In re Sealed Case (Brady Obligations)

• Decision Date: 21 July 1999
• Docket Number: No. 99-3096,99-3096
• Parties: (D.C. Cir. 1999) In re Sealed Case(Brady Obligations)
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 887

185 F.3d 887 (D.C. Cir. 1999)

In re Sealed Case No. 99-3096(Brady Obligations)

No. 99-3096

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 1, 1998

Decided July 21, 1999

Appeal from the United States District Court for the District of Columbia

Evelina J. Norwinski, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A.J. Kramer, Federal Public Defender. Reita P. Pendry, Chief Assistant Federal Public Defender, entered an appearance.

Chrisellen R. Kolb, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Wilma A. Lewis, U.S. Attorney, and John R. Fisher, Assistant U.S. Attorney.

Before: Edwards, Chief Judge, Henderson and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Garland.

Garland, Circuit Judge:

The defendant in this criminal case contends that the government improperly denied his repeated requests for information to which he was entitled under Brady v. Maryland, 373 U.S. 83 (1963). The government responds that because the information, if it exists, would relate to the impeachment of a defense witness, it falls outside the obligations imposed by Brady. Defendant replies that impeachment information always comes within the ambit of Brady, regardless whether the witness testifies for the defense or the prosecution.

We need not accept either of these broad claims to resolve this case. The information defendant seeks would not merely be impeaching in the sense that it would weaken the credibility of his own witness. Rather, it would be exculpatory in the sense that it would be affirmatively favorable to his assertion of innocence. Accordingly, such information comes within the scope of the government's Brady obligations. Because the government concedes that it has not searched to determine whether the requested information exists, we grant the defendant's request that the case be remanded to the district court. The government must first search to determine whether the information sought by defendant exists and, if it does, the district court must then determine whether that information is "material" within the meaning of Brady and its progeny.

I

In September 1996, an officer of the District of Columbia's Metropolitan Police Department (MPD) applied for a warrant to search the home of John Doe¹ for a handgun and ammunition. The officer submitted an affidavit stating that an unidentified informant had observed the gun and ammunition there within the last 48 hours. The affidavit continued: "The source that provided this information has ... given information which has led to the arrests of several subjects for narcotics violations, the recovery of one assault weapon, the arrests of subjects wanted on warrants and the issuance of two search warrants." Def. App. 11. A judge of the Superior Court of the District of Columbia granted the application.

The police executed the warrant the following morning. The officers found one semi-automatic handgun under the mattress in Doe's basement bedroom, and a second gun, along with ammunition, in a shoe box under the basement stairwell. Doe was arrested and questioned. He denied the guns were his, and denied knowing that they were in the house. He said he had seen one of the guns in the possession of a friend, Thomas Jones, a couple of days earlier. Def. App., Tab A at 51. Doe's girlfriend later testified that Doe and Jones had picked her up at the hospital the day before the search, and that after returning to Doe's house, Jones had spent some time in the basement alone. Id., Tab D at 29-30.

Doe was charged with unlawful possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g). In a pretrial motion filed in October 1996, Doe sought disclosure of the identity of the government's informant. Pursuant to Brady, he also sought production of information concerning, inter alia: (1) "the amount of money ... paid to the source," and whether it was "paid in exchange for information or otherwise"; (2) "other consideration provided to the source, including ... assistance in avoiding or minimizing harm from pending or threatened charges"; (3) "all benefits, promises of benefits, or statements that the source would not benefit absent cooperation ... in connection with this case"; (4) "the nature of assistance that the source has provided in the past"; and (5) "the source's prior record, pending cases, and parole and probation status." Def. App. 21. The court denied the request, ruling that defendant had not met the burden for piercing the government's informant privilege set forth in Roviaro v. United States, 353 U.S. 53 (1957), because "it is basically a position of speculation as to how the informer in this case might be helpful to the defendant ... as [the case] stands before the Court now...."Def. App., Tab A at 83.

