United States v. Jernigan

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-10086
Plaintiff-Appellee,
v.  D.C. No.
CR-00-01010-EHC
RACHEL ALAFFA JERNIGAN,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Arizona
Earl H. Carroll, District Judge, Presiding
Argued and Submitted
March 22, 2007—San Francisco, California
Filed July 9, 2007
Before: Mary M. Schroeder, Chief Circuit Judge,
Betty B. Fletcher, Harry Pregerson, Alex Kozinski,
Diarmuid F. O’Scannlain, Pamela Ann Rymer,
Barry G. Silverman, M. Margaret McKeown,
Raymond C. Fisher, Ronald M. Gould, Marsha S. Berzon,
Jay S. Bybee, Consuelo M. Callahan, Carlos T. Bea, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge B. Fletcher;
Dissent by Judge Bea
8167
8170 UNITED STATES v. JERNIGAN
COUNSEL
Thomas M. Hoidal, Hoidal & Hannah, PLC, Phoenix, Ari-
zona, for the defendant-appellant.
Michael T. Morrissey, Assitant United States Attorney, Phoe-
nix, Arizona, for the plaintiff-appellee.
OPINION
B. FLETCHER, Circuit Judge:
Defendant Rachel Jernigan was arrested on November 10,
2000, for allegedly robbing three banks. After Jernigan was
placed in custody and awaiting trial, two more area banks
were robbed by a woman whose description bore an uncanny
physical resemblance to hers: both women were roughly five
feet tall, Hispanic,1 and had acne or pock-marked complex-
ions. Although the prosecution knew that other nearby banks
had been robbed by a diminutive, Hispanic female with poor
skin after Jernigan’s arrest, the prosecution failed to relay this
information to defense counsel.
1
“Latina” may be the more accurate term but throughout the proceed-
ings “Hispanic” has been used.
UNITED STATES v. JERNIGAN 8171
Proceeding without knowledge of the second alleged bank
robber, Jernigan’s counsel argued at trial simply that his client
was misidentified. However, the jury was not persuaded, and
Jernigan was convicted of bank robbery on March 23, 2001.
While in prison Jernigan learned that a woman fitting a
similar description had been arrested for robbing several
banks in the area. In January 2004, Jernigan filed a motion for
a new trial asserting that (1) the government violated her due
process rights under Brady v. Maryland, 373 U.S. 83 (1963),
by failing to disclose before trial material, exculpatory evi-
dence known to the government, and alternatively that (2) evi-
dence discovered after trial required that Jernigan receive a
new trial pursuant to Federal Rule of Criminal Procedure 33.
The district court denied her motion in January 2005, and
Jernigan appealed. After a panel of this court affirmed the dis-
trict court, we voted to rehear this case en banc. We disagree
with both the original panel and the district court and hold
that the suppressed evidence was material to Jernigan’s guilt.2
The district court’s decision is hereby reversed, and we
remand for a new trial.
I.
On September 20, 2000, the Bank of America branch in
Gilbert, Arizona was robbed by a short, Hispanic woman with
a pock-marked face. The robber posed as a bank customer.
When her turn in line came, she passed a sloppy, hand-written
note to Elizabeth Chlupsa, the victim bank teller, threatening
to shoot if Chlupsa did not hand over all of the money in her
drawer. Chlupsa complied with the demand note, and the rob-
ber fled without having said a word.
Jernigan became a suspect after a chance conversation
2
We therefore need not reach the question of whether the district court
erred in denying Jernigan’s motion for a new trial based on Federal Rule
of Criminal Procedure 33.
8172 UNITED STATES v. JERNIGAN
between the FBI agent investigating the bank robbery and a
postal inspector who was investigating Jernigan in connection
with some shoplifting incidents at a local post office. During
their conversation, the postal inspector noted that Jernigan fit
the description of the unidentified bank robber. After review-
ing photographs of Jernigan and comparing them to surveil-
lance photographs from the September 20th robbery, the FBI
agent focused his investigation on Jernigan. The agent created
a photographic lineup that included Jernigan and showed the
photos to the victim bank teller, who identified Jernigan as the
woman who had robbed her. No other eyewitnesses were
shown the photospread — or any other photographs of Jerni-
gan — until five or six months later.
Police arrested Jernigan on November 10, 2000, and she
has remained in custody since that time. In addition to the
September 20, 2000 robbery, police also charged Jernigan
with two additional bank robberies: an October 11, 2000 rob-
bery at 906 East Baseline Road in Tempe, and an October 25,
2000 robbery at 2298 North Alma School in Chandler. Fol-
lowing Jernigan’s incarceration, but before her trial, two other
bank robberies were committed — one on November 28,
2000, and another on November 30, 2000 — by a person
matching Jernigan’s description: a short, Hispanic woman
with acne. One bank was located across the street from one
of the banks allegedly robbed by Jernigan; the other bank was
located approximately ten miles away.
The district court ultimately severed the charges involving
the September 20th robbery from the other robberies with
which she was charged. Jernigan’s trial for the September
20th robbery began on March 20, 2001. At trial, the govern-
ment relied entirely on the accounts of five eyewitnesses and
the bank surveillance video. The video did not provide a clean
look at the bank robber’s face3 and was used primarily to bol-
3
We have reviewed the surveillance video and still images taken from
the video and agree that this evidence does not identify Jernigan as the
robber. The image is of poor quality and the robber is wearing a hat that
obscures her face.
UNITED STATES v. JERNIGAN 8173
ster the eyewitnesses’ testimony. No physical evidence tied
Jernigan to the robbery. Jernigan flatly denied involvement in
any bank robberies and, at trial, her counsel argued that she
had been misidentified by the witnesses. Counsel did not,
however, suggest to the jury who might have been the robber
if Jernigan were not.
The jury convicted Jernigan of both armed bank robbery
and use of a firearm during an armed bank robbery. The dis-
trict court sentenced her to 168 months in jail and five years
of supervised release. The remaining bank robbery charges
were dismissed by stipulation.
