Bagley v. Lumpkin

• Decision Date: 02 September 1986
• Docket Number: No. 82-3303,82-3303
• Citation: 798 F.2d 1297
• Parties: Hughes Anderson BAGLEY, Plaintiff-Appellant, v. Walter T. LUMPKIN, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1297

798 F.2d 1297

Hughes Anderson BAGLEY, Plaintiff-Appellant, v. Walter T. LUMPKIN, Defendant-Appellee.

No. 82-3303.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 7, 1983.

Decided Sept. 2, 1986.

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

David Marshall, Seattle, Wash., for defendant-appellee.

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

Before SKOPIL, PREGERSON, and FERGUSON, Circuit Judges.

FERGUSON, Circuit Judge:

The United States Supreme Court remanded this case to this court for a determination of whether the government's failure to disclose material impeachment evidence to defendant Hughes Anderson Bagley prior to trial "undermines confidence in the outcome of the trial," requiring reversal of Bagley's conviction. United States v. Bagley, --- U.S. ----, 105 S.Ct. 3375, 3381, 87 L.Ed.2d 481 (1985). We determine that it does, and reverse.

I.

In October 1977, a federal grand jury indicted Bagley on firearms and controlled substance violations. After a bench trial in December 1977, the district court acquitted him on the firearms charges and convicted him of the controlled substance violations.

A month before trial, Bagley requested that the government disclose, pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), exculpatory or impeachment information in its possession. Bagley requested information on

any deals, promises or inducements made to witnesses in exchange for their testimony[;] [a]ll information which would establish the reliability of the Milwaukee Railroad Employees [witnesses for the government] in this case[;] and copies of all material documents ... which is [sic] exculpatory to the defendant, which may be favorable to the defendant or which would assist in the preparation of his defense, under Brady v. Maryland, 373 U.S. 83[, 83 S.Ct. 1194, 10 L.Ed.2d 215] (1963) and subsequent cases. This would include but not be limited to: ... [p]romises or representations made to any persons the government intends to call as witnesses at trial.

The government responded by stating that it already had provided extensive discovery, including affidavits of two government witnesses acquainted with Bagley: James F. O'Connor and Donald E. Mitchell, special agents for Milwaukee Railroad who had assisted the Bureau of Alcohol, Tobacco & Firearms (ATF) investigation of Bagley. The affidavits recounted the agents' interactions with Bagley. Each affidavit stated: "I made this statement freely and voluntarily without any threats or rewards or promises of reward having been made to me in return for it."

At trial O'Connor and Mitchell provided the only testimony on the controlled substance charges. ¹ Bagley's cross-examination of the two on the controlled substance charges sought only to refute their substantive testimony. After O'Connor denied on cross-examination that the government pressured him in any way or made threats that his job would be jeopardized if he did not cooperate, Bagley did not pursue the issue of bias or self-interest with O'Connor or Mitchell.

Three years after his conviction, Bagley learned that O'Connor and Mitchell lied under oath when they stated in their affidavits that they had not been promised any reward for their cooperation. In fact, they were acting under inducements from the federal government. Six months before Bagley's trial, ATF paid O'Connor and Mitchell expense money for their part in the investigation of Bagley. ATF Agent Prin also told them he would try to obtain further compensation for them. The day before O'Connor and Mitchell signed the last of the affidavits disclaiming any promise of reward for their services, Agent Prin had each sign an ATF "Contract for Purchase of Information and Lump Sum Therefor." Agent Prin had not filled in the amount to be paid, or the specific information requested, but the contract stated that

said vendor will furnish ... information ... that upon receipt of such information by the Regional Director, Bureau of Alcohol, Tobacco and Firearms, or his representative, and upon the accomplishment of the objective sought to be obtained by the use of such information to the satisfaction of said Regional Director, the United States will pay to said vendor a sum commensurate with services and information rendered.

After trial, Agent Prin typed in the following description of the services:

That he will provide information regarding T-I and other violations committed by Hughes A. Bagley, Jr.; that he will purchase evidence for ATF, that he will cut [sic] in an undercover capacity for ATF, that he will assist ATF in gathering of evidence and testify against the violator in federal court.

