proposed analysis
for two reasons. First, because Montgomery himself said the
additional time lapse made a difference. Defendants
submitted a declaration from him stating: “If you talked to me
last year I would have been able to tell you more.” Second,
both Daaiyah’s trial counsel and the District Court explained
just what a difference the delay might have made. Daaiyah’s
counsel told the District Court:
Had I known [at the time the Government initially
interviewed Montgomery], I would have [gone] to this
person. I wouldn’t have taken a statement from him. I
would have gotten a Court Reporter and got it under oath.
That’s how critical this person is to my case. So when
this person comes to testify and the Government cross-
examines him and says, didn’t you say X, I can
rehabilitate him with sworn testimony which goes to the
jury, as the Court knows, under the rules not as a prior
consistent statement that we rehabilitated him for
impeachment purposes, but it goes to the jury as
substantive evidence for the truth because I had it under
oath and it is the truth of it . . . .
The District Court evidently agreed:
[T]he prejudice here was very substantial. If defense
counsel had been able [] to get to Mr. Montgomery, and I
have a feeling with that kind of an exculpatory statement
they would have done their best to get to him as fast as
24
possible, then at that point, they could have followed up
with Mr. Montgomery. They could certainly have gotten
a written statement from him, and they certainly if they
wanted to could have gotten a statement under oath from
him and if that statement was not favorable, too bad for
the defense.
The great difficulty, as the District Court noted, is that
“[w]e will never know whether that statement would have
been favorable or unfavorable.” But because it was the
Government that failed to comply with its Brady obligations,
this uncertainty must be charged to the Government’s case.
All this plays out differently as to the two Appellants
raising the Brady claim.
First, as to Iman: It is doubtful just how exculpatory
Montgomery’s hypothetical testimony could have been for
her (that is, the testimony Montgomery would have given
absent the time lapse caused by the Brady failure). If
credited, Montgomery’s original statement about seeing a
man and a woman in her mid-thirties arrive at the photo shoot
would defeat the Government’s narrative that Iman arrived
with her mother, Daaiyah, but it does not clearly exclude
Iman as being the woman Montgomery saw. Even treating
Montgomery’s original statement as somewhat exculpatory of
Iman, there was no other evidence that she did not participate
in the photo shoot (unlike for Daaiyah, whom Brittany
McDaniels testified was not there). Beyond the eyewitness
testimony from the night of the photo shoot, the
Government’s case included substantial other inculpatory
evidence against Iman. Credible witnesses testified that Iman
was Daum’s investigator working on Delante White’s case at
the time of the photo shoot, and phone calls between Delante
White and co-conspirators discussed Daum’s investigators
25
being at the shoot. Tiffany Archer, another investigator who
worked with the Pashas, testified that she and Iman went to
Candice Robertson’s apartment on April 14, 2009 –
ostensibly to search for perishables, but actually to give Iman
time to search the apartment. Candice Robertson’s mother
testified that on the same date (April 14, 2009), Iman called
her and said she was “looking for Candice’s black bag.” She
also testified that sometime later, Iman brought her a money
order for $300 “to help Candice out” and that Iman visited a
third time and told her she had sent Candice a $200 money
order. The District Court noted that this testimony was
“confirmed by documentary evidence of checks and money
orders” and Iman’s actions “cannot be explained by any
reason other than that they were a cover-up.” All this is
enough to show that Iman Pasha was actively involved in
Delante White’s case and to provide a good deal of
evidentiary support for her involvement in the obstruction of
justice conspiracy.
But the calculus is different as to Daaiyah because there
is more exculpatory evidence and substantially less
inculpatory evidence than for Iman. Defendants themselves
seem to have collectively recognized this, submitting in their
joint brief to the District Court that the prejudice “is
particularly damning to defendant Daaiyah Pasha.” Indeed,
we agree that Daaiyah has made out a Brady claim. Two
witnesses with credibility issues (Candice Robertson and
Jerome White) testified that she was at the photo shoot, but a
third (Brittany McDaniels) testified that she definitely was
not. Testimony from Montgomery along the lines of his
initial statement would have made the eyewitness scorecard
two against two as to whether Daaiyah participated in the
photo shoot – even as we note that while the accounts of both
McDaniels and Montgomery exclude Daaiyah’s participation,
they are in tension with each other. Moreover, although
26
Daaiyah frequently worked as an investigator for Daum, it is
not even clearly established in the record that she had a
substantial role as his investigator on this case, much less that
her participation was anywhere near as extensive as Iman’s.
