In re Sealed Case (Brady Obligations) ( 1999 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 1, 1998 Decided July 21, 1999
No. 99-3096
In re Sealed Case No. 99-3096
(Brady Obligations)
Appeal from the United States District Court
for the District of Columbia
Evelina J. Norwinski, Assistant Federal Public Defender,
argued the cause for appellant. With her on the briefs was
A.J. Kramer, Federal Public Defender. Reita P. Pendry,
Chief Assistant Federal Public Defender, entered an appear-
ance.
Chrisellen R. Kolb, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Wilma A.
Lewis, U.S. Attorney, and John R. Fisher, Assistant U.S.
Attorney.
Before: Edwards, Chief Judge, Henderson and Garland,
Circuit Judges.
Opinion for the Court filed by Circuit Judge Garland.
Garland, Circuit Judge: The defendant in this criminal
case contends that the government improperly denied his
repeated requests for information to which he was entitled
under Brady v. Maryland, 373 U.S. 83 (1963). The govern-
ment responds that because the information, if it exists, would
relate to the impeachment of a defense witness, it falls
outside the obligations imposed by Brady. Defendant replies
that impeachment information always comes within the ambit
of Brady, regardless whether the witness testifies for the
defense or the prosecution.
We need not accept either of these broad claims to resolve
this case. The information defendant seeks would not merely
be impeaching in the sense that it would weaken the credibili-
ty of his own witness. Rather, it would be exculpatory in the
sense that it would be affirmatively favorable to his assertion
of innocence. Accordingly, such information comes within the
scope of the government's Brady obligations. Because the
government concedes that it has not searched to determine
whether the requested information exists, we grant the defen-
dant's request that the case be remanded to the district court.
The government must first search to determine whether the
information sought by defendant exists and, if it does, the
district court must then determine whether that information
is "material" within the meaning of Brady and its progeny.
I
In September 1996, an officer of the District of Columbia's
Metropolitan Police Department (MPD) applied for a warrant
to search the home of John Doe1 for a handgun and ammuni-
tion. The officer submitted an affidavit stating that an
unidentified informant had observed the gun and ammunition
there within the last 48 hours. The affidavit continued: "The
__________
1 Because this case remains under seal, the names of the defen-
dant and the informant have been changed.
source that provided this information has ... given informa-
tion which has led to the arrests of several subjects for
narcotics violations, the recovery of one assault weapon, the
arrests of subjects wanted on warrants and the issuance of
two search warrants." Def. App. 11. A judge of the Superi-
or Court of the District of Columbia granted the application.
The police executed the warrant the following morning.
The officers found one semi-automatic handgun under the
mattress in Doe's basement bedroom, and a second gun,
along with ammunition, in a shoebox under the basement
stairwell. Doe was arrested and questioned. He denied the
guns were his, and denied knowing that they were in the
house. He said he had seen one of the guns in the possession
of a friend, Thomas Jones, a couple of days earlier. Def.
App., Tab A at 51. Doe's girlfriend later testified that Doe
and Jones had picked her up at the hospital the day before
the search, and that after returning to Doe's house, Jones had
spent some time in the basement alone. Id., Tab D at 29-30.
Doe was charged with unlawful possession of a firearm and
ammunition by a convicted felon, in violation of 18 U.S.C.
s 922(g). In a pretrial motion filed in October 1996, Doe
sought disclosure of the identity of the government's infor-
mant. Pursuant to Brady, he also sought production of
information concerning, inter alia: (1) "the amount of money
... paid to the source," and whether it was "paid in exchange
for information or otherwise"; (2) "other consideration pro-
vided to the source, including ... assistance in avoiding or
minimizing harm from pending or threatened charges"; (3)
"all benefits, promises of benefits, or statements that the
source would not benefit absent cooperation ... in connection
with this case"; (4) "the nature of assistance that the source
has provided in the past"; and (5) "the source's prior record,
pending cases, and parole and probation status." Def. App.
21. The court denied the request, ruling that defendant had
not met the burden for piercing the government's informant
privilege set forth in Roviaro v. United States, 353 U.S. 53(1957), because "it is basically a position of speculation as to
how the informer in this case might be helpful to the defen-
dant ... as [the case] stands before the Court now...."
Def. App., Tab A at 83.