He recommended that O'Connor and Mitchell each receive $500 for their services; they each received $300. The government disclosed these contracts three years after trial, only when Bagley filed a request for information under the Freedom of Information Act and Privacy Act of 1974, 5 U.S.C. Secs. 552, 552a.

When Bagley learned that, despite his requests for impeachment evidence before trial, the government had failed to produce evidence of the payments and inducements made to the witnesses, he filed a 28 U.S.C. Sec. 2255 motion in federal district court. Bagley argued that the government violated his due process rights under Brady by failing to produce evidence material to the witnesses' credibility.

After an evidentiary hearing, a United States magistrate recommended to the district court that it deny Bagley's motion. The district court judge was the same judge who conducted the bench trial and imposed sentence. In its order denying relief, the district court stated that it was "in a unique position of being able to know what effect the disclosure ... would have had upon the decisions made by this Court in the criminal prosecution." He concluded that "disclosure would have had no effect at all upon its finding that the government had proved beyond a reasonable doubt that defendant was guilty."

We reversed the district court. Bagley v. Lumpkin, 719 F.2d 1462 (9th Cir.1983), rev'd, --- U.S. ----, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). We held that "the government's failure to provide requested Brady information to Bagley so that he could effectively cross-examine two important government witnesses requires an automatic reversal." Id. at 1464.

The Supreme Court reversed our ruling that automatic reversal was required, and remanded to this court for us to determine whether the government's inducements to O'Connor and Mitchell, evidenced by the ATF contracts, were sufficiently material that there was a reasonable probability that "the result of the proceeding would have been different." United States v. Bagley, --- U.S. ----, 105 S.Ct. 3375, 3384, 87 L.Ed.2d 481 (1985). ²

II.

Bagley contends that the government's withholding of evidence was sufficiently material that his conviction should be reversed. He argues, therefore, that the district court erred in denying his section 2255 motion. We review de novo the district court's denial of a section 2255 motion. Jones v. United States, 783 F.2d 1477, 1479 (9th Cir.1986).

Every prosecutor has a duty to produce, on request by the defendant, evidence that is material to the defendant's guilt or punishment. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963). This obligation includes production of impeachment evidence. Bagley, 105 S.Ct. at 3381 (" 'When the "reliability of a given witness may well be determinative of guilt or innocence," nondisclosure of evidence affecting credibility falls within the general rule [of Brady ].' ") (quoting Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972)). Withholding such evidence is a constitutional error if it deprives a defendant of a fair trial. Id.; see also Brady, 373 U.S. at 87, 83 S.Ct. at 1196 ("[O]ur system of the administration of justice suffers when any accused is treated unfairly."). In Bagley the Supreme Court held that "a constitutional error occurs, and the conviction must be reversed, only if the evidence is material in the sense that its suppression undermines confidence in the outcome of the trial." ³ Bagley, 105 S.Ct. at 3381; see also United States v. Shaffer, 789 F.2d 682, 688 (9th Cir.1986). ⁴

To determine whether the impeachment evidence withheld here was sufficiently material to require reversal of Bagley's conviction, we must evaluate whether, "if disclosed and used effectively, [the impeachment evidence] may make the difference between conviction and acquittal." Bagley, 105 S.Ct. at 3380 (citing Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959)). Our task is to "consider directly any adverse effect that the prosecutor's failure to respond might have had on the preparation or presentation of the defendant's case," and to assess that effect "in light of the totality of the circumstances." Id. 105 S.Ct. at 3384.

The proper inquiry is an objective one: whether "the Government's failure to assist the defense by disclosing information that might have been helpful in conducting cross-examination" undermines confidence in the outcome of the trial. Id. at 3381. Therefore, the district judge erred when, in ruling on the section 2255 motion, he stated that the disclosure of the contracts would not have affected his decision. The inquiry is not how this or any other judge, as the trier of fact, would subjectively evaluate the evidence. It is, rather, how the absence of the evidence objectively might have affected the outcome of the trial.

The district court further erred by failing to recognize that the ATF contracts revealed that the witnesses lied under oath. The district court's findings of fact in this action take into account only the extent to which the contracts demonstrate possible bias or prejudice. It is...