There is some testimony about Daaiyah having been
present at certain meetings. Candice Robertson and Jerome
White placed Daaiyah at a planning meeting in Daum’s office
the morning of the photo shoot. But their recollections of that
meeting were inconsistent, and Jerome did not remember if
Daaiyah was actually in the room during the meeting or
elsewhere in Daum’s office. Christopher White, who was
involved in the broader obstruction of justice but was not
present at the photo shoot, placed Daaiyah at a different
meeting in which Daum instructed him to perjure his
testimony. The District Court found Christopher White the
most credible of the four core witnesses. Importantly,
however, the District Court’s verdict did not make any
explicit findings regarding Daaiyah’s presence at these two
meetings, and so we cannot be sure whether it credited the
relevant claims. But evidence regarding Daaiyah’s presence
at meetings, even if such meetings were proven to have taken
place, does not meaningfully corroborate the testimony that
she participated in the photo shoot. Nor does this weak
evidence counter the reasonable probability that, in light of
Montgomery’s statement, a factfinder could have reasonable
doubt as to her knowing participation in the conspiracy. See,
e.g., United States v. Gomez-Pabon, 911 F.2d 847, 853-54
(1st Cir. 1990) (“[M]ere association with other conspirators is
not enough to support a conspiracy conviction.”).
We do know that Daaiyah performed at least some work
on Delante White’s case. On September 15, 2008 – three
days after the photo shoot – she accompanied Daum to
examine the evidence police had seized. Daum’s paralegal
27
testified that she was in a room with Daaiyah looking at
photos in connection with Delante White’s trial preparation.
Daum’s secretary testified that Iman and Daaiyah were the
only investigators working for Daum at the relevant time,
even as she could not say if Daaiyah had been working on the
case. True, recorded jailhouse calls to Delante White reflect
that both Candice Robertson and Brittany McDaniels reported
that more than one of Daum’s investigators facilitated the
photo shoot – McDaniels, for example, referred to Daum’s
“squad.” But Robertson and McDaniels disagreed as to
whether Daaiyah, present in the courtroom during trial, was
among Daum’s employees at the photo shoot.
There is, undoubtedly, evidence suggesting that Daaiyah
could have been involved in the photo shoot. But the
eyewitness testimony regarding her participation was a crucial
part of the Government’s case against her. Whereas for Iman,
there was other evidence supporting a theory of her
involvement in the conspiracy and no witness – including
Montgomery, based on his initial statement – who would rule
out her participation, the evidence is much weaker for
Daaiyah. Even accepting that she was “around” some other
players in and events related to the conspiracy, the photo
shoot testimony is the most meaningful evidence that she
shared the conspiracy’s objective and participated in it. That
testimony was from witnesses, Candice Robertson and Jerome
White, with grave credibility problems who received
favorable plea agreements.
In this context, we conclude that Montgomery’s
testimony, if delivered in the form of his original statement
and credited by the factfinder, would have created a
reasonable probability of a different outcome as to Daaiyah’s
guilt. See, e.g., United States v. Tavera, 719 F.3d 705, 713-14
(6th Cir. 2013) (remanding for new trial because “[w]e cannot
28
be confident how [a jury] would have” weighed competing
evidence “in light of the entire record” under the “reasonable
doubt” standard); see also Smith v. Cain, 132 S. Ct. 627, 630
(2012) (“[T]he State’s argument offers a reason that the jury
could have disbelieved Boatner’s undisclosed statements, but
gives us no confidence that it would have done so.”). Our
“confidence in the outcome” is undermined because, absent
the Government’s failure to comply with its Brady
obligations, a reasonable factfinder might – or might not –
have found Daaiyah’s guilt beyond a reasonable doubt.
Bagley, 473 U.S. at 678.
3.
That brings us to the question of what to do with
Daaiyah’s conviction. We previously have said: “[O]nce a
court finds a Brady violation, a new trial follows as the
prescribed remedy, not as a matter of discretion.” United
States v. Oruche, 484 F.3d 590, 595 (D.C. Cir. 2007). So our
precedent dictates the remedy for the Brady violation here.
But when a new trial alone does not cure the prejudice,
more is required. In California v. Trombetta, the Supreme
Court observed that “fashioning remedies for the illegal
destruction of evidence can pose troubling choices.” 467 U.S.
479, 486 (1984). It continued: “In nondisclosure cases, a
court can grant the defendant a new trial at which the
previously suppressed evidence may be introduced. But when
evidence has been destroyed in violation of the Constitution,
the court must choose between barring further prosecution or
suppressing . . . the State’s most probative evidence.” Id. at
486-87.
We think helpful authority is to be found in United States
v. Bohl, in which the Court of Appeals for the Tenth Circuit
29
held that dismissal was appropriate where “the disposition of
evidence that is central to the case [has] permanently
deprive[d] the defendant of due process.” 25 F.3d 904, 914
(10th Cir. 1994). The case against Bohl turned on whether
non-conforming steel had been used to build FAA towers
under a Government contract, but the Government removed
the towers while the defendant’s request to test them was
pending. Even though the court said “the exculpatory value
was latent, rather than patent” because it became impossible
to know what the tests would have shown, the destruction was
charged against the Government, which had produced no
explanation for spoliation of the relevant evidence. Id. at 910.
