U.S. v. Price, 05-30323.

Citation566 F.3d 900
Decision Date21 May 2009
Docket NumberNo. 06-30157.,No. 05-30323.,05-30323.,06-30157.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Delray PRICE, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Delray Price, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Thomas H. Edmonds, Assistant United States Attorney, United States Attorney's Office for the District of Oregon, Portland, OR, for the plaintiff-appellee.

Frank Noonan, Assistant United States Attorney, United States Attorney's Office for the District of Oregon, Portland, OR, for the plaintiff-appellee.

Kelly A. Zusman, Assistant United States Attorney, United States Attorney's Office for the District of Oregon, (argued), Portland, OR, for the plaintiff-appellee.

Michael R. Levine and Matthew G. McHenry, (on the briefs), Portland, OR, for the defendant-appellant.

Appeal from the United States District Court for the District of Oregon, Michael W. Mosman, District Judge, Presiding. D.C. No. CR-04-00364-MO.

Before: ALFRED T. GOODWIN, HARRY PREGERSON and STEPHEN REINHARDT, Circuit Judges.

REINHARDT, Circuit Judge:

Delray Price was convicted of being a felon in possession of a firearm after Portland police officers found a gun hidden beneath the driver's seat of a car in which he was riding in the rear. Although the government presented circumstantial evidence that Price placed the firearm under the seat as the car was being pulled over, the evidence that sealed his fate at trial was testimony from a witness named Antoinette Phillips. Phillips testified that approximately fifteen minutes before Price was pulled over he was with her and some friends at her aunt's home when she saw a gun tucked into the waistband of his pants. Price's defense attorney vigorously attacked other aspects of the government's case at trial, but he could not overcome this direct evidence of Price's guilt. Price was convicted and sentenced to nearly eight years in prison.

What Price and his attorney did not know is that Antoinette Phillips has a lengthy history of run-ins with the Portland police that suggests that she has little regard for truth and honesty. In addition to being convicted of theft, she has been arrested multiple times for shoplifting and police records show at least one act of "theft by deception." She has also been convicted several times for fraudulently using false registration tags on her vehicle—a violation she continued to commit after each conviction, stopping only when a frustrated police officer finally scraped the false tags off of her license plates himself.

Price did not know about Phillips' multiple acts of fraud or dishonesty reflected in police reports, as well as in her police record—and therefore could not impeach her with that information—because the prosecutor never disclosed it to defense counsel. Price's counsel explicitly requested from the prosecutor "any evidence that any prospective Government witness has engaged in any criminal act, whether or not resulting in conviction," but all he received was evidence of Phillips' single conviction for second-degree theft. It is not clear whether the prosecutor himself ever possessed information that would have revealed Phillips' various acts of misconduct; at Price's new trial hearing, the prosecutor testified only that he did not "have [a] specific recollection" as to what information he personally possessed. However, what is clear is that, regardless of his own personal knowledge, the prosecutor utterly failed in his "duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police." Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (emphases added). There is no doubt that the prosecutor instructed his lead investigative agent, a member of the Portland Police Department, "to run a criminal history check on Ms. Phillips." It is also beyond doubt that, in the prosecutor's own words, "the Portland Police Data System, generally will reflect any police contacts that [an] individual has had." However, as the prosecutor's testimony further reveals, he did not know or recall the results of the investigation that he directed his agent to undertake. Rather, when asked if the agent had in fact uncovered the details of Phillips' criminal history, the prosecutor could only respond, "He may have.... I can't say for sure."

Under longstanding principles of constitutional due process, information in the possession of the prosecutor and his investigating officers that is helpful to the defendant, including evidence that might tend to impeach a government witness, must be disclosed to the defense prior to trial. It is equally clear that a prosecutor cannot evade this duty simply by becoming or remaining ignorant of the fruits of his agents' investigations. Because, here, the prosecutor failed to fulfill his duty to learn of and disclose favorable evidence that likely was in the possession of his lead investigating officer, and because the evidence of Phillips' criminal history is material, we hold that the prosecutor violated Price's rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny. Accordingly, we reverse the denial of Price's motion for a new trial.1

I.