Shortly before Doe's trial was scheduled to begin, Thomas
Jones called Doe's attorney, told her that he had helpful
information, and asked to meet with her. In January 1997,
the attorney, her investigator, and Jones met in a restaurant
parking lot. According to the investigator's file memoran-
dum, Jones told them that he was the government informant
in Doe's case and that "he wanted to clear his conscience."
Def. App. 29. He said that "he had a big gun and drug case
in [District of Columbia] Superior Court and he had to work
it off," and identified three detectives with whom he was
cooperating. Jones said the guns found in Doe's apartment
were his (Jones'). He said that the day before the execution
of the search warrant, he and Doe had gone to pick up Doe's
girlfriend at the hospital. When they returned to the house,
Jones continued, he "hid the guns, one under the mattress
and one in a box under the stairs." He did not tell Doe he
was hiding the guns, and Doe did not know what he had done.
Jones assured Doe's attorney that he would testify at Doe's
trial. At the same time, he asked for assistance with his own
legal problems: there was an outstanding bench warrant for
his arrest, and Jones feared that the police would incarcerate
him at the District of Columbia's correctional facility at
Lorton, Virginia. "I can't go back to Lorton," he said,
"because I snitched on so many people." Id.Doe's trial began a week later. In her opening statement,
Doe's attorney told the jury the evidence would show that
Doe was innocent, and that Jones had planted the guns and
ammunition in the house without Doe's knowledge. Def.
App., Tab C at 12. Thereafter, Doe's attorney learned from
the attorney in Jones' Superior Court case that Jones intend-
ed to invoke his Fifth Amendment privilege against self-
incrimination and would refuse to testify at Doe's trial. The
next morning, Doe's attorney advised the court that, in order
to get Jones' prior statements before the jury, she planned to
introduce them through the testimony of her investigator as
statements against Jones' penal interest, see Fed. R. Evid.
804(b)(3). Def. App., Tab D at 3-4.
At this point, the prosecutor questioned whether Jones
really did have a Fifth Amendment privilege. After the court
appointed a lawyer to advise Jones, Jones formally asserted
his right not to testify. The prosecutor then asked "to speak
with [Jones' lawyer] over the luncheon recess to see if we can
reach some sort of accommodation ... which would permit
him [Jones] to testify." Id. at 68. Doe's counsel then made a
Brady request for Jones' "agreements with the government"
in what she understood to be his "sealed" cases in Superior
Court. Id. The prosecutor protested that "I don't have
access to that information readily. I would have to go back
to my office and try to pull out the old files and everything
else." Id. The district court denied Doe's request as "pre-
mature," indicating that it did not want to decide the issue
until it was determined that Jones would testify. Id. at 68-
69.
After the luncheon recess, Jones agreed to testify and the
government advised the court that it had agreed to make
arrangements for his safety. Suspecting that Jones had
become an adverse witness during the break, defense counsel
again requested production of Jones' "prior agreements with
the government" and "sealed" case records. The court again
put off decision, this time indicating it would not consider the
issue until after Jones testified. Def. App., Tab E at 11.
Jones was then called to the witness stand by Doe's coun-
sel. Although he denied that he had told her the names of
police officers with whom he was cooperating or that he was
"working off" a conviction in Superior Court, id. at 22, 27,
Jones admitted that he had told her he was the confidential
informant in Doe's case, id. at 19. He also admitted to
confessing that, while he was alone in the basement, he had
planted the guns under the mattress and stairwell without
Doe's knowledge. Id. at 19-21.
On cross-examination by the prosecutor, Jones' story
changed dramatically. He testified that his pre-trial state-
ments to Doe's counsel were lies. The guns, Jones said, were
Doe's. The day before the search, Doe had taken them out
from underneath the mattress and stairwell to show to him.
Id. at 33-38. Jones had lied about planting the weapons, he
said, because "some dudes" had "threatened, if I didn't call
his lawyer, and tell the guns was mine some bodily harm
would be done to me." Id. at 27-28. After hearing Jones'
testimony, defense counsel asked the court to declare him a
hostile witness and to permit her to cross-examine him. See
Fed. R. Evid. 611(c). The court agreed. Def. App., Tab E at
39.
At the same time, however, the court rejected defendant's
renewed request for "information regarding [Jones'] sealed
cases" and "agreements he's made with the government
regarding those cases." Id. The court denied the request
regarding the sealed cases saying, "I'm not going to at this
late juncture make any effort to get those sealed records
from the Superior Court." Besides, the court said, any
agreements reflected in the records of those cases "don't have
anything to do with this case anyway." Id. at 42.