Shortly before Doe's trial was scheduled to begin, Thomas Jones called Doe's attorney, told her that he had helpful information and asked to meet with her. In January 1997, the attorney, her investigator, and Jones met in a restaurant parking lot. According to the investigator's file memorandum, Jones told them that he was the government informant in Doe's case and that "he wanted to clear his conscience."Def. App. 29. He said that "he had a big gun and drug case in [District of Columbia] Superior Court and he had to work it off," and identified three detectives with whom he was cooperating. Jones said the guns found in Doe's apartment were his (Jones'). He said that the day before the execution of the search warrant, he and Doe had gone to pick up Doe's girlfriend at the hospital. When they returned to the house, Jones continued, he "hid the guns, one under the mattress and one in a box under the stairs." He did not tell Doe he was hiding the guns, and Doe did not know what he had done.Jones assured Doe's attorney that he would testify at Doe's trial. At the same time, he asked for assistance with his own legal problems: there was an outstanding bench warrant for his arrest, and Jones feared that the police would incarcerate him at the District of Columbia's correctional facility at Lorton, Virginia. "I can't go back to Lorton," he said, "because I snitched on so many people." Id.

Doe's trial began a week later. In her opening statement, Doe's attorney told the jury the evidence would show that Doe was innocent, and that Jones had planted the guns and ammunition in the house without Doe's knowledge. Def. App., Tab C at 12. Thereafter, Doe's attorney learned from the attorney in Jones' Superior Court case that Jones intended to invoke his Fifth Amendment privilege against self incrimination and would refuse to testify at Doe's trial. The next morning, Doe's attorney advised the court that, in order to get Jones' prior statements before the jury, she planned to introduce them through the testimony of her investigator as statements against Jones' penal interest, see Fed. R. Evid. 804(b)(3). Def. App., Tab D at 3-4.

At this point, the prosecutor questioned whether Jones really did have a Fifth Amendment privilege. After the court appointed a lawyer to advise Jones, Jones formally asserted his right not to testify. The prosecutor then asked "to speak with [Jones' lawyer] over the luncheon recess to see if we can reach some sort of accommodation ... which would permit him [Jones] to testify." Id. at 68. Doe's counsel then made a Brady request for Jones' "agreements with the government" in what she understood to be his "sealed" cases in Superior Court. Id. The prosecutor protested that "I don't have access to that information readily. I would have to go back to my office and try to pull out the old files and everything else." Id. The district court denied Doe's request as "premature," indicating that it did not want to decide the issue until it was determined that Jones would testify. Id. at 6869.

After the luncheon recess, Jones agreed to testify and the government advised the court that it had agreed to make arrangements for his safety. Suspecting that Jones had become an adverse witness during the break, defense counsel again requested production of Jones' "prior agreements with the government" and "sealed" case records. The court again put off decision, this time indicating it would not consider the issue until after Jones testified. Def. App., Tab E at 11.

Jones was then called to the witness stand by Doe's counsel. Although he denied that he had told her the names of police officers with whom he was cooperating or that he was "working off" a conviction in Superior Court, id. at 22, 27, Jones admitted that he had told her he was the confidential informant in Doe's case, id. at 19. He also admitted to confessing that, while he was alone in the basement, he had planted the guns under the mattress and stairwell without Doe's knowledge. Id. at 19-21.

On cross-examination by the prosecutor, Jones' story changed dramatically. He testified that his pre-trial statements to Doe's counsel were lies. The guns, Jones said, were Doe's. The day before the search, Doe had taken them out from underneath the mattress and stairwell to show to him. Id. at 33-38. Jones had lied about planting the weapons, he said, because "some dudes" had "threatened, if I didn't call his lawyer, and tell the guns was mine some bodily harm would be done to me." Id. at 27-28. After hearing Jones' testimony, defense counsel asked the court to declare him a hostile witness and to permit her to cross-examine him. See Fed. R. Evid. 611(c). The court agreed. Def. App., Tab E at 39.

At the same time, however, the court rejected defendant's renewed request for "information regarding [Jones'] sealed cases" and "agreements he's made with the government regarding those cases." Id. The court denied the request regarding the sealed cases saying, "I'm not going to at this late juncture make any effort to get those...