FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 05-30323 Plaintiff-Appellee, v. D.C. No. CR-04-00364-MO DELRAY PRICE, Defendant-Appellant.
UNITED STATES OF AMERICA, No. 06-30157 Plaintiff-Appellee, v. D.C. No. CR-04-00364-MO DELRAY PRICE, OPINION Defendant-Appellant. Appeal from the United States District Court for the District of Oregon Michael W. Mosman, District Judge, Presiding
Argued and Submitted July 8, 2008—Portland, Oregon
Filed May 21, 2009
Before: Alfred T. Goodwin, Harry Pregerson and Stephen Reinhardt, Circuit Judges.
Opinion by Judge Reinhardt
6039 6042 UNITED STATES v. PRICE
COUNSEL
Thomas H. Edmonds, Assistant United States Attorney, United States Attorney’s Office for the District of Oregon, Portland, Oregon, for the plaintiff-appellee.
Frank Noonan, Assistant United States Attorney, United States Attorney’s Office for the District of Oregon, Portland, Oregon, for the plaintiff-appellee. UNITED STATES v. PRICE 6043 Kelly A. Zusman, Assistant United States Attorney, United States Attorney’s Office for the District of Oregon, Portland, Oregon, for the plaintiff-appellee (argued).
Michael R. Levine, Portland, Oregon, for the defendant- appellant (argued).
OPINION
REINHARDT, Circuit Judge:
Delray Price was convicted of being a felon in possession of a firearm after Portland police officers found a gun hidden beneath the driver’s seat of a car in which he was riding in the rear. Although the government presented circumstantial evi- dence that Price placed the firearm under the seat as the car was being pulled over, the evidence that sealed his fate at trial was testimony from a witness named Antoinette Phillips. Phillips testified that approximately fifteen minutes before Price was pulled over he was with her and some friends at her aunt’s home when she saw a gun tucked into the waistband of his pants. Price’s defense attorney vigorously attacked other aspects of the government’s case at trial, but he could not overcome this direct evidence of Price’s guilt. Price was convicted and sentenced to nearly eight years in prison.
What Price and his attorney did not know is that Antoinette Phillips has a lengthy history of run-ins with the Portland police that suggests that she has little regard for truth and hon- esty. In addition to being convicted of theft, she has been arrested multiple times for shoplifting and police records show at least one act of “theft by deception.” She has also been convicted several times for fraudulently using false reg- istration tags on her vehicle — a violation she continued to commit after each conviction, stopping only when a frustrated police officer finally scraped the false tags off of her license plates himself. 6044 UNITED STATES v. PRICE Price did not know about Phillips’ multiple acts of fraud or dishonesty reflected in police reports, as well as in her police record — and therefore could not impeach her with that infor- mation — because the prosecutor never disclosed it to defense counsel. Price’s counsel explicitly requested from the prose- cutor “any evidence that any prospective Government witness has engaged in any criminal act, whether or not resulting in conviction,” but all he received was evidence of Phillips’ sin- gle conviction for second-degree theft. It is not clear whether the prosecutor himself ever possessed information that would have revealed Phillips’ various acts of misconduct; at Price’s new trial hearing, the prosecutor testified only that he did not “have [a] specific recollection” as to what information he per- sonally possessed. However, what is clear is that, regardless of his own personal knowledge, the prosecutor utterly failed in his “duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, includ- ing the police.” Kyles v. Whitley, 514 U.S. 419, 437 (1995) (emphases added). There is no doubt that the prosecutor instructed his lead investigative agent, a member of the Port- land Police Department, “to run a criminal history check on Ms. Phillips.” It is also beyond doubt that, in the prosecutor’s own words, “the Portland Police Data System, generally will reflect any police contacts that [an] individual has had.” How- ever, as the prosecutor’s testimony further reveals, he did not know or recall the results of the investigation that he directed his agent to undertake. Rather, when asked if the agent had in fact uncovered the details of Phillips’ criminal history, the prosecutor could only respond, “He may have . . . . I can’t say for sure.”