Persistently, but tactfully, defense counsel asked that the
court at least direct the government to turn over its own
agreements with Jones, noting "[t]hat doesn't require any-
thing from Superior Court." Id. The prosecutor replied that
there was no agreement in the instant case, but made no
representation about agreements in other cases.2 She did
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2 In its brief before this court, the government states that it has
"no reason to believe that any agreement existed between the
United States Attorney's Office and Mr. [Jones] with respect to his
case in Superior Court." Gov't Br. at 34 n.17 (citing, inter alia,
Gov't App., Tabs A-F). We are confused by the government's
statement since its citations, recently prepared transcripts of some
of Jones' Superior Court appearances, appear to refer to such an
agreement. See Gov't App., Tab C at 3 (statement by defense
counsel that "[Jones] has been cooperating with providing informa-
tion"; reply by Assistant U.S. Attorney that "we will need to ensure
that the agreement is followed through"); id., Tab E at 3 (state-
ment by court that at sentencing "[i]t was included in the represen-
tation by prosecution that the defendant was cooperating"). But
state, however, that "I think there may be some records that
the police might have [although] I certainly don't have any-
thing right now." More important, she continued, "I don't
think the government has an obligation to produce them to
the defense in connection with a defense witness." Id. The
court agreed, ruling that the government was not required to
produce records "in regard to a defense witness." Id. at 43.
The court advised defense counsel that she was free, however,
to question Jones about any agreements he might have. Id.
Doe's counsel proceeded to do so, but Jones denied being a
"snitch," id. at 50, said "I haven't told on anybody," id. at 53,
and denied having "an agreement with the government," id.
at 57-58. Doe's counsel did not impeach Jones or otherwise
offer affirmative evidence of prior agreements or government
cooperation. The jury convicted Doe of the offenses charged
in the indictment, and the court sentenced him to 92 months
in prison.
II
In Brady v. Maryland, the Supreme Court held that the
Due Process Clause imposes upon the prosecution an obli-
gation to disclose "evidence favorable to the accused ...
where the evidence is material either to guilt or to punish-
ment, irrespective of the good faith or bad faith of the
prosecution." 373 U.S. at 87; see Pennsylvania v. Ritchie,
480 U.S. 39, 57 (1987). In Giglio v. United States and United
States v. Bagley, the Court held that "impeachment evidence
... as well as exculpatory evidence, falls within the Brady
rule." United States v. Bagley, 473 U.S. 667, 676 (1985)
(quoting Giglio v. United States, 405 U.S. 150, 154 (1972)).
__________
see id., Tab F at 7 (statement by prosecutor that "I have no
information whether or not the defendant is cooperating"). It may
be that the government regards the cooperation agreement referred
to in these transcripts as one involving the police rather than the
U.S. Attorney's Office. If that is the distinction the government is
drawing, it is of no moment to its obligations under Brady. See
Kyles v. Whitley, 514 U.S. 419, 437 (1995); United States v. Brooks,
966 F.2d 1500, 1503 (D.C. Cir. 1992).
And in Kyles v. Whitley, the Court held that the rule includes
evidence "known only to police investigators and not to the
prosecutor." 514 U.S. 419, 438 (1995). Hence, to comply
with Brady, "the individual prosecutor has a duty to learn of
any favorable evidence known to others acting on the govern-
ment's behalf in the case, including the police." Id. at 437.
As the Supreme Court recently noted in Strickler v.
Greene, courts have used the term "Brady violation" to cover
a multitude of prosecutorial sins involving breach of "the
broad obligation to disclose exculpatory evidence," often
called "Brady material." 119 S. Ct. 1936, 1948 (1999). These
include both the failure to search for Brady material and the
failure to produce it. "[S]trictly speaking," however, "there is
never a real 'Brady violation' unless the nondisclosure was so
serious that there is a reasonable probability that the sup-
pressed evidence would have produced a different verdict."