On December 11, 2001, Juanita Rodriguez-Gallegos robbed
the same bank allegedly robbed by Jernigan on September 20,
2000. During that robbery the victim teller, Kathleen Golliher,
placed a tracking device in the stolen money. Police stopped
Rodriguez-Gallegos half an hour after the robbery and Golli-
her identified her as the robber.4 The police report described
Rodriguez-Gallegos as a Hispanic female, 4’11” and 125
pounds, with brown eyes, black hair, and pock-marked
cheeks. Police charged Rodriguez-Gallegos with the Novem-
ber 28, 2000, November 30, 2000, and December 11, 2001
bank robberies, and with one count of brandishing a firearm
during a violent crime. She pled guilty to the firearm offense,
and the remaining charges were dropped.
After learning of Rodriguez-Gallegos’s arrest from fellow
inmates, Jernigan moved for a new trial. In her motion, Jerni-
gan asserted that the government had failed to meet its Brady
obligations by not disclosing the existence of a phenotypically
4
Golliher asserted during the hearing on the motion for a new trial that
the two bank robberies, both of which she witnessed, were conducted by
different women. The robberies took place 15 months apart. Golliher was
not the victim teller in the September 20, 2000 robbery. Moreover, she
was at some distance from the robber and gave conflicting accounts of the
woman’s complexion and age.
8174 UNITED STATES v. JERNIGAN
similar bank robber who had been robbing banks in the same
area after Jernigan’s incarceration. She also argued that the
district court should grant her a new trial under Rule 33 based
upon the post-conviction developments involving Rodriguez
Gallegos. The district court denied the motion on both
grounds, and Jernigan appealed.
II.
[1] In Brady v. Maryland, the Supreme Court explained,
“[s]ociety wins not only when the guilty are convicted but
when criminal trials are fair; our system of the administration
of justice suffers when any accused is treated unfairly.” 373
U.S. at 87. The Court also noted that prosecutors are charged
not only with winning trials but with seeking justice. Id. at 87-
88 & n.2. Premised on this understanding of fairness and pro-
secutorial responsibility, the Court held that the suppression
of evidence favorable to any accused violates the due process
of law, irrespective of whether the suppression is done in
good faith or bad. Id. at 87.
[2] Brady’s progeny have articulated three elements that
defendants must prove to show a Brady violation. See Benn
v. Lambert, 283 F.3d 1040, 1052 (9th Cir. 2002). First, the
suppressed evidence must be favorable to the accused. See
United States v. Bagley, 473 U.S. 667, 676 (1985) (citing
Brady, 373 U.S. at 87). Second, the evidence must have been
suppressed by the government, either willfully or inadvertently.5
See United States v. Agurs, 427 U.S. 97, 110 (1976). And
third, the suppressed evidence must be material to the guilt or
innocence of the defendant. See Bagley, 473 U.S. at 676-78.
Because the government does not dispute that the evidence of
an additional bank robber matching Jernigan’s description
5
The investigation of all of the robberies was conducted by an FBI agent
who apparently never told the prosecutor about the November robberies.
There is no indication that anyone in the U.S. Attorney’s office acted in
bad faith.
UNITED STATES v. JERNIGAN 8175
was favorable to Jernigan and that the government failed to
provide it to defense counsel, the only issue in dispute is
whether the evidence was material.
The touchstone of materiality review is whether admission
of the suppressed evidence would have created a “ ‘reason-
able probability’ of a different result.”6 Kyles v. Whitley, 514
U.S. 419, 434 (1995) (citing Bagley, 473 U.S. at 682). And as
the Kyles Court emphasized, the adjective “reasonable” is
important. Id. A defendant need not show that she “would
more likely than not have received a different verdict with the
evidence.” Id. Instead, she must show only that “the govern-
ment’s evidentiary suppression ‘undermines confidence in the
outcome of the trial.’ ”7 Id. (quoting Bagley, 473 U.S. at 678).
In considering whether the failure to disclose exculpatory evi-
dence undermines confidence in the outcome, judges must
6
The dissenting opinion presents a red herring and side steps the issue
before the court. At dispute is not whether Jernigan and Rodriguez-
Gallegos “look alike.” At the time of Jernigan’s trial, the government did
not know who committed the November robberies. As a result, what
Rodriguez-Gallegos actually looks like is completely irrelevant to the
Brady analysis. The question is whether a reasonable probability existed
that the jury would have arrived at a different result if provided with the
excluded evidence. More specifically, the question is whether the jury,
when presented with nothing more than shaky, cross-racial eyewitness
identifications, unsupported by any physical evidence, would have arrived
at a different result when informed that a woman described in uncannily
similar terms — terms describing a most unlikely bank robber — was rob-
bing banks in the same area just days after Jernigan’s incarceration. Given
the extraordinary unlikelihood of two such robbers existing at the same
time in the same place, the majority believes that the jury may well have
accepted Jernigan’s “misidentification” defense had the suppressed evi-
dence been admitted.
7
Kyles specifically rejected the idea that Brady required a sufficiency of
the evidence test. 514 U.S. at 434-35. Defendants may prevail in a Brady
challenge even if the evidence remains sufficient to convict following the
introduction of the suppressed evidence. Id. Defendants need only show
“that the favorable evidence could reasonably be taken to put the whole
case in such a different light as to undermine confidence in the verdict.”
Id. at 435.
8176 UNITED STATES v. JERNIGAN
“ ‘undertake a careful, balanced evaluation of the nature and
strength of both the evidence the defense was prevented from
presenting and the evidence each side presented at trial.’ ”
Baily v. Rae, 339 F.3d 1107, 1119 (9th Cir. 2003) (quoting
Boss v. Pierce, 263 F.3d 734, 745 (7th Cir. 2001)). In other
words, “the withheld evidence must be analyzed ‘in the con-
text of the entire record.’ ” Benn, 283 F.3d at 1053 (quoting
Agurs, 427 U.S. at 112).
[3] Here, the suppressed evidence substantially erodes the
already questionable value of the eyewitness identifications.
“Centuries of experience in the administration of criminal jus-
tice have shown that convictions based solely on testimony
that identifies a defendant previously unknown to the witness
is highly suspect. Of all the various kinds of evidence it is the
least reliable, especially where unsupported by corroborating
evidence.” Jackson v. Fogg, 589 F.2d 108, 112 (2d Cir.
1978); see also Department of Justice, Eyewitness Evidence:
A Guide for Law Enforcement 1, 3 (Oct. 1999); Gary L.
Wells et al., Eyewitness Identification Procedures: Recom-
mendations For Lineups and Photospreads, 22 L. & HUM.