The court therefore directed dismissal of the case.
As these cases involving the destruction of evidence
show by analogy, courts must sometimes fashion remedies to
address persistent prejudice arising from the prosecution’s
failure to timely disclose exculpatory evidence to the defense.
See United States v. Morrison, 449 U.S. 361, 365 n.2 (1981)
(noting the possible necessity of more drastic remedies in
cases where “there [is] continuing prejudice which . . . could
not be remedied by a new trial”).
Putting all this together, we think that following
conviction, the applicable remedy analysis for a Brady
violation is as follows: (1) a Brady violation requires a
remedy of a new trial; (2) such new trial may require striking
evidence, a special jury instruction, or other additional
curative measures tailored to address persistent prejudice; and
(3) if the lingering prejudice of a Brady violation has removed
all possibility that the defendant could receive a new trial that
is fair, the indictment must be dismissed. To be sure,
dismissal is appropriate only as a last resort, where no other
remedy would cure prejudice against a defendant. See Bank
of Nova Scotia v. United States, 487 U.S. 250, 263 (1988)
30
(holding that district court had no authority to dismiss where
lesser remedy was available); Morrison, 449 U.S. at 365; see
also Gov’t of Virgin Islands v. Fahie, 419 F.3d 249, 254 (3d
Cir. 2005) (joining Courts of Appeals for the Ninth and Tenth
Circuits in concluding that dismissal may be appropriate
remedy for Brady violation even as it will be a “rare
sanction”).
We now must apply the remedy analysis to the particular
circumstances of delayed disclosure at issue here, where the
Brady violation has caused prejudice in two respects: first, in
trial preparation; and second, in the potential disappearance of
memory and the availability of evidence.
On the first point, Daaiyah’s counsel told the District
Court just how late disclosure impeded his trial preparation:
[B]esides the prejudice of trying to still continue to listen
to phone calls until three in the morning and putting CDs
in my car on the way in, on the way home, I now stop
every day. I am not talking to my client. I am not
preparing jury instructions. I am not meeting with
[counsel for co-Defendants]. I am running around town
trying to find this witness.
Indeed, “[i]t is not hard to imagine the many circumstances in
which the belated revelation of Brady material might
meaningfully alter a defendant’s choices before and during
trial: how to apportion time and resources to various theories
when investigating the case, whether the defendant should
testify, whether to focus the jury’s attention on this or that
defense, and so on.” United States v. Burke, 571 F.3d 1048,
1054 (10th Cir. 2009).
31
Daaiyah’s counsel never asked for a continuance,
however, raising questions about any claim that additional
trial preparation time would have made a difference to her
case. See United States v. Wilson, 160 F.3d 732, 741 (D.C.
Cir. 1998) (suggesting that failure to request a continuance
undermines defendants’ claim that they would have prepared
for trial differently). Still, failing to recognize the costs of
delayed disclosure would “create dangerous incentives for
prosecutors to withhold impeachment or exculpatory
information until after the defense has committed itself to a
particular strategy during opening statements or until it is too
late for the defense to effectively use the disclosed
information.” Burke, 571 F.3d at 1054. A new trial without
more would, at least, address any remaining trial preparation
issue for this particular Defendant.
The more challenging circumstance is that there is no
way to determine what Montgomery would have said in
sworn testimony timely obtained by Daaiyah’s counsel. As
the District Court noted: “We will never know whether that
statement would have been favorable or
unfavorable . . . . [W]hen credibility and memory are
significant, not to say essential as they are in this trial, the
eight-month passage of time can indeed detract from the
ability to make sufficient use of the testimony.” In other
words, this case is less like one in which physical evidence
has been turned over late and more like one in which physical
evidence has been destroyed.
Still, the Government tells us we should do nothing. It
cites United States v. Dean, 55 F.3d 640, 664 (D.C. Cir.
1995), for the proposition that failure to call a witness may
undermine a claim that testimony would have affected the
outcome of the trial. But Dean’s conclusion was premised on
the fact that the defendant had “effectively used, or had an
32
opportunity to use, all the late-disclosed or unsegregated
exculpatory evidence at trial.” Id. Our case is different
because we must assume the witness’s memory did not hold
through the delay. Montgomery himself told defense counsel
that, had they interviewed him at the time of his original
statement, he “would have been able to tell [them] more.”