Id. As the Court explained, a "true Brady violation" has
three components: "The evidence at issue must be favorable
to the accused, either because it is exculpatory, or because it
is impeaching; that evidence must have been suppressed by
the State, either willfully or inadvertently; and prejudice
must have ensued." Id. To satisfy the prejudice component,
the withheld evidence must be "material"; that is, there must
be "a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would
have been different." Id. (quoting Bagley, 473 U.S. at 676);
see also Kyles, 514 U.S. at 433-34. If the undisclosed evi-
dence is material, a new trial is required. Kyles, 514 U.S. at
421-22.
It appears from the parties' briefs that, contrary to Doe's
original understanding, the records of Jones' Superior Court
cases3 were not sealed. Gov't Br. at 36 n.21; Oral Arg. Tr.
14-15. Hence, Doe's request for access to those records is
effectively moot. His request for the disclosure of agree-
ments between Jones and the government, however, remains
__________
3 Jones has convictions for carrying a pistol without a license,
attempted possession with intent to distribute cocaine, and attempt-
ed distribution of cocaine. Gov't Br. at 6 n.7.
very much alive. The government's appellate brief advises us
that Jones did "provid[e] information to the police as a paid
special employee," Gov't Br. at 34 n.17, and its appendix
discloses that Jones was required, as a condition of probation
in one of his Superior Court cases, to cooperate with the
police, see Gov't App., Tab C, at 3-4. At oral argument, the
government also advised that "in candor with the court, it
might involve the FBI, it might involve the DEA and other
law enforcement agencies" as well. Oral Arg. Tr. at 29.
We therefore proceed to examine the arguments asserted
by the government in support of its contention that, even if
cooperation agreements exist, it has no Brady obligation to
produce them. We conduct this examination de novo, since
whether the government has breached its obligations under
Brady is a question of law. United States v. Cuffie, 80 F.3d
514, 517 (D.C. Cir. 1996); United States v. Lloyd, 71 F.3d 408,
411 (D.C. Cir. 1995).
A
At trial, the prosecutor argued and the court agreed that
Brady did not apply because Jones was a defense witness.
In response, the defendant points out that the Supreme
Court's description of the government's Brady obligations
encompasses evidence that can be used to impeach the credi-
bility of a witness, and does not on its face distinguish
between impeachment of a prosecution witness and impeach-
ment of a witness for the defense.4 The government replies
that the Court's references to impeachment in Bagley and
Giglio involved prosecution witnesses (the same was true in
Strickler), and that Brady and its progeny therefore do not
require disclosure of impeachment evidence concerning a
defense witness. "The Due Process Clause," the government
notes, "does not provide 'a general constitutional right to
discovery in a criminal case, and Brady did not create one.' "
Gov't Br. at 17 (quoting Weatherford v. Bursey, 429 U.S. 545,
__________
4 See Kyles, 514 U.S. at 433 (noting that in Bagley "the Court
disavowed any difference between exculpatory and impeachment
evidence for Brady purposes").
559 (1977)). To require disclosure of potential impeachment
regarding defense witnesses, the government argues, would
effectively "displace the adversary system as the primary
means by which the truth is uncovered"--a result not intend-
ed by Brady. See Bagley, 473 U.S. at 675; see also United
States v. Agurs, 427 U.S. 97, 109, 112 n.20 (1976).
In the usual case there is a conceptual difference between
the impeachment of a government witness and the impeach-
ment of a defense witness. Evidence that impeaches the
former is almost invariably "favorable" to the accused, be-
cause by making the government's case less credible it en-
hances the defendant's chances of acquittal. Evidence that
impeaches a defense witness, by contrast, is not generally
favorable to the accused; by reducing the credibility of the
defendant's own witness, such impeachment reduces the prob-
ability that he will obtain a not guilty verdict. It is ordinarily
the prosecutor rather than defense counsel who wants to use
the latter kind of evidence--although she may prefer to delay
its use (and disclosure) until after the witness testifies, both
to prevent tailoring of the testimony in expectation of the
cross-examination and to employ the element of surprise to
expose the witness' mendacity.
But Doe's is not the usual case involving impeachment of a
defense witness. First, although it is true that defense
counsel's original plan was to put Jones on the stand as her
own witness (either directly or through the testimony of the
investigator), had things gone as planned she would have had
no reason to impeach Jones' credibility. It was only after
Jones "flipped" and started testifying against Doe that de-
fense counsel wanted to impeach him, hoping that evidence of
a cooperation agreement would help her do so by showing
that Jones lied when he said he had never "snitched" on
anyone. Hence, even if we were to accept the proposition
that only the impeachment of a government witness falls
within Brady, by the time Jones flipped he had effectively
become a government witness--as the court recognized by
declaring him hostile. See Kyles, 514 U.S. at 445-46 (order-
ing new trial where defense could have called informant as
adverse witness and effectively used undisclosed evidence as
impeachment).
Second, and more important, the underlying reason Doe
sought information about Jones' relationship with the govern-
ment was not to impeach Jones' statement, but to use it as
affirmative evidence of Doe's own innocence. Indeed, if all
had gone as planned, Doe would not have used evidence of a
cooperation agreement to impeach Jones' statement that he
planted the guns, but rather to corroborate it by exposing his
motive for doing so. With the testimony of Doe's girlfriend
that Jones had been alone in the basement, Doe had corrobo-
ration of Jones' opportunity to plant the weapons. What he
needed was evidence of motive, and any of several kinds of
cooperation agreements might have provided it. See Bagley,
473 U.S. at 683 (stating that where "the possibility of a
reward had been held out" to witnesses for providing useful
information, "[t]his possibility ... gave [the witnesses] a
direct, personal stake in respondent's conviction").5 For ex-
ample, if there were an agreement that the prosecution would
seek the reduction of Jones' Superior Court sentences if he
provided "substantial assistance in investigating or prosecut-
ing another person," see Fed. R. Crim. P. 35(b), that agree-
ment might have given him a motive to plant the guns.
Similarly, if cooperation with the police were a condition of
Jones' continued probation on his Superior Court convictions,
that might have provided an incentive. And Jones might also
have had a motive if the police had agreed to pay him in
return for information leading to successful arrests.6 As
noted above, there is evidence in the record that at least the
__________
5 Cf. Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) (vacating
judgment where court barred cross-examination about prosecutor's
agreement to drop charge in exchange for witness' promise to speak
with prosecutor, because "a jury might reasonably have found [it]
furnished the witness a motive for favoring the prosecution").
6 There is, of course, nothing inappropriate about such agree-
ments. See United States v. Ramsey, 165 F.3d 980, 988-90 (D.C.
Cir. 1999) (noting legitimacy and law enforcement value of "prose-
cutorial promise(s) of leniency in exchange for truthful testimony").
latter two kinds of agreements may exist. See Gov't App.,
Tab C at 3-4 (Superior Court hearing transcript indicating
cooperation with police was condition of Jones' probation);
Gov't Br. at 34 n.17 (noting that Jones "provided information
to the police as a paid special employee"); Oral Arg. Tr. at 29
(noting that Jones may also have had arrangements with the
FBI and DEA). By providing evidence of motive, such
agreements would have been relevant to Doe's defense inde-
pendent of any impeachment value they might also have had
once Jones turned on him.
Finally, as the government conceded at oral argument, in
the circumstances of this case an agreement that gave Jones
a motive to plant the guns would be Brady material even if
Jones never appeared as a witness for either side. Oral Arg.
Tr. at 21, 27; see Kyles, 514 U.S. at 446; United States v.
Lloyd, 992 F.2d 348, 351 (D.C. Cir. 1993). Indeed, in that
respect this case is similar to Kyles, where the Supreme
Court found that the prosecution violated Brady by failing to
disclose evidence that an informant who never testified might
have planted the murder weapon in defendant's apartment,
514 U.S. at 453, including evidence of the informant's motive.
See id. at 429 (noting defense theory that informant planted
gun for purposes of "removing an impediment to romance
with [Kyles' common-law wife] ... and obtaining reward
money" from police). That kind of evidence is exculpatory in
the purest sense, and its relevance does not depend on who
sponsors its admission. Indeed, once Doe's girlfriend testi-
fied that Jones had been alone in the basement, evidence of
an agreement giving Jones a motive to plant the guns would
have been admissible (assuming authentication) even if Jones
had never entered the courtroom. Accordingly, the fact that
__________
And we certainly do not suggest that any such agreement would, or
could, have authorized Jones to plant the guns. Rather, the point is
simply that such an agreement may give a person a motive that the
jury must be permitted to evaluate. See Van Arsdall, 475 U.S. at
679; Bagley, 473 U.S. at 683; Giglio, 405 U.S. at 154-55; United
States v. Smith, 77 F.3d 511, 513 (D.C. Cir. 1996).