BEHAV. 603, 619-27 (1998); Gary L. Wells et al., Accuracy,
Confidence, and Juror Perceptions in Eyewitness Identifica-
tion, 64 J. APPLIED PSYCHOL. 440 (1979). Cross-racial identifi-
cations, such as the eyewitness accounts offered against
Jernigan, are particularly suspect. See Harvey Gee, Eyewit-
ness Testimony and Cross-Racial Identification, 35 NEW ENG.
L. REV. 835 (2001) (reviewing Elizabeth F. Loftus, Eyewit-
ness Testimony (1996)); John P. Rutledge, They All Look
Alike: The Inaccuracy of Cross-Racial Identifications, 28 AM.
J. CRIM. L. 207 (2001). In a case that turned entirely on eye-
witness identifications, the presence of a second robber in the
same area fitting the very same physical description was
bound to “substantially reduce[ ] or destroy[ ]” the “value” of
the eyewitness testimony. See Kyles, 514 U.S. at 441.
[4] Five eyewitnesses testified at Jernigan’s trial, describing
the robber as, inter alia, “a very, very short Hispanic, what I
UNITED STATES v. JERNIGAN 8177
thought was Hispanic-looking lady.” “She was very small,
either five-foot or under five foot.” She was “either Hispanic
or Oriental.” She was a “[v]ery small person, possibly His-
panic.” She was “a short Asian woman.” “[S]he may have had
acne, kind of pocked.” She did not have “a clear complexion.”
“She had very dark hair, black.”
[5] The government knew shortly after Jernigan’s arrest,
but did not disclose, that witnesses to two additional bank
robberies, which took place close to the bank she was charged
with robbing, offered strikingly similar descriptions of the
perpetrator. Witnesses described the November 28th robber as
“Hispanic or Oriental” with “[a] little acne,” “5′1″-5′2,″” and
“[d]ark brown hair.” The November 30th robber was
described as “Female,” “Hispanic,” “5′1″-5′2″,” with a “Pot
[sic] Marked Face.” She was also described as a “small Asian
woman under 5 ft.” The police bulletin described a Hispanic
female, 30s, 5′02″, 130 pounds, black hair, pock marked
cheeks and braces.”
[6] Moreover, the victim tellers reported similar modus
operandi in all of the robberies. The victim teller testified that
during the September 20th robbery the robber slid her a note
that read, “Don’t make a big scene, give me all your money,
don’t give me any dye packs or tracking devices and don’t
press the alarm or else I will shoot.” The note was “handwrit-
ten” in a “fairly big and kind of sloppy . . . printed” fashion.
On November 30th the robber passed a “note” to the victim
teller which said, “in very sloppy writing,” “Do not set off
alarm, Give me all of your money, Please do not set off your
alarm.” Similarly, on November 30th, the robber passed a
note stating, “Don’t turn on any alarms, or you’re dead.”
[7] The uncanny similarity between the descriptions of the
alleged robbers would be noteworthy even if the eyewitness
accounts did not describe a most unlikely bank robber. In
2000 (the year the robberies in question took place), only six
percent of all bank robbery perpetrators were female. Only six
8178 UNITED STATES v. JERNIGAN
percent of bank robbers overall (male and female) were His-
panic. See U.S. Fed. Bureau of Investigation, Summary and
Interpretation of Bank Crime Statistics, 2000 (2002). The
likelihood of two short, Hispanic female robbers with pock-
marked skin holding up banks in the same area is therefore
extremely low.
[8] The existence of another bank robber for whom Jerni-
gan may well have been mistaken also magnifies the signifi-
cance of the gaps and inconsistencies in the prosecution’s
case. The most obvious gap, as noted earlier, was the com-
plete lack of physical evidence connecting Jernigan to the
crime. Even after Jernigan was arrested, the police failed to
produce any physical evidence connecting her to the crime: a
fingerprint lifted from the victim teller’s window did not
match Jernigan’s print, and, after Jernigan was arrested, the
police failed to find the stolen money, the firearm used to con-
duct the robbery, or any clothing resembling that worn by the
robber.
[9] Furthermore, the government’s witnesses provided
inaccurate or inconsistent testimony, which is troubling, but
not atypical of eyewitness accounts. For instance, Chlupsa,
the victim teller on September 20th, maintained both immedi-
ately after the robbery and during trial that the perpetrator had
no tattoos and did not have painted fingernails. However,
Jernigan has a number of tattoos on her hands and forearms,
as evidenced in photographs submitted to the district court
and confirmed by the FBI shortly after the arrest.
Chlupsa also described the perpetrator as having plucked
eyebrows, wearing “very, very, very, dark eyeliner,” “a lot of
makeup,” and a lot of eyeliner. By contrast, Lorraine Hawley,
a customer who stood next to the perpetrator in line, described
the robber as wearing “little to no make-up” and no lipstick.8
8
Witnesses also had a difficult time determining whether the robber was
Asian or Hispanic. Although these inconsistencies may be less significant,
they highlight the uncertainty of the eyewitness identifications.
UNITED STATES v. JERNIGAN 8179
The eyewitnesses’ tentativeness is equally telling. Hawley,
who claimed to get a good look at the robber, had some trou-
ble picking Jernigan out of a photospread, stating, “I want to
say it looks like this one. . . . I would say this would be the
one.” Golliher appears to have had trouble as well, stating,
“By — I just felt that was the one that — that was whom I
saw.”
These problems are not altogether surprising given that all
but one of the eyewitnesses viewed the photospread five to six
months after the incident. Hawley first saw the photospread
two days before trial — six months after the robbery. Three
others — Golliher, employee Yarjanic Nath, and customer
Donovan Grierson — were all shown the photos five months
after the robbery. This delay, which goes totally unexplained,
also detracts from the reliability of the identifications.
[10] Finally, the probability that Jernigan was confused
with the real bank robber is bolstered further by various
pieces of exculpatory evidence.9 For instance, the getaway car
for the October 11, 2000 robbery — a black Toyota 4-Runner
— matched the description of the November 30, 2000 get-
away car used by Rodriguez-Gallegos. Additionally, the vic-
tim teller in the October 11, 2000 robbery could not identify
the woman who robbed her from the photospread containing
Jernigan; however, the victim declared that the October 11
robber was the woman in the surveillance video from the Sep-
tember 20, 2000 robbery, suggesting that the September 20th
robber was other than Jernigan — even possibly Rodriguez-
Gallegos.
