U.S. v. Brooks

• Citation: 296 U.S. App. D.C. 219,966 F.2d 1500
• Decision Date: 19 June 1992
• Docket Number: No. 91-3235,91-3235
• Parties: UNITED STATES of America, Appellee, v. Xavier BROOKS, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 1500

966 F.2d 1500

296 U.S.App.D.C. 219

UNITED STATES of America, Appellee, v. Xavier BROOKS, Appellant.

No. 91-3235.

United States Court of Appeals,

District of Columbia Circuit.

Argued March 6, 1992.

Decided June 19, 1992.

Appeal from the United States District Court for the District of Columbia (Criminal Number 90-00332-01).

Mary E. Davis, with whom Christopher M. Davis (appointed by the Court) was on the brief, for appellant.

G. Bradley Weinsheimer, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John R. Fisher, Thomas C. Black, and Erik P. Christian, Asst. U.S. Attys., were on the brief, for appellee.

Before: MIKVA, Chief Judge, SILBERMAN and WILLIAMS, Circuit Judges.

Opinion for the Court filed by Circuit Judge WILLIAMS.

STEPHEN F. WILLIAMS, Circuit Judge:

A jury found Xavier Brooks guilty of various drug charges in October 1990. ¹ About six weeks after that trial, police officer Christie Hoyle, the government's chief witness, was fatally shot in the apartment of a fellow officer, David Rowland, evidently with her own service revolver. Later (and apparently without knowledge of the shooting), the judge granted a motion for a new trial, explaining that he was troubled by discrepancies in the testimony, by behavior of the defendant that seemed not to match that of a competent drug dealer, and by a possibly erroneous admission of evidence. See Order and Memorandum of February 19, 1991 (D.D.C. No. 90-0332). At the second trial, the government offered the transcript of Hoyle's original testimony under Federal Rule of Evidence 804(b)(1), which allows use of an unavailable witness's former testimony under some circumstances, and the court admitted it. A second guilty verdict followed. Because the government failed to check pertinent files for information possibly reflecting on Hoyle's credibility, see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), we remand for the trial court to require such a search.

* * * * * *

Before the start of the second trial, defense counsel sought either to secure, or to cause the court to examine, any files of the Metropolitan Police Department relating to Hoyle's death. ² Understandably, counsel was somewhat vague on what he expected the files to show, but the gist of his argument was that a police officer shot with her own revolver in the presence of a fellow officer might have had some sort of problem that would bear on her credibility. As Officer Rowland had been present, defense counsel focussed on the possibility of an "Internal Affairs Division" file on Rowland and his relation to the death. Vernon Gill, General Counsel of the Police Department, attended a preliminary session of court, bringing with him Hoyle's personnel file. The district judge read the personnel file and declared it free of material undermining Hoyle's credibility. In addition, Gill represented to the court that there was no Internal Affairs Division investigation of Hoyle or her death. At the same time, he noted that he had not been asked whether there was a homicide investigation file, and that he had "no knowledge" of any such file but that he presumed one existed. The Assistant U.S. Attorney, inadvertently we assume, recharacterized Gill's statements as a denial that there was a "file by the Internal Affairs Division or anything concerning officer Christie Hoyle" (emphasis added). It is plain that Gill did not deny the existence of an Internal Affairs file on Rowland, which might bear on Hoyle's conduct or character, or the existence of a homicide file on the shooting itself. ³ The assistant's mischaracterization, however, suggests the presence of considerable confusion in the courtroom, confusion that the assistant's mischaracterization doubtless aggravated.

We need not review the evidence at trial, except to note that Hoyle's testimony was plainly critical. She said that she purchased crack from Brooks for $40 and that she saw him hide some ziplock bags containing rock-like substances, bags that other officers later found in the place she identified. Without this evidence, the government had no case against Brooks, as only Hoyle's testimony linked him to the crack she said she bought from him or to the stash of crack found by the other officers.

Brooks's claim here raises two threshold issues that this circuit has expressly left open, see United States v. Kelly, 790 F.2d 130, 135 n. 2 (1986): first, whether the prosecution's Brady obligations include not only a duty to disclose exculpatory information, but also a duty to search possible sources for such information; second, if the duty exists, whether it extends to files in the possession of agencies other than the prosecutor's office (conceived here as simply the U.S. Attorney's office).