Moreover, defense counsel contended that Government agents
“impeded and frustrated” Montgomery’s willingness to
cooperate with them. Defendants’ decision not to call
Montgomery in these circumstances does nothing to show
they would not have called him had they timely learned of his
original statement. Daaiyah’s counsel told the District Court
in his trial opening that Montgomery would testify that the
investigators were a man and a woman in her thirties who
could not have been Daaiyah. But at the time of that opening
statement, the District Court had deferred ruling on the
defense motions for sanctions. Given that he had no curative
remedy to rely on, the decision by Daaiyah’s counsel not to
call Montgomery is understandable on account of concern that
the Government would cross-examine him with the
inconsistent statements he recently had made.
Thus, something more than a new trial is required to
avoid prejudice to Daaiyah. The Government’s actions have
resulted in a situation in which, absent additional remedy “[a]
new trial would be simply a repetition of the first trial,
similarly infected by non-disclosure of discoverable
evidence.” United States v. Bryant, 439 F.2d 642, 653 (D.C.
Cir. 1971), abrogated in part on other grounds by Arizona v.
Youngblood, 488 U.S. 51, 67-71 (1988).
Defendants presented the District Court with multiple
suggestions for appropriate remedies. In their written pretrial
motion, they proposed an order precluding the Government
from introducing any testimony regarding the photo shoot.
33
During the trial they asked the District Court to preclude the
Government from cross-examining Montgomery, and the
District Court denied that request. We appreciate that the first
proposed remedy would be extreme and the second proposed
remedy unusual. It appears that the District Court may have
thought it lacked authority to impose such remedies. See Tr.
June 5, 2012 (p.m.) at 4 (“[T]here’s absolutely no case law
supporting such a drastic, draconian way of dealing with the
problem and mitigating any prejudice.”). To the contrary,
however, if a remedy is available that gives the defendant a
fair trial – such as precluding cross-examination completely
or precluding impeachment with a prior statement – that
remedy is preferable to dismissal of the indictment. See, e.g.,
United States v. Makarita, 576 F. App’x 252, 262 (4th Cir.
2014) (approving district court’s curative instruction telling
the jury to disregard certain testimony related to withheld
evidence); see also Dean, 55 F.3d at 664 (discussing
approvingly a district court giving defense counsel the choice
of remedy for a Brady violation to strike documents, give
cautionary instructions to the jury, or simply cross-examine
and seek to discredit testimony). “Where the district court
concludes that the government was dilatory in its compliance
with Brady, to the prejudice of the defendant, the district court
has discretion to determine an appropriate remedy, whether it
be exclusion of the witness, limitations on the scope of
permitted testimony, instructions to the jury, or even
mistrial.” Burke, 571 F.3d at 1054. Indeed, “[t]he choice of
remedy is in the sound discretion of the district court.” Id.;
see also United States v. Miranda, 526 F.2d 1319, 1325 n.4
(2d Cir. 1975) (stating that where Government has failed to
carry out its Brady obligations, appropriate sanctions may
include “the exclusion or suppression of other evidence
concerning the subject matter of the undisclosed material”).
34
It is important to our conclusion that Daaiyah’s counsel
engaged in a good faith effort to craft a sanction that would fit
the Government’s violation. Almost invariably, it will not do
for a defendant to tell a district court that the only cure is
dismissal of the indictment, and then to settle for something
less on appeal that would be a basis for a second trial. Here,
we think the defense gave the District Court some reasonable
options. And the motivation concern works the other way,
too, in that a prosecutor who learns of a Brady failure must
have incentive to work with the court to remedy the violation
rather than, as was done here, to ask only that the failure be
forgiven and forgotten. The effectiveness of our system
requires more: As an inscription in the alcove outside the
Attorney General’s Office reads, “The United States wins its
point whenever justice is done its citizens in the courts.”
Quoted in David W. Ogden, Memorandum for Department
Prosecutors, Jan. 4, 2010, at http://www.justice.gov/dag/
memorandum-department-prosecutors-0.
We do not reach our new trial conclusion lightly, not
least because the charges in this case relate to the integrity of
process in our courts. There is, however, no way around the
fact that “the suppression by the prosecution of evidence
favorable to an accused upon request violates due process
where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the
prosecution.” Brady, 373 U.S. at 87. “By now government
prosecutors should know: ‘Betray Brady, give short shrift to
Giglio, and you will lose your ill-gotten conviction.’”
Vaughn v. United States, 93 A.3d 1237, 1267 (D.C. 2014)
(quoting United States v. Olsen, 737 F.3d 625, 633 (9th Cir.
2013) (Kozinski, C.J., dissenting from denial of petition for
rehearing en banc)). The application of that rule is the bottom
line here.
35
III.
For the foregoing reasons, we affirm all convictions of
Appellants Daum and Iman Pasha, and we vacate the
conviction of Appellant Daaiyah Pasha and remand to the
District Court for proceedings consistent with this opinion. It
is
So ordered.