9
Jernigan was questioned by a polygraph expert prior to trial. The poly-
grapher asked Jernigan about robbing banks both as a general matter and
in regard to the three banks for which she was originally arrested. Jernigan
denied involvement in those, or any other, bank robberies and her score
of 17 indicates a truthful response (anything above a 6 is considered truth-
ful). Jernigan does not challenge the district court’s exclusion of this evi-
dence, and we do not consider it in reaching our decision.
8180 UNITED STATES v. JERNIGAN
[11] When considered in isolation, the various gaps, incon-
sistencies, and exculpatory details in the record might be
insufficient to trump the testimony of the five eyewitnesses.
But when this evidence is considered collectively, it under-
mines confidence in the outcome of the trial. It may be that
two five-foot-tall Hispanic women with pock-marked skin
were robbing the same banks in the same area with the same
modus operandi and the same getaway vehicles. And it may
be that the police just happened to miss finding the gun used
in the robbery for which Jernigan was tried, the clothes worn
in the robbery, and the money stolen in the robbery, when
apprehending Jernigan. But it also may be that the hesitant
and conflicting identifications offered by the eyewitnesses
many months after the event were incorrect, and that the wit-
nesses simply picked Jernigan out of the photospread because
she was the woman who looked the most like the real culprit.10
[12] As we view the withheld evidence in the context of the
entire record, it is apparent to us that the evidence was mate-
rial and that Jernigan was prejudiced by its suppression. With-
holding knowledge of a second suspect conflicts with the
Supreme Court’s directive that “the criminal trial, as distinct
from the prosecutor’s private deliberations, [be preserved] as
the chosen forum for ascertaining the truth about criminal
accusations.” Kyles, 514 U.S. at 440. By suppressing this evi-
dence, the prosecution arrogated to itself a central function
belonging to the criminal jury and pursued its role as adver-
sary to the exclusion of its role as architect of a just trial. Cf.
Brady, 373 U.S. at 87-88 & n.2. The government has deprived
Jernigan of a fair trial and placed a possibly innocent woman
behind bars. Because the evidence withheld by the govern-
ment was material, we reverse the decision of the panel and
district court, and remand to the district court for further pro-
10
It is worth noting that Rodriguez-Gallegos was never included in any
of the photospreads shown to the eyewitnesses. Thus, there was never an
opportunity for the witnesses to compare Jernigan and Rodriguez-
Gallegos.
UNITED STATES v. JERNIGAN 8181
ceedings consistent with our opinion.
REVERSED AND REMANDED.
BEA, Circuit Judge, with whom O’SCANNLAIN, Circuit
Judge, joins, dissenting:
I cannot articulate my disagreement with the majority’s rea-
soning better than did our colleague Judge Farris: “My
brother and I differ on what is the appropriate appellate func-
tion. He would retry. I am content to review.” Li v. Ashcroft,
378 F.3d 959, 964 n.1 (9th Cir. 2004).
The majority gives an exquisitely detailed tour de force
through the circumstantial evidence of similarity of physical
appearance between the two women. That tour certainly
allows the preliminary inference that the jury could have
found, on that evidence alone, that Rodriguez-Gallegos
looked enough like Jernigan; the jury could have found
Rodriguez-Gallegos was probably the September 20, 2000
robber on that evidence. But our task is not to imagine our-
selves as jurors given only the circumstantial evidence of the
women’s descriptions. We must consider whether the district
court erred in rejecting that circumstantial evidence in view of
what he saw: that the women did not look alike.1
1
The majority concludes that “what Rodriguez-Gallegos actually looks
like is completely irrelevant to the Brady analysis” because the Govern-
ment did not know the identity of the November 28, 2000 robber prior to
Jernigan’s trial. See note 6, Majority Opinion. The majority errs in failing
to distinguish between identity and appearance; they are not synonymous
for purposes of determining the materiality of the claimed Brady evidence.
Although the Government did not know the identity of the November 28,
2000 robber prior to Jernigan’s trial, the Government knew what the
November 28, 2000 robber looked like prior to Jernigan’s trial; the Gov-
ernment possessed and viewed surveillance video of the November 28,
2000 bank robbery prior to Jernigan’s trial. FBI Agent Kyle Richard had
8182 UNITED STATES v. JERNIGAN
When we focus on the proper scope of review, our obliga-
tion is solely to determine whether the trial court erred in
finding the non-disclosed evidence of the later bank robberies
was not material; that no Brady violation occurred. See United
States v. Bagley, 473 U.S. 667, 676-78 (1985) (citing Brady
v. Maryland, 373 U.S. 83, 87 (1963)). Determination of the
facts upon which Brady materiality is decided is properly con-
fided to the trial judge and should be subject to review by us
only for clear error. See section II.A, infra.
The only Brady issue2 before us should be whether Judge
Carroll’s determination that the women were not of similar
appearance was clear error. If not, the undisclosed evidence
was not material under Brady.
Judge Earl H. Carroll3 presided over a four-day trial of the
bank robbery charge against Jernigan. Jernigan, sans the “hat
that obscures her face”4 in the September 20, 2000 bank sur-
veillance video, sat at counsel table, several feet from Judge
compared the photographs taken from the November 28, 2000 surveillance
video (of Rodriguez-Gallegos) to those of Jernigan, and had determined—
as Judge Carroll later did—he was dealing with two different female bank
robbers. Significantly, Judge Carroll’s determination that Jernigan did not
look like the November 28, 2000 robber was based solely on evidence
possessed by the government prior to Jernigan’s trial, i.e., a photograph
taken from the November 28, 2000 surveillance video. See Mot. New Trial
Tr. 87, May 12, 2004 (Docket No. 117). Accordingly, Judge Carroll’s
finding that Jernigan did not look like the November 28, 2000 robber is
hardly irrelevant. Indeed, if by some happenstance the two women had the
same names—further complicating matters from an identity point of view
—this coincidence would not have made the evidence “material” under
Brady for the simple reason the two women do not look alike. Hence, the
non-disclosed evidence does not permit the inference that the eyewitnesses
mistook Jernigan for Rodriguez-Gallegos.
2
The Government concedes the evidence was favorable and undis-
closed.