Jones was originally proffered as a defense witness has no
consequence for the scope of the government's Brady obli-
gations here.
B
The potpourri of other objections to disclosure argued by
the trial prosecutor and sustained by the trial court are also
unpersuasive. The court's original rejection of the defen-
dant's pretrial Brady motion correctly rested on the ground
that, as matters then stood, the informant's identity was
confidential and "how the informer in this case might be
helpful to the defendant" was speculative. Def. App., Tab A
at 83. See United States v. Mangum, 100 F.3d 164, 172 (D.C.
Cir. 1996) (upholding nondisclosure of confidential informant's
identity where defendant's assertion that informant planted
gun in knapsack was "purely speculative" and there was no
evidence informant had access to knapsack); United States v.
Warren, 42 F.3d 647, 654 (D.C. Cir. 1994) ("Speculation as to
the information the informant may provide is insufficient.").
By the time the case went to trial, however, those factors no
longer applied. Jones had voluntarily revealed himself to
defense counsel, and had told her he planted the evidence in
Doe's basement. He had also told her that he was cooperat-
ing with the police in order to work off the gun and drug case
he had in Superior Court. This, together with the statement
in the affidavit for the search warrant that the informant had
previously "given information which has led to the arrests of
several subjects," Def. App. 11, moved the possibility that a
materially relevant cooperation agreement existed far beyond
the realm of speculation. See generally Roviaro, 353 U.S. at
60-65.
Nor is there any basis for the rulings that production of the
requested information was "premature," first until it was
clear Jones would testify, and then until after Jones actually
did testify. Contrary to the prosecution's contention, the
information did not become relevant only after Jones changed
his story, giving the defense reason to impeach him. As
noted above, evidence of Jones' motive was relevant indepen-
dent of when or whether he testified. Similarly, we reject the
government's suggestion that ordering a Brady search before
Jones testified would somehow have been inconsistent with
our admonitions in United States v. Marshall (made with
reference to Fed. R. Crim. P. 16), that "[t]o give rise to a
disclosure obligation, the evidence's materiality must, of
course, be evident to a reasonable prosecutor," and that the
"prosecutor need not guess that evidence may become materi-
al as a consequence of a defendant's not-yet-revealed strate-
gic decisions." 132 F.3d. 63, 69 n.2 (D.C. Cir. 1998). At least
from the moment defense counsel made the claim in her
opening statement that Jones planted the guns, it was clear
that any motive Jones might have had to do so was relevant
to the case. No clairvoyance on the part of the prosecutor
was required.
We also reject the government's Catch-22 rationale that
once Jones did testify, it was by then too late to compel
production of the information, since doing so would have
required a continuance to gather the materials. The govern-
ment protests that "in the midst of the trial" it should not
have been required to "scamper" about searching for the
requested evidence. Gov't Br. at 32. But that problem could
have been avoided had the government gathered the material
earlier. In light of the defendant's opening statement, it was
no excuse the next morning that the prosecutor did not "have
access to that information readily" and "would have to go
back to my office and try to pull out old files and everything
else." Def. App., Tab D at 68. The same was true that
afternoon, when she said, "I think there may be some records
that the police might have [but] I certainly don't have any-
thing right now." Id., Tab E at 42. And we do not under-
stand the basis for the government's argument that "appel-
lant cannot credibly complain because he failed to assert a
timely demand for this impeachment material." Gov't Br. at
40. To the contrary, defendant made his demands known
early, often, insistently, and with specificity--only to be met
with the government's claims that they were first premature,
and then too late. If by the time Jones testified the govern-
ment still needed to "scamper" to collect the requested Brady
material, it had no one to blame but itself.7
We find equally unfounded the argument that any agree-
ments Jones may have had in his Superior Court cases "don't
have anything to do with this case." Def. App., Tab E at 42.
Defendant's whole point was that Jones may have planted the
gun in this case in order to "work off" obligations that arose
in those Superior Court cases. Hence, agreements in the
other cases have everything to do with this case. Nor does it
matter that agreements in other cases may have involved
other prosecutors. The United States Attorney's Office for
the District of Columbia prosecutes cases in both the federal
District Court and the local Superior Court, and the prosecu-
tor is responsible (at a minimum) for all Brady information in
the possession of that office. See Giglio, 405 U.S. at 154(holding that ignorance by one prosecutor of promise made by
another is irrelevant since "[t]he prosecutor's office is an
entity and ... [a] promise made by one attorney must be
attributed, for these purposes, to the Government").