On the evening of March 6, 2004, Portland police officers observed two young black men, whom they knew to be the subjects of outstanding parole-violation warrants, riding in the back seat of a two-door Plymouth Sundance that belonged to a young woman named Rosie Lewis. Lewis was driving the car, and one of her friends, Rebecca Jones, was sitting in the front-passenger seat. Two officers pulled behind the car to institute a stop while a third officer drove alongside it in a separate, unmarked civilian vehicle. All three officers testified that when the cruiser turned on its emergency lights, they observed one of the two young men, appellant Delray Price, who was seated behind the driver, bend over so that much of his upper body was out of sight. All of the officers stated that they believed Price was placing something underneath the seat in front of him.

Once the car came to a stop and Price and the other backseat passenger were placed under arrest pursuant to their warrants, Officer Joseph Santos searched the car, concentrating on the area beneath the driver's seat where he believed Price had hidden an object. According to his trial testimony, Officer Santos first looked under the seat from the rear, but was unable to see anything; however, when he reached under the seat from the front, he felt a gun on the floor. The gun, he later testified, was located behind a small lip that separated the area beneath the front of the seat, which was most easily accessible by the driver, from the area beneath the back of the seat, which was most easily accessible by a passenger in the rear. According to Officer Santos, he lifted the gun onto the top of the lip—to a position equally accessible by both the driver and the rear-seat passenger—so that it would be visible from his vantage point. He then took a picture of the gun in its new position. Contrary to police department protocol regarding the proper treatment of evidence, Officer Santos did not take a picture of the gun in the position in which he claims to have originally found it.

Six months later, Price was indicted on three federal felony charges: being a felon in possession of a firearm, possession with intent to distribute marijuana, and carrying a firearm in relation to drug trafficking.2 We are here concerned only with the felon-in-possession charge. Much of the government's case relating to that charge consisted of circumstantial evidence, which Price's counsel vigorously attacked.3 However, the government introduced one central piece of direct evidence to which Price's counsel had no effective response. That evidence came from witness Antoinette Phillips who testified that she saw the gun that was ultimately retrieved from the car sticking out of Price's waistband minutes before he entered the vehicle and shortly before the police pulled him over. Phillips testified that she, her cousin, and the occupants of the car, including Price had all met at her aunt's house earlier in the evening and had planned to go to a movie. According to Phillips, while at the house Price was sitting in her cousin's room and, when he stood up, she saw the handle of a gun in his waistband. When shown at trial the gun that was retrieved from the vehicle, Phillips testified that the handle looked the same as the handle of the gun she saw in Price's waistband.

Price's attorney sought to impeach Phillips by challenging her memory and her perception. He first asked her if she had smoked marijuana before Price came over to her aunt's house and later asked if she could have possibly confused a cell phone or pager for the handle of a gun. Although Phillips admitted to having smoked marijuana earlier in the evening, she responded to the latter line of questioning by simply reaffirming that what she saw in Price's waistband "looked like a gun to [her]." Price's attorney made no effort to impeach Phillips by challenging her honesty or truthfulness.

The prosecutor relied heavily on Phillips' testimony in his closing argument, stating to the jury, "[Y]ou have direct evidence of an eyewitness who saw this [gun] sticking out of the defendant's waistband, and she took the witness stand, Antoinette Phillips." He dismissed defense counsel's attempts to question Phillips' memory or perception by reminding the jury that Phillips unequivocally stated "No, it wasn't a pager." He then argued, "She knew what she saw.... [T]his item, ladies and gentleman, is something that people are going to remember seeing." The prosecutor further relied on Phillips' testimony to rehabilitate other aspects of his case-in-chief. Although he acknowledged that Officer...

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