3
Appointed to the district court in 1980.
4
See note 3, Majority Opinion.
UNITED STATES v. JERNIGAN 8183
Carroll. After about 25 hours of such proximity and on the
motion for new trial, Judge Carroll compared a photograph of
Rodriguez-Gallegos taken from the November 28, 2000 bank
surveillance video with a photograph of Jernigan and with
Jernigan herself. The clear photograph of Rodriguez-Gallegos
was a full face black and white; she was not wearing a hat of
any sort nor, Heaven forfend, a mask. But that was not all
Judge Carroll had to help him determine whether there was
any chance Jernigan could be mistaken for Rodriguez-
Gallegos. No, he also had the written admission of Jernigan’s
counsel that Jernigan had never argued the two women
“looked alike.”5
Judge Carroll found Jernigan’s Brady claim meritless and
delivered a written decision denying Jernigan’s motion for
new trial, in which decision he made specific findings regard-
ing whether Jernigan looked enough like Rodriguez-Gallegos,
so that the former could be mistaken for the latter:
“The simple fact is that [Jernigan] and Rodriguez[-
Gallegos] do not look alike . . . .”
“The defense has not argued the two women ‘look
alike.’ ”
“Common sense says that if Defendant and Rodri-
guez do not look alike, the fact that they may share
similar physical characteristics such as height, racial
characteristics and poor complexions, does not sup-
port a finding or an ‘inference’ that Rodriguez-
Gallegos robbed the Bank of America branch in Gil-
bert on September 20, 2000.”6
Judge Carroll’s written decision is consistent with his ear-
lier finding that Jernigan’s “appearance, physical appearance,
5
Def.’s Reply on Mot. for New Trial 4, April 12, 2004.
6
Order, January 21, 2005.
8184 UNITED STATES v. JERNIGAN
her face, mouth, hair and that of this Miss Rodriguez[-
Gallegos] . . . are markedly different.”7
The majority labels Judge Carroll’s finding of dissimilarity
a “red herring.” See note 6, Majority Opinion. Is the finding
that Jernigan and Rodriguez-Gallegos do not look alike really
a “deliberately misleading object,” like the smoked and
smelly fish that poachers would trail on the ground, away
from their game, to throw the owner’s dogs off, and leave the
game to the poachers?
No, to call Judge Carroll’s visual determination the women
did not look alike a “red herring” is to invoke the last retort
of the knave caught red-handed: “Who are you going to
believe, me or your lying eyes?”
Unlike the majority, I cannot ignore Judge Carroll’s eyes
and their finding; they determine the undisclosed circumstan-
tial evidence was not material.
Let me illustrate the effect of such a finding. Assume the
prosecutor had disclosed the circumstantial description evi-
dence which suggested Jernigan looked like the November
28, 2000 robber, later identified as Rodriguez-Gallegos. But
also assume the prosecutor had disclosed evidence that con-
vinced Judge Carroll that Rodriguez-Gallegos was in fact
incarcerated throughout the day of September 20, 2000, and
thus unable to have committed the September 20, 2000 bank
robbery. Exercising his gate-keeping function to bar confus-
ing and misleading testimony, Judge Carroll would exclude
the circumstantial description testimony as irrelevant. See
Fed. R. Evid. 104, 402 and 403. We would affirm. We would
also affirm if the evidence had not been disclosed at all, see
United States v. Sarno, 73 F.3d 1470, 1506 (9th Cir. 1995),
unless Judge Carroll had committed reversible error in his
evidentiary ruling that Rodriguez-Gallegos was in jail and
7
Mot. New Trial Tr. 87, May 12, 2004 (Docket No. 117).
UNITED STATES v. JERNIGAN 8185
thus unable to have committed the September 20, 2000 bank
robbery.
Here, the November 28, 2000 surveillance video photo-
graph dictates the same conclusion because it supports Judge
Carroll’s finding that Jernigan and the November 28, 2000
robber, Rodriguez-Gallegos, do not look alike. Judge Car-
roll’s ruling was that even if disclosed, evidence of “the rob-
beries in November 2000 would not have been admissible in
this case[.]” See Order at 7, January 21, 2005 (emphasis
added). In short, the fact that Jernigan and the November 28,
2000 robber do not look alike, far from being a “red herring,”
is the central judicial ruling which renders the undisclosed
evidence irrelevant, hence not “material”—unless the Judge
who so ruled committed reversible error in his ruling. That is
the only issue properly before us.
Applying the correct scope of review, Judge Carroll’s fac-
tual findings—carefully ignored by the majority—are not
clearly erroneous8 and, in my view, are entitled to deference.
Accordingly, since the claimed Brady evidence would not
have undermined confidence in the jury verdict of conviction,
I would affirm.
The majority, however, refuses to accord deference to these
findings, departs from binding Supreme Court precedent in
that regard,9 engages in appellate fact finding without the ben-
efit of ever having seen Jernigan (except in the video where
she wore a face obscuring hat), departs from Kyles v. Whitley,
514 U.S. 419, 437 (1995), by not determining materiality on
the basis of all the non-disclosed evidence, and reverses.
8
There is no claim that Judge Carroll did not actually have a photograph
of Rodriguez-Gallegos to compare to Jernigan or that Judge Carroll was
indeed blind—claims that might be grounds for clear error in fact finding.
9
Similar appellate fact finding contrary to what the trial judge has
observed and has deduced from his own observations have recently
resulted in reversals of our decisions. See Uttecht v. Brown, 127 S. Ct.
2218 (2007); Collins v. Rice, 546 U.S. 333 (2006).
8186 UNITED STATES v. JERNIGAN
I.
On November 10, 2000, Jernigan was arrested on suspicion
of robbing three banks in the East Valley area of Arizona: one
on September 20, 2000, one on October 11, 2000, and one on
October 25, 2000. While Jernigan was in custody pending
trial, two additional banks were robbed in the East Valley:
one on November 28, 2000 and one on November 30, 2000.
Witness statements from all five bank robberies describe the
robber as a short Hispanic woman with a poor complexion.
