890 F.2d 1056 (9th Cir. 1989), 86-6313, United States v. Kennedy

Docket Nº86-6313
Citation890 F.2d 1056
Party NameUNITED STATES of America, Plaintiff-Appellee, v. Michael Edward KENNEDY, Defendant-Appellant.
Case DateMarch 16, 1989
CourtUnited States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1056

890 F.2d 1056 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,

v.

Michael Edward KENNEDY, Defendant-Appellant.

No. 86-6313

United States Court of Appeals, Ninth Circuit

March 16, 1989

Argued and Submitted Aug. 3, 1988.

As Amended on Denial of Rehearing

and Rehearing En Banc Nov. 28, 1989.

Page 1057

Judy Clarke, Federal Defenders of San Diego, Inc., San Diego, Cal., for defendant-appellant.

Thomas M. Coffin, Sp. Asst. U.S. Atty., Eugene, Or., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California.

Before HALL and LEAVY, Circuit Judges, and GEORGE, [*] District Judge.

CYNTHIA HOLCOMB HALL, Circuit Judge:

Michael Edward Kennedy, a federal prisoner, timely appeals from the denial of a 28 U.S.C. Sec. 2255 motion to vacate his convictions for felony murder and rape. Kennedy contends the district court erred when it held that the government's failure to disclose a letter containing allegedly exculpatory information did not violate Kennedy's due process rights. We affirm the district court order.

I

Kennedy was indicted in February 1980 for murder, felony murder, and rape, arising from the 1979 rape and murder of Maria Lopez de Felix. The juries at Kennedy's first two trials were unable to reach verdicts. Midway through the second trial, the court granted Kennedy's motion for judgment of acquittal on the murder charge, but denied the motion for the felony murder and rape charges. On December 15, 1980, a third jury found Kennedy guilty of rape and felony murder. The district court sentenced Kennedy to two concurrent life sentences. This court affirmed the convictions. See United States v. Kennedy, 714 F.2d 968 (9th Cir.1983), cert. denied, 465 U.S. 1034, 104 S.Ct. 1305, 79 L.Ed.2d 704 (1984).

On May 14, 1985, Kennedy filed a 28 U.S.C. Sec. 2255 motion to vacate his convictions on grounds that the government improperly suppressed a letter it had received from Dr. John Burton that contained allegedly exculpatory evidence. 1 The district court held an evidentiary hearing on Kennedy's motion and denied it.

During each of Kennedy's three trials, the defense presented testimony by Dr. Thomas T. Noguchi, an expert in forensic pathology. Dr. Noguchi testified that the degree of rigor mortis in a victim's body was a reliable indicator of the time of death. 2 He also stated, after reviewing police and autopsy reports, that he believed Lopez had died six to eighteen hours before her body was discovered--a conclusion that tended to exculpate Kennedy. During the cross-examination, the government attempted to impeach Dr. Noguchi's testimony with excerpts from articles written by Dr. Burton, stating that rigor mortis was a

Page 1058

highly unreliable indicator of a victim's time of death.

After the completion of the first trial, the government sent a copy of Dr. Noguchi's testimony to Dr. Burton for his critique. Dr. Burton responded on August 2, 1980 with a letter expressing his opinion that Lopez' death occurred from "one to four hours before she was found dead." The government later determined that Dr. Burton's phrase "before she was found dead" referred to the time at which the coroner examined Lopez' body. 3 The government sent a copy of Dr. Burton's letter to Kennedy in June 1982, two and one-half years after his convictions.

In May 1985, the government sent additional transcripts from Kennedy's first trial to Dr. Burton for his review. These included transcripts of (1) the testimony of Joseph Cogen, the deputy coroner who made the original examination of Lopez, (2) the testimony of Dr. Francis Luibel, the physician who conducted the autopsy of Lopez' body and who appeared as the government's expert witness, and (3) the testimony of Dr. Noguchi. Dr. Burton responded on May 15, 1985 with a letter stating that his original opinion was incorrect and that he now fully agreed with Dr. Luibel's opinion that Lopez died as much as thirty-six to forty hours prior to the finding of her body, a statement tending to inculpate Kennedy. Dr. Burton later incorporated his May 1985 letter into a sworn affidavit.

On March 1, 1986, Kennedy's attorneys presented Dr. Burton with transcripts of testimony given at Kennedy's third trial by Mr. Cogen, and Drs. Luibel and Noguchi. After reviewing these transcripts, Dr. Burton changed his opinion again, this time stating that Lopez had died zero to sixteen hours before her body was discovered.

II

We must decide whether the district court erred by holding that the government's failure to disclose Dr. Burton's letter did not violate Kennedy's due process rights. 4 This court reviews de novo challenges to a conviction based on a Brady violation. United States v. Gordon, 844 F.2d 1397, 1402 (9th Cir.1988). The court also reviews de novo the denial of a Sec. 2255 motion. See United States v. Grewal, 825 F.2d 220, 222 (9th Cir.1987).

The government has a duty to disclose to a defendant, upon request, information that is favorable to an accused "where the evidence is material either to guilt or punishment." United States v. Bagley, 473 U.S. 667, 683, 105 S.Ct. 3375, 3384, 87 L.Ed.2d 481 (1985); Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-1197, 10 L.Ed.2d 215 (1963). The Brady doctrine has been expanded to include cases where the defendant has not requested the relevant material. See United States v. Agurs, 427 U.S. 97, 107, 96 S.Ct. 2392, 2399, 49 L.Ed.2d 342 (1976). Evidence is material under Brady "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence

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in the outcome." Bagley, 473 U.S. at 682, 105 S.Ct. at 3383.

Here, the government received a letter in 1980 from Dr. John Burton, a pathology expert. Dr. Burton's letter was in response to a government request for a critique of the testimony of Kennedy's expert witness. In the letter, Dr. Burton stated an opinion as to the time of death of Kennedy's alleged victim which tended to exculpate Kennedy.

It is not clear whether the Brady doctrine is limited to the actual materials in a prosecutor's possession, or whether it also includes information that the defendant reasonably could acquire after the prosecution's disclosure of the materials. However, in Lee v. United States, 388 F.2d 737, 739 (9th Cir.1968), this court stated: "Upon a motion for new trial based upon nondisclosure of evidence ... the precise issue is what the Government had learned from the witness in question ... rather than what this witness might now state under examination by the defendant." 5

Lee suggests we should consider only the materiality of Dr. Burton's letter, in and of itself. See id. at 739; see also United States v. Chen, 754 F.2d 817, 824 (9th Cir.1985). As the Supreme Court has recently stated, however, in determining the materiality of undisclosed information, a reviewing court may consider "any adverse effect that the prosecutor's failure to respond might have had on the preparation or presentation of the defendant's case." Bagley, 473 U.S. at 683, 105 S.Ct. at 3384. Accordingly, we will discuss both the materiality of Dr. Burton's letter and the materiality of Dr. Burton's expected testimony had he been called as a witness at one of Kennedy's trials.

A

Kennedy first argues that Dr. Burton's letter is itself Brady material. Because the letter is hearsay, however, it is not admissible as substantive evidence. See Fed.R.Evid. 801, 802. Furthermore, although impeachment evidence falls within the Brady doctrine if it is material to guilt or innocence, see Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972), and see Bagley, 473 U.S. at 676, 105 S.Ct. at 3380, Dr. Burton's letter has no such effect.

To be material under...

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