Under longstanding principles of constitutional due pro- cess, information in the possession of the prosecutor and his investigating officers that is helpful to the defendant, includ- ing evidence that might tend to impeach a government wit- ness, must be disclosed to the defense prior to trial. It is equally clear that a prosecutor cannot evade this duty simply by becoming or remaining ignorant of the fruits of his agents’ UNITED STATES v. PRICE 6045 investigations. Because, here, the prosecutor failed to fulfill his duty to learn of and disclose favorable evidence that likely was in the possession of his lead investigating officer, and because the evidence of Phillips’ criminal history is material, we hold that the prosecutor violated Price’s rights under Brady v. Maryland, 373 U.S. 83 (1963), and its progeny. Accordingly, we reverse the denial of Price’s motion for a new trial.1
I.
On the evening of March 6, 2004, Portland police officers observed two young black men, whom they knew to be the subjects of outstanding parole-violation warrants, riding in the back seat of a two-door Plymouth Sundance that belonged to a young woman named Rosie Lewis. Lewis was driving the car, and one of her friends, Rebecca Jones, was sitting in the front-passenger seat. Two officers pulled behind the car to institute a stop while a third officer drove alongside it in a separate, unmarked civilian vehicle. All three officers testified that when the cruiser turned on its emergency lights, they observed one of the two young men, appellant Delray Price, who was seated behind the driver, bend over so that much of his upper body was out of sight. All of the officers stated that they believed Price was placing something underneath the seat in front of him. 1 The appeal from the denial of Price’s motion for a new trial was con- solidated with Price’s direct appeal in which he raises two trial-error chal- lenges and also challenges the validity of his sentence. Because we grant Price a new trial in appeal No. 06-30157, we dismiss as moot appeal No. 05-30323. See Felster Publ’g v. Burrell, 415 F.3d 994, 998 (9th Cir. 2005) (“ ‘The test for mootness of an appeal is whether the appellate court can give the appellant any effective relief in the event that it decides the matter on the merits in his favor. . . .’ In [this] case, no such relief could . . . be[ ] granted given that [the defendant] ha[s] already gotten the relief he sought . . . .” (internal citations omitted) (quoting Garcia v. Lawn, 805 F.2d 1400, 1402 (9th Cir. 1986)). 6046 UNITED STATES v. PRICE Once the car came to a stop and Price and the other back- seat passenger were placed under arrest pursuant to their war- rants, Officer Joseph Santos searched the car, concentrating on the area beneath the driver’s seat where he believed Price had hidden an object. According to his trial testimony, Officer Santos first looked under the seat from the rear, but was unable to see anything; however, when he reached under the seat from the front, he felt a gun on the floor. The gun, he later testified, was located behind a small lip that separated the area beneath the front of the seat, which was most easily accessible by the driver, from the area beneath the back of the seat, which was most easily accessible by a passenger in the rear. According to Officer Santos, he lifted the gun onto the top of the lip — to a position equally accessible by both the driver and the rear-seat passenger — so that it would be visi- ble from his vantage point. He then took a picture of the gun in its new position. Contrary to police department protocol regarding the proper treatment of evidence, Officer Santos did not take a picture of the gun in the position in which he claims to have originally found it.
Six months later, Price was indicted on three federal felony charges: being a felon in possession of a firearm, possession with intent to distribute marijuana, and carrying a firearm in relation to drug trafficking.2 We are here concerned only with the felon-in-possession charge. Much of the government’s case relating to that charge consisted of circumstantial evi- dence, which Price’s counsel vigorously attacked.3 However, the government introduced one central piece of direct evi- dence to which Price’s counsel had no effective response. 2 When Price was arrested, the officers found multiple plastic bags on his person that, altogether, contained approximately seven grams of mari- juana. Despite this exceedingly small amount of marijuana, Price was turned over to federal authorities who then decided to prosecute him for drug trafficking. 3 We discuss this evidence and Price’s response to it in detail during our discussion of prejudice. See infra Part II.B. UNITED STATES v. PRICE 6047 That evidence came from witness Antoinette Phillips who tes- tified that she saw the gun that was ultimately retrieved from the car sticking out of Price’s waistband minutes before he entered the vehicle and shortly before the police pulled him over. Phillips testified that she, her cousin, and the occupants of the car, including Price, had all met at her aunt’s house ear- lier in the evening and had planned to go to a movie. Accord- ing to Phillips, while at the house Price was sitting in her cousin’s room and, when he stood up, she saw the handle of a gun in his waistband. When shown at trial the gun that was retrieved from the vehicle, Phillips testified that the handle looked the same as the handle of the gun she saw in Price’s waistband.
