719 F.2d 1462 (9th Cir. 1983), 82-3303, Bagley v. Lumpkin

Docket Nº:82-3303.
Citation:719 F.2d 1462
Party Name:Hughes Anderson BAGLEY, Petitioner-Appellant, v. Walter T. LUMPKIN, Warden, Respondent-Appellee.
Case Date:November 10, 1983
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1462

719 F.2d 1462 (9th Cir. 1983)

Hughes Anderson BAGLEY, Petitioner-Appellant,

v.

Walter T. LUMPKIN, Warden, Respondent-Appellee.

No. 82-3303.

United States Court of Appeals, Ninth Circuit

November 10, 1983

Argued and Submitted Feb. 7, 1983.

Michael G. Martin, Asst. Federal Public Defender, Seattle, Wash., for petitioner-appellant.

David Marshall, Asst. U.S. Atty., Seattle, Wash., for respondent-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before SKOPIL, PREGERSON and FERGUSON, Circuit Judges.

PREGERSON, Circuit Judge:

Appellant Bagley, now on parole, appeals from the district court's order denying his 28 U.S.C. Sec. 2255 (1976) motion to vacate, set aside, or correct his sentence. He contends (1) that the government's willful nondisclosure of impeachment evidence requested before trial denied him effective cross-examination of two key government witnesses, and (2) that the government's failure to disclose the requested information resulted in an uninformed and therefore unconstitutional jury waiver. We need address only the first of these contentions because Bagley failed to raise the jury waiver argument below. See Egger v. United States, 509 F.2d 745, 749 (9th Cir.1975). We reverse.

FACTS

Bagley was charged in a fifteen-count indictment with firearms and narcotics violations.

Page 1463

On November 18, 1977, twenty-four days before trial, Bagley filed discovery motions requesting the prosecutor to disclose various items of information, including whether the government paid or promised compensation to any of its witnesses or informants. The government responded by providing affidavits from its key witnesses, James F. O'Connor and Donald E. Mitchell, each of whom stated that he had neither received nor expected compensation for his services.

O'Connor and Mitchell were commissioned Washington State law enforcement officers working as deputies for the Milwaukee Railroad during the Bureau of Alcohol, Tobacco, and Firearms (ATF) investigation of Bagley. Unknown to either Bagley or the district court judge during the bench trial, O'Connor and Mitchell had been informed by ATF Agent Prins that the ATF would attempt to pay them "expense money" in exchange for their investigatory services. In fact, O'Connor and Mitchell had each signed an ATF contract entitled "Contract for Purchase of Information and Lump Sum Therefor."

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