For a similar reason, we reject as irrelevant the contention
that the requested records may have been in the possession
of the Metropolitan Police Department, or the FBI or DEA,
rather than the U.S. Attorney's Office. As the Supreme
Court held in Kyles, "[t]he individual prosecutor has a duty to
learn of any favorable evidence known to the others acting on
the government's behalf in the case, including the police." 514
U.S. at 437. Anticipating Kyles, we specifically held in
United States v. Brooks that prosecutors in this District are
responsible for disclosing Brady information contained in
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7 Indeed, the government knew from the opening bell that it
would at least have to prepare to conduct its own cross-examination
of Jones. See Def. App., Tab B at 15 (listing defendant's potential
witnesses). Hence, it should not have needed the compulsion of
Brady to learn all it could about him. See Brooks, 966 F.2d at
1502-03 (noting that "prosecutor's own interest in avoiding surprise
at trial gives him a very considerable incentive to search accessible
files").
MPD files, "[g]iven the close working relationship between
the Washington metropolitan police and the U.S. Attorney for
the District of Columbia (who prosecutes both federal and
District crimes, in both the federal and Superior courts)."
966 F.2d 1500, 1503 (D.C. Cir. 1992). The same is true for
files of the FBI and DEA which, like the U.S. Attorney's
Office, are components of the U.S. Department of Justice.
See id. (noting that Brady requires prosecutors to search FBI
records).
C
Next, we consider the government's appellate argument
that it did not breach a disclosure obligation with respect to
Jones' cooperation agreements because that information was
otherwise available through "reasonable pre-trial preparation
by the defense." Xydas v. United States, 445 F.2d 660, 668
(D.C. Cir. 1971). We note at the start that we find this
argument somewhat surprising. The government concedes
that it has not yet conducted a full Brady search of its own,
and hence does not know the details of any agreements Jones
may have had. See Oral Arg. Tr. at 22-24, 29-30, 38-39. In
particular, the government advises that it knows nothing of
his arrangements with the MPD other than that Jones was a
"paid special employee," Gov't Br. at 34 n.17; Oral Arg. Tr. at
29, and nothing at all of any arrangements he may have with
the FBI or DEA, Oral Arg. Tr. at 38-39. We do not
understand how the government can confidently assert that
defense counsel could have learned the contents of Jones'
agreements when the government concedes that it has no
idea what those contents are.
According to the U.S. Attorney, the first place the defen-
dant should have turned for information about Jones' agree-
ments was Jones himself. Jones, the government points out,
voluntarily contacted defense counsel and "was, for a time,
cooperative with the defense." Gov't Br. at 32. "Since
defense counsel had an opportunity to probe [Jones'] relation-
ship with the government ... during their January ...
conversation [in the restaurant parking lot], appellant cannot
now use Brady as a vehicle to get answers to questions left
unasked at that time." Id. at 33. Again, we find this
argument surprising. The government's position at trial was
that virtually everything Jones said to defense counsel at the
January meeting was a lie, a position the government main-
tains on appeal. Oral Arg. Tr. at 26-27. Surely information
obtained from a government-certified liar cannot substitute
for information obtained from the government itself--particu-
larly not when the defense was seeking information from a
more trustworthy source in order to corroborate (or, as
became necessary, impeach) that individual.
Second, the government contends that if Doe wanted to
learn of Jones' agreements with the MPD, he should have
subpoenaed the involved officers themselves. Gov't Br. at 33.
This argument, too, is unpersuasive. As we have noted
above, "the prosecutor is responsible for 'any favorable evi-
dence known to the others acting on the government's behalf
in the case, including the police,' " Strickler, 119 S. Ct. at 1945 n.12 (quoting Kyles, 514 U.S. at 437), and particularly
including the MPD, see Brooks, 966 F.2d at 1503. According-
ly, defense counsel was no more required to subpoena the
officers to learn of their agreements, than she was to subpoe-
na the prosecutor to learn of hers. The appropriate way for
defense counsel to obtain such information was to make a
Brady request of the prosecutor, just as she did. See United
States v. Iverson, 648 F.2d 737, 739 (D.C. Cir. 1981) (holding
that "the primary obligation for the disclosure of matters
which are essentially in the prosecutorial domain lies with the
government"). Indeed, at oral argument the government
agreed that had Jones been a government witness, it would
readily have produced his cooperation agreements without
insisting on a subpoena, Oral Arg. Tr. at 32-33, just as Giglio
and Bagley contemplate. Since Jones' status as a defense
witness is irrelevant here, there is no reason to require any
other procedure.
D
Finally, the government argues that Doe was not preju-
diced by any nondisclosure that may have occurred because
Doe's attorney failed to impeach Jones with the information
she did have in her possession. When Jones denied under
oath that he had ever informed on anyone else, Def. App.,
Tab E at 53 ("I haven't told on anybody"), counsel could have
contradicted him with the sworn affidavit attached to the
search warrant application, Def. App. 12 ("The source has
given information which has led to the arrests of several
subjects"). She might also have tried to use a representation
made by Jones' attorney at the bench almost immediately
after Jones made his denial. Id., Tab E at 61 (advising the
court that there "was a stipulation of [Jones'] probation to
assist the police on the street"). Defense counsel did not
attempt to use either one.
There is no doubt that this argument is relevant to the
ultimate question of the materiality of the undisclosed evi-
dence, that is, whether there was "a reasonable probability
that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different." Strick-
ler, 119 S. Ct. at 1948 (quoting Bagley, 473 U.S. at 682). But
an evaluation of the significance of the evidence that was
available to the defense cannot begin until the government
determines whether there was any evidence that was unavail-
able. If the information the government finds about Jones'
agreements is the equivalent of that which the defense al-
ready had, then it may well not be material for Brady
purposes. See Iverson, 648 F.2d at 738 ("[N]o violation of
due process results from prosecutorial nondisclosure if de-
fense counsel both knows of the information and is able to
make use of it but still chooses, for tactical reasons, not to do
so.").
On the other hand, the evidence that was available to Doe
only indicated that Jones had cooperated with the govern-
ment, and perhaps that he had an agreement to do so. It did
not disclose, at least not explicitly, the terms of any such
agreement and whether they gave Jones a motive to plant the
guns in Doe's house. The latter would not have been the
equivalent of what the defense already knew and, depending
on the other facts in the case, may or may not have been
material for Brady purposes. See United States v. Smith, 77
F.3d 511, 512-13 (D.C. Cir. 1996) (holding that although
aspects of witness' plea agreement were known to defense,
undisclosed elements were material to defendant's ability to
impeach); Cuffie, 80 F.3d at 517-18 ("[T]he fact that other
impeachment evidence was available to defense counsel does
not [necessarily] render additional impeachment evidence im-
material.") (internal quotations and citations omitted). Need-
less to say, until we know whether such information exists, we
are unable to determine whether it would have been material.
See Pennsylvania v. Ritchie, 480 U.S. at 57 ("At this stage, of
course, it is impossible to say whether any information in the
... records may be relevant to [defendant's] claim of inno-
cence, because neither the prosecution nor defense counsel
has seen the information....").
III
The government concedes that it never conducted a full-
fledged Brady search with respect to any agreements its
various components may have had with Jones. See Oral Arg.
Tr. at 23-24, 29-30, 38-39. For the reasons stated above,
that failure constituted a breach of the government's "duty to
search" for Brady information. Brooks, 996 F.2d at 1502-03.
In their arguments before this court, both the government
and the defendant agreed that were we to find such a breach
of the obligation to search, the proper disposition would be to
remand this case to the district court, "to conduct a further
evidentiary hearing to resolve whether there exists any Bra-
dy information and whether such information was material."
Gov't Br. at 18 n.11; see Def. Br. at 20.
This is the course we have followed in other cases, see
Brooks, 966 F.2d at 1504-05; United States v. Lloyd, 992
F.2d at 352, and the course we follow here as well. "On
remand, the district court should require the U.S. Attorney's
[O]ffice to do what it should have done earlier," 966 F.2d at
1504, namely, to review information held by that office, as
well as the MPD and other relevant law enforcement agen-
cies, to determine whether the government has or had any
agreements with its informant of the kind discussed in this
opinion. If the government finds that such agreements exist,
the district court must then determine whether there is "a
reasonable probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have been
different." Strickler, 119 S. Ct. at 1948 (quoting Bagley, 473
U.S. at 682).