Agent Kyle Richard, the bank robbery coordinator at the
Federal Bureau of Investigation’s Phoenix division, was the
case agent for all five bank robberies. Agent Richard deter-
mined the bank robberies in September and October were not
committed by the same woman who committed the bank rob-
beries in November. This determination was based on com-
parisons of the modus operandi, witness statements, and a
photograph of Jernigan with photographs taken from the sur-
veillance video of the November robberies. Owing to his
determination, Agent Richard did not inform the Assistant
United States Attorney prosecuting Jernigan’s case of the
November robberies.10 Thus, the Assistant United States
Attorney did not disclose the November bank robberies to
Jernigan’s defense counsel.
Five eyewitnesses independently identified Jernigan as hav-
ing committed the September 20, 2000 bank robbery. At
Jernigan’s trial, two of the eyewitnesses described close range
contacts with Jernigan. One, the victim teller, who was in the
immediate presence of Jernigan at the time of the robbery for
several minutes, described Jernigan accurately thereafter, and
10
This in no way alleviated the Assistant United States Attorney’s duty
to disclose the November robberies if they were material under Brady. See
Kyles, 514 U.S. at 437 (“[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.”).
UNITED STATES v. JERNIGAN 8187
had no trouble identifying Jernigan when she picked her out
from the photospread two days after the robbery.11 The other
testified Jernigan resembled a friend, which made identifica-
tion for her much easier. The testimony of these two eyewit-
nesses was corroborated by the testimony of three additional
eyewitnesses and the bank surveillance video. As the majority
notes, the surveillance video from the September 20, 2000
bank robbery suffers from a lack of quality and was used pri-
marily to bolster the eyewitnesses’ testimony.
Jernigan’s trial defense counsel argued mistaken identify to
no avail, and Jernigan was convicted of the September 20,
2000 bank robbery.
On December 11, 2001, Rodriguez-Gallegos was arrested
shortly after robbing the same bank Jernigan was convicted of
robbing on September 20, 2000. In addition to the December
11, 2001 bank robbery, Rodriguez-Gallegos was charged with
the November 28, 2000 and November 30, 2000 bank rob-
beries.
After learning of Rodriguez-Gallegos’ arrest, Jernigan filed
a motion for a new trial, asserting a Brady violation on the
basis the Government should have disclosed the November
28, 2000 and November 30, 2000 bank robberies. Judge Earl
H. Carroll, the same judge who had presided over Jernigan’s
four-day trial, presided over Jernigan’s motion for a new trial.
During the evidentiary hearing, Judge Carroll found:
[W]ith respect at least to my observation of the
defendant in this case, Miss Jernigan, and the photo-
graph, which is all I have, of the — Miss
Rodriguez[-Gallegos], I would observe from what I
see there that they are different people, and that
someone having looked at them under these circum-
11
No claim is made that the photospread was suggestive or otherwise
improper.
8188 UNITED STATES v. JERNIGAN
stances would have been able to make such a deter-
mination, if they had been presented with it at the
same time or close to that time.
The photograph of Miss Jernigan that was used on
the photospread and her appearance, physical
appearance, her face, mouth, hair and that of this
Miss Rodriguez[-Gallegos] I think are markedly dif-
ferent.
Mot. New Trial Tr. 87, May 12, 2004 (Docket No. 117)
(emphasis added).
The photograph of Rodriguez-Gallegos to which Judge
Carrol compared Jernigan was taken from the surveillance
video of the November 28, 2000 bank robbery. This photo-
graph, unlike the surveillance video of the September 20,
2000 bank robbery, does not suffer from a lack of quality.
Indeed, this photograph clearly portrays a woman bearing lit-
tle resemblance to Jernigan. Compare PE 15, with PE 2, and
PE 3.
Judge Carroll denied Jernigan’s motion for a new trial in a
written order stating:
The simple fact is that [Jernigan] and Rodriguez[-
Gallegos] do not look alike, whatever similarities
may be in their complexions or Hispanic appearance.
It is at best an oxymoron for the defense to claim
that Rodriguez[-Gallegos] is “probably” the Septem-
ber 20, 2000 robber, given the admission “that the
two women do not “ ‘look alike’ ”;
The Government’s arguments about the dif-
ferences in appearance between Jernigan
and Rodriguez-Gallegos are equally thin. In
the first place, the Government’s repeated
insistence that ‘Jernigan and Rodriguez[-
UNITED STATES v. JERNIGAN 8189
Gallegos] do not in fact look alike,’ e.g.
Response at 9, 11, is a straw man. The
defense has not argued the two women
‘look alike.’ (Defendant’s Reply Memoran-
dum, p.4, Dkt. 104).
Common sense says that if Defendant and Rodri-
guez do not look alike, the fact that they may share
similar physical characteristics such as height, racial
characteristics and poor complexions, does not sup-
port a finding or an “inference” that Rodriguez-
Gallegos robbed the Bank of America branch in Gil-
bert on September 20, 2000.
Order, January 21, 2005 (emphasis added).
If it is an “oxymoron” for the defense to claim Rodriguez-
Gallegos committed the earlier bank robberies, all the while
admitting Rodriguez-Gallegos does not look like Jernigan,
where does it leave the majority here? It leaves them with the
necessity to make appellate findings of fact directly contrary
to those made by Judge Carroll and conceded by the defense.
Consider, slowly, the import of such a view. All the appear-
ance characteristics of the two women contained in the wit-
ness descriptions are trotted out as circumstantial evidence to
show the Brady materiality of the November bank robberies.
These appearance characteristics are relevant to prove one
point and one point only: the two women look so much alike
that the jury should have been informed of the November rob-
beries because the jury could find that five eyewitnesses mis-
took Jernigan for Rodriguez-Gallegos, who actually
committed the earlier heists. But the importance—the
“materiality”—of this circumstantial evidence is abandoned
by Jernigan’s own counsel’s admission that even he does not
think the woman in the September 20, 2000 bank surveillance
8190 UNITED STATES v. JERNIGAN
video and Rodriguez-Gallegos look alike, and he affirma-
tively points out that he does not even argue that point.12
Not to worry. The majority’s interpretation of Brady is that
to be material under Brady, evidence must merely be distract-
ing, when considered alone. Perhaps the majority’s idea is
based on a notion that accuracy and truth are irrelevant con-
siderations in determining what arms should be given the
defendant to make the trial more of an even joust. That may
not be an uncommon notion in certain circles, but it has no
support in the law, as is obvious from the lack of any citation
to buttress this view.
II.
A.
The majority and I part company over the applicable stan-
dard of review. The majority affords the district court’s fac-
tual findings no deference. The majority follows our
precedent as to legal issues involving Brady materiality; such
issues of law are to be reviewed de novo. See United States
v. Lehman, 792 F.2d 899, 901 (9th Cir. 1986) (“We review
these questions of law de novo and may affirm the district
court on any ground supported by the record.” (citations omit-
ted)). But, we have not had the opportunity to consider what,
if any, deference should be afforded to a district court’s fac-
tual findings that bear on Brady materiality. This case pre-
sents the now squandered opportunity to do just that, and to
adopt the proper standard of review.
12
Indeed, on motion for new trial Jernigan’s defense counsel argued that
the September 2000 videotape was of such poor quality that one could not
rule out that it showed Rodriguez-Gallegos. This is a particularly weak
argument. If the September 2000 tape is undecipherable, it identifies no
one, rather than “possibly” someone. It no more identifies Rodriguez-
Gallegos than Paris Hilton.
UNITED STATES v. JERNIGAN 8191
Those of our sister circuits which have considered this
question in connection with Brady rulings afford deference to
the district court’s findings of fact. The First, Second, Third,
Fifth, Seventh, Eighth, Tenth, and Eleventh Circuits and the
United States Court of Appeals for the District of Columbia
all afford some level of deference to a district court’s factual
findings bearing on Brady materiality.13
13
See United States v. Madori, 419 F.3d 159, 169 (2d Cir. 2005)
(“Materiality in this context presents us with a mixed question of law and
fact. While the trial judge’s factual conclusions as to the effect of nondis-
closure are entitled to great weight, we examine the record de novo to
determine whether the evidence in question is material as a matter of
law.”); United States v. Vallejo, 297 F.3d 1154, 1163 (11th Cir. 2002)
(“Similarly, a district court’s denial of a motion for new trial based on a
Brady violation is reviewed for abuse of discretion.”); United States v.
Ryan, 153 F.3d 708, 711 (8th Cir. 1998) (“[Abuse of discretion] standard
also applies where, as here, a defendant seeks a new trial premised upon
a Brady claim. This deferential standard of review is especially appropri-
ate in the context of a lengthy, hard-fought, highly charged case like the
present one.” (citing United States v. Williams, 81 F.3d 1434, 1437 (7th
Cir. 1996) (citations omitted)); United States v. Boyd, 55 F.3d 239, 242
(7th Cir. 1995) (“But the other judgments that the district judge makes,
signally here the judgment whether some piece (or pieces) of evidence
wrongfully withheld by the government might if disclosed have changed
the outcome of the trial, are to be reviewed deferentially. This is not only
the rule; it is the dictate of common sense, especially in a case such as this.
Forget the 29 witnesses at the evidentiary hearing; forget there was an evi-
dentiary hearing on the motion for a new trial. Before then, during the
trial, Judge Aspen had for months on end listened to witnesses—had
heard, had not merely read, their testimony, and had watched them as they
gave it. And he had observed the jurors as they listened to the witnesses.
A trial judge of long experience, he would have developed a feel for the
impact of the witnesses on the jury—and how that impact might have been
different had the government played by the rules—that an appellate court,
confined to reading the transcript, cannot duplicate. Judge Aspen may
have been mistaken; we might suspect that he was mistaken; but unless we
are convinced that he was mistaken, we have no warrant to reverse. That
is what it means to say that appellate review is deferential. It is not abject,
but it is deferential.” (citations omitted)); United States v. Thornton, 1
F.3d 149, 158 (3rd Cir. 1993) (“In considering a district court’s ruling on
a motion for a new trial based on the failure to disclose Brady materials,
we will conduct a de novo review of the district court’s conclusions of law
8192 UNITED STATES v. JERNIGAN
As the United States Court of Appeals for the District of
Columbia has explained:
Generally, this court reviews the district court’s
grant of a new trial for abuse of discretion. However,
when confronted with a “purely legal question,” our
review is de novo. Brady claims present something
of a special situation. Thus, as to findings of fact
made by the district court, including determinations
of credibility made both at trial and in post-trial pro-
ceedings, this court would defer under an abuse of
discretion standard. But once the existence and con-
tent of undisclosed evidence has been established,
the assessment of the materiality of this evidence
under Brady is a question of law. In this inquiry, the
question of prejudice is folded into the determination
of whether a violation has occurred. As the Supreme
Court has explained, “strictly speaking, there is
never a real ‘Brady violation’ unless the nondisclo-
sure was so serious that there is a reasonable proba-
bility that the suppressed evidence would have
produced a different verdict.” Therefore, once a
as well as a ‘clearly erroneous’ review of any findings of fact where
appropriate. Where the district court applies the correct legal standard, its
weighing of the evidence merits deference from the Court of Appeals,
especially given the difficulty inherent in measuring the effect of a non-
disclosure on the course of a lengthy trial covering many witnesses and
exhibits.” (internal quotation marks and citations omitted)); United States
v. Sanchez, 917 F.2d 607, 618 (1st Cir. 1990) (“Due to its inherently fact-
bound nature the district court’s determination on the materiality of newly
discovered evidence in prosecutorial nondisclosure cases is ordinarily
accorded deference.”); United States v. Buchanan, 891 F.2d 1436, 1440
(10th Cir. 1989) (“We review the factual findings of a district court acting
pursuant to 28 U.S.C. § 2255 under the clearly erroneous standard. How-
ever, the materiality of withheld evidence under Brady and its possible
effect on the verdict are mixed questions of fact and law reviewed de
novo.” (citations omitted)).
UNITED STATES v. JERNIGAN 8193
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, 595-96 (D.C. Cir.
2007) (citations omitted) (emphasis added).
Likewise, the Fifth Circuit has explained:
The confusion stems in part from the mixed nature
of the Brady inquiry. Whereas we typically analyze
legal issues de novo, a Brady determination is inevi-
tably a contextual inquiry, involving questions of
both law and fact. Moreover, it is intimately inter-
twined with the trial proceedings: because the court
must judge the effect of the evidence on the jury’s
verdict, the Brady decision can never be divorced
from the narrative of the trial. In addition, the court
must consider not simply the withheld evidence in
isolation, but also the quantity and quality of other
evidence in the record.
In comparison to a district court ruling on a
motion for new trial, an appellate court reviewing a
Brady violation is at an inherent disadvantage. Gaug-
ing the effect that undisclosed evidence might have
had on the outcome of the trial is difficult in any
event, but it is made more so when it must be based
on a cold record. The district judge, by contrast, has
at least had the opportunity to hear the testimony at
trial firsthand, view the demeanor of the witnesses,
observe the ebb and flow of the evidence at trial, and
evaluate the strengths and weaknesses of the govern-
ment’s case. When, as here, the balance of evidence
presented is close, the outcome of the case will often
hinge on a subjective and personal evaluation of the
evidence and the witnesses. In such a context, some
degree of appellate deference makes sense.
8194 UNITED STATES v. JERNIGAN
We think there is a reconciling theme in our
facially competing approaches to Brady—based new
trial questions—adhering to decisions that examine
the Brady question anew, while acknowledging that
we must proceed with deference to the factual find-
ings underlying the district court’s decision. This
gives play to the trial court’s superior understanding
of the trial, evidence, and witnesses, while reviewing
the ultimate constitutional question afresh. It also
recognizes that in the new trial context concerns
respecting finality are less strong.
United States v. Sipe, 388 F.3d 471, 479 (5th Cir. 2004).
I would adopt the standard of review applied by our sister
circuits. Specifically, I would defer to the district court’s fac-
tual findings unless clearly erroneous, “[b]ut once the exis-
tence and content of undisclosed evidence has been
established, [treat] the assessment of the materiality of this
evidence under Brady [as] a question of law.” Oruche, 484
F.3d at 595. Here, there is no basis for concluding Judge Car-
roll was “clearly erroneous” in his finding that Jernigan’s
appearance is markedly different from that of Rodriguez-
Gallegos. Indeed, the majority does not even suggest a basis
for finding such error. Accordingly, as discussed below, there
is no basis for finding the non-disclosure of the November
bank robberies was “material” under Brady.
B.
The majority and I also part company over the majority’s
willingness to depart from precedent requiring Brady materi-
ality to be determined on the cumulative effect of the non-
disclosed evidence. The majority considers the undisclosed
witness descriptions from the November robberies in isolation
and concludes a Brady violation occurred. The question
before us, however, is whether the cumulative effect of the
undisclosed evidence—including the November 28, 2000 sur-
UNITED STATES v. JERNIGAN 8195
veillance video and photographs derived therefrom—was a
reasonable probability of a different result.
“[T]he state’s obligation under Brady v. Maryland to dis-
close evidence favorable to the defense, turns on the cumula-
tive effect of all such evidence suppressed by the
government.” Kyles, 514 U.S. at 421 (citation omitted). Thus,
although the tendency and force of undisclosed evidence must
be evaluated “item by item; there is no other way,” the materi-
ality of such evidence is a separate determination, based on
the effect of all the evidence, disclosed and undisclosed. Id.
at 436 n.10. Accordingly, the majority is correct in explaining
that when considering whether non-disclosed evidence would
have created a reasonable probability of a different result,
judges must “ ‘undertake a careful, balanced evaluation of the
nature and strength of both the evidence the defense was pre-
vented from presenting and the evidence each side presented
at trial.’ ” Baily v. Rae, 339 F.3d 1107, 1119 (9th Cir. 2003)
(quoting Boss v. Pierce, 263 F.3d 734, 745 (7th Cir. 2001)).
The majority, however, fails to conduct a balanced evalua-
tion of the non-disclosed evidence in this case. Specifically,
in determining Brady materiality the majority considers only
the undisclosed circumstantial evidence that suggests Jernigan
and Rodriguez-Gallegos are of similar appearance, i.e., the
witness descriptions. The majority fails to consider the direct
evidence establishing that Jernigan and Rodriguez-Gallegos
are “markedly different” in appearance, i.e., the November
28, 2000 surveillance video, the photograph of Jernigan, and
Jernigan herself. The majority’s failure to consider the last
item comes as no surprise because, unlike Judge Carroll, the
majority has never had the benefit of seeing Jernigan in per-
son.
Freed from Kyles’ requirement that the non-disclosed evi-
dence be evaluated “item by item” and that materiality be
determined based on the cumulative effect of all the evidence,
the majority rests its materiality determination on a finding
8196 UNITED STATES v. JERNIGAN
that the November robberies were committed by a woman
“whose description bore an uncanny physical resemblance” to
Jernigan. Having thus erred, the majority speculates the five
eyewitnesses who independently identified Jernigan as com-
mitting the September 20, 2000 bank robbery “simply picked
Jernigan out of the photospread because she was the woman
who looked the most like [Rodriguez-Gallegos].”
III.
As the majority explains, the touchstone of Brady material-
ity is whether admission of the suppressed evidence would
have created a “ ‘reasonable probability’ of a different result.”
Kyles, 514 U.S. at 434. “[T]he prosecution, which alone can
know what is undisclosed, must be assigned the consequent
responsibility to gauge the likely net effect of all such evi-
dence and make disclosure when the point of ‘reasonable
probability’ is reached.” Id. at 437 (emphasis added). Here,
the point of “reasonable probability” was never reached.
The non-disclosed evidence in this case does not create a
reasonable probability of a different result because it does not
support the inference that the five eyewitness who indepen-
dently identified Jernigan as having committed the September
20, 2000 bank robbery were mistaken. To do so, the non-
disclosed evidence would have to permit the inference that
Jernigan sufficiently resembles Rodriguez-Gallegos such that
Jernigan could be mistaken for Rodriguez-Gallegos.
Notwithstanding the witness statements, the district court
found the non-disclosed photographs taken from the surveil-
lance video of the November 28, 2000 bank robbery establish
that Jernigan and Rodriguez-Gallegos are “markedly differ-
ent” in appearance and “do not look alike, whatever similari-
ties may be in their complexions or Hispanic appearance.” In
addition, the district court found “someone having looked at
them under these circumstances would have been able to
make such a determination.” These findings are not clearly
UNITED STATES v. JERNIGAN 8197
erroneous. Moreover, Judge Carroll, who had the benefit of
observing Jernigan during the course of her four-day trial, was
in a better position than this court to determine whether Jerni-
gan resembles Rodriguez-Gallegos.
In short, I would defer to Judge Carroll’s factual findings,
conduct a de novo review of Brady materiality based on Judge
Carroll’s findings, and affirm.