In resolving these questions, the Supreme Court's identification of the essence of the Brady rule is of little help:

The heart of the holding in Brady is the prosecution's suppression of evidence, in the face of a defense production request, where the evidence is favorable to the accused and is material either to guilt or to punishment. Important, then, are (a) suppression by the prosecution after a request by the defense, (b) the evidence's favorable character for the defense, and (c) the materiality of the evidence.

Moore v. Illinois, 408 U.S. 786, 794-95, 92 S.Ct. 2562, 2567-68, 33 L.Ed.2d 706 (1972). This does not speak directly to information that is available to the prosecution but of which none of the prosecutors was aware. The Court, has, however, made clear that the test is an objective one, not dependent in any way on prosecutorial bad faith, see Brady, 373 U.S. at 87, 83 S.Ct. at 2567-68, so the rule is framed in a way that permits its application to facts of which the prosecutors are ignorant. In one case, the Supreme Court appears to have assumed extension of the rule to unsearched files outside the prosecutor's office. Pennsylvania v. Ritchie, 480 U.S. 39, 57, 107 S.Ct. 989, 1001, 94 L.Ed.2d 40 (1987). We conclude that that assumption is the law and join the three circuits that have addressed the matter, the 3rd, 5th and 7th, in answering both questions affirmatively.

In extending the Brady duty to searches for evidence, the 5th Circuit framed the matter as one of incentives for the government, arguing that without the extension "we would be inviting and placing a premium on conduct unworthy of representatives of the United States Government." United States v. Auten, 632 F.2d 478, 481 (5th Cir.1980). The 7th Circuit has sounded a similar note, warning that "a prosecutor's office cannot get around Brady by keeping itself in ignorance, or compartmentalizing information about different aspects of a case." Carey v. Duckworth, 738 F.2d 875, 878 (7th Cir.1984). The 3rd Circuit, while following the 5th Circuit's Auten decision, did not refer to incentives directly, although its observation that the U.S. Attorney's failure to check an obvious database for a key witness's criminal conviction "amounted to conduct unworthy of the United States Attorney's Office", United States v. Perdomo, 929 F.2d 967, 970-71 (3rd Cir.1991), may rest on the same judgment.

Of course the prosecutor's own interest in avoiding surprise at trial gives him a very considerable incentive to search accessible files for possibly exculpatory evidence, quite independent of Brady. Accordingly there is less need for a judicially constructed incentive than in the classic Brady situation, where prosecutors already possess the information but may have little incentive to divulge it apart from the Brady rule itself. We suspect the courts' willingness to insist on an affirmative duty of inquiry may stem primarily from a sense that an inaccurate conviction based on government failure to turn over an easily turned rock is essentially as offensive as one based on government non-disclosure. See, e.g., Calley v. Callaway, 519 F.2d 184, 223 (5th Cir.1975) (en banc) (reflecting concern for "inherent fairness").

The cases finding a duty to search have involved files maintained by branches of government "closely aligned with the prosecution", United States ex rel. Fairman, 769 F.2d 386, 391 (7th Cir.1985), and in each case the court has found the bureaucratic boundary too weak to limit the duty. Thus in Auten the duty reached the key witness's convictions in the FBI and National Crime Information Center files, see 632 F.2d at 480-81; in United States v. Deutsch, 475 F.2d 55 (5th Cir.1973)--possible adverse information in the personnel file of a Post Office employee who testified that defendants sought to bribe him; in Fairman (a state prosecution)--the worksheet of a Chicago police officer who had testified for the prosecution at a trial involving an attack on Chicago police officers. But cf. United States v. Zavala, 839 F.2d 523, 528 (9th Cir.1988) (Brady does not extend to reports in the hands of the court or probation office). Given the close working relationship between the Washington metropolitan police and the U.S. Attorney for the District of Columbia (who prosecutes both federal and District crimes, in both the federal and Superior courts), a relationship obviously at work in this prosecution, the duty must reach the police department's homicide and Internal Affairs Division files.

The final question, then, is whether the duty to search was triggered here. In some cases, the duty to search flows straight from the nature of the files. In Auten, for example, once the court decided that the Brady duty could ever require prosecutors to search FBI and National Crime Information Center records, it felt no need to explain why that duty applied as to the government's key witness. Where the file's link to the case is less clear, the court must also consider whether there was enough of a prospect of exculpatory materials to warrant a search. Here we think there was.

We recognize that the probability is low that any of the police department...