Price’s attorney sought to impeach Phillips by challenging her memory and her perception. He first asked her if she had smoked marijuana before Price came over to her aunt’s house and later asked if she could have possibly confused a cell phone or pager for the handle of a gun. Although Phillips admitted to having smoked marijuana earlier in the evening, she responded to the latter line of questioning by simply reaf- firming that what she saw in Price’s waistband “looked like a gun to [her].” Price’s attorney made no effort to impeach Phillips by challenging her honesty or truthfulness.
The prosecutor relied heavily on Phillips’ testimony in his closing argument, stating to the jury, “[Y]ou have direct evi- dence of an eyewitness who saw this [gun] sticking out of the defendant’s waistband, and she took the witness stand, Antoi- nette Phillips.” He dismissed defense counsel’s attempts to question Phillips’ memory or perception by reminding the jury that Phillips unequivocally stated “No, it wasn’t a pager.” He then argued, “She knew what she saw . . . . [T]his item, ladies and gentleman, is something that people are going to remember seeing.” The prosecutor further relied on Phillips’ testimony to rehabilitate other aspects of his case-in-chief. Although he acknowledged that Officer Santos’ method of handling the evidence was “perhaps not perfect,” he told the 6048 UNITED STATES v. PRICE jury that Santos’ account was “corroborate[d]” by the fact that “Antoinette Phillips s[aw the defendant] with the gun 15 min- utes before” Santos pulled him over. He also stressed her veracity, telling the jurors “[Price] doesn’t have a reason for why Antoinette Phillips would lie.”
After hearing all of the evidence and arguments, the jury acquitted Price of the two charges related to drug trafficking, but convicted him of being a felon in possession of a firearm.4 He was sentenced to ninety-two months in prison.
At no point prior to or during Price’s trial did either he or his lawyer become aware of Phillips’ extensive history with the Portland Police Department. These facts came to light only after Phillips became a witness in a second case that grew out of her testimony in Price’s prosecution. Immediately after testifying against Price, Phillips claimed that she was threatened outside of the courthouse by Price’s brother, Saleem Muhammad. On the basis of her accusation, Muham- mad was prosecuted for witness intimidation by the same assistant United States Attorney who prosecuted Price. It was in the course of that second case, after a hotly contested fight over the need to reveal Phillips’ record, that the evidence of her arrests for theft, the report of her theft by deception, and her convictions for false-tag violations were revealed. In Muhammad’s case, in which Phillips was the government’s only percipient witness, the presiding judge, Judge Garr M. King, allowed Muhammad to introduce portions of Phillips’ record in order to impeach her. That impeachment was evi- dently successful: the jury failed to convict Muhammad. 4 Price was also convicted of simple possession of marijuana, a lesser included offense of the indictment’s second count, for which he received a concurrent sentence of three months in prison. The law permits the United States Attorney to prosecute someone federally for possessing small, personal-usage quantities of marijuana. Price does not raise any challenges on appeal in relation to his conviction for simple possession. UNITED STATES v. PRICE 6049 Upon learning of the impeachment evidence introduced in his brother’s trial, Price moved for a new trial in his own case on the ground that the government violated the requirements of Brady v. Maryland by failing to turn over evidence of Phil- lips’ prior arrests, conduct, and convictions. The district court held a hearing on Price’s motion. At that hearing, Price’s trial attorney testified that, had he been aware of Phillips’ criminal history, he would have “used that evidence to argue in [his] closing argument that she cannot be believed because she’s obviously got a problem with authority and . . . . that she [has] total disrespect for abiding by the law and being honest.”5 After Price’s trial counsel concluded his testimony, the prose- cutor presented his argument to the court. At the outset, he stated that the “matter [of Phillips’ criminal history] was inquired into by [his investigative] agent,” Detective Derek Anderson, who “determined that she had some arrests and some violation convictions.” The prosecutor next argued to the court that he had in fact provided all of that information to Price’s defense attorney prior to trial. Because Price’s trial counsel had just testified under oath that he never received the material in question, his new counsel objected to the prosecu- tor’s attempt to introduce contradictory evidence through oral argument. The district judge continued the hearing so as to allow a second prosecutor from the United States Attorney’s office to examine under oath the prosecutor who tried the case.
When the trial prosecutor returned as a witness a few days later, his story was very different. Now under oath, he aban- doned his initial position that he had provided Price’s counsel with the material underlying the Brady claim, stating instead, “today I can’t say with any precision what precisely I told Mr. Walker.” As to the question of what information regarding Phillips’ history was known to his investigative agent, the 5 Price’s counsel on appeal, who also represented him at the new-trial motion, is not the same attorney who represented him at trial and testified at the new trial hearing. 6050 UNITED STATES v. PRICE prosecutor also abandoned his prior statement that Detective Anderson had “determined that [Phillips] had some arrests and some violation convictions.” Instead, the prosecutor now testified that he did not “have any recollection of the printout that Detective Anderson was examining on [his] behalf” or of what information the detective actually knew regarding Phil- lips’ history with the Portland police. Further, the prosecutor testified, “I don’t have [a] specific recollection . . . [as to] whether I actually saw any[ of the materials] myself or whether th[ey] w[ere] communicated to me in my conversa- tions with my agent.” When asked on cross examination if Detective Anderson’s investigation could have produced evi- dence of Phillips’ “violation convictions” and investigations for theft, the prosecutor conceded that it “might have.” In response to further cross examination, the prosecutor testified that “the Portland Police Data System [(PPDS)], generally will reflect any police contacts that [an] individual has had” with the police, and that Detective Anderson, who was both a Portland Police Officer and a Special Agent with the Bureau of Alcohol, Tobacco, and Firearms, had complete access to the PPDS. Price’s counsel then asked whether Detective Anderson had in fact accessed the PPDS while performing his investigation on the prosecutor’s behalf. The prosecutor responded, “He may have in this case. . . . I can’t say for sure whether he had PPDS [information] in this case with Ms. Phillips or not.”
After hearing argument, the district court ruled on Price’s new trial motion from the bench. It first stated that, had the evidence at issue been made available to Price at trial, it would have allowed his counsel to use portions of it for pur- poses of impeaching Phillips. Nonetheless, the court ruled that Price had not established a Brady claim because he had failed to demonstrate that the prosecutor personally had evidence in his possession that would have revealed Phillips’ extensive history. As an alternative ground, the district court held that any failure to disclose the information was not prejudicial UNITED STATES v. PRICE 6051 under the standard laid out in Brady and its successor cases. Price appealed.
II.
“A district court’s denial of a new trial motion based on alleged Brady violations is reviewed de novo.”6 United States v. Antonakeas, 255 F.3d 714, 725 (9th Cir. 2001). There are three components of a Brady violation: “The evidence at issue must be favorable to the accused, either because it is exculpa- tory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-82 (1999). There is no dispute that the first component of a Brady violation exists in this case: Brady encompasses impeachment evidence, and evidence that would impeach a central prosecution witness is indisputably favor- able to the accused. See Giglio v. United States, 405 U.S. 150, 154 (1972); see also, e.g., United States v. Blanco, 392 F.3d 382, 387 (9th Cir. 2004) (“Brady/Giglio information includes ‘material . . . that bears on the credibility of a significant wit- ness in the case.’ ” (omission in original) (quoting United States v. Brumel-Alvarez, 991 F.2d 1452, 1461 (9th Cir. 1993)). Our decision therefore turns on the two remaining components of the Brady analysis. 6 While it is clear that the legal questions at issue in a Brady claim are reviewed de novo, this circuit has not yet “had the opportunity to consider what, if any, deference should be afforded to a district court’s factual find- ings . . . .” United States v. Jernigan, 492 F.3d 1050, 1062 (9th Cir. 2007) (en banc) (Bea, J. dissenting). Judge Bea provides a thoughtful analysis of the question and concludes, after reviewing the practices of other circuits, that an appellate court should accept a district court’s purely factual find- ings — such as findings with respect to a witness’s credibility or the exis- tence of a particular historical fact — unless such findings are clearly erroneous; however, the question whether a defendant suffered prejudice, also known in the Brady context as the question of “materiality,” is a legal matter that we review de novo. Id. In this case, because our analysis does not turn on the district court’s resolution of any purely factual questions, we have no occasion to resolve the issue Judge Bea raises in Jernigan. 6052 UNITED STATES v. PRICE A.
[1] As stated above, in order for a Brady violation to have occurred, the evidence at issue “must have been suppressed by the State.” Strickler, 527 U.S. at 281; see also Edwards v. Ayers, 542 F.3d 759, 768 (9th Cir. 2008) (“Suppression by the prosecution, whether willful or inadvertent, of evidence favor- able to the accused and material to either guilt or punishment violates the Constitution.”). The term “suppression” does not describe merely overt or purposeful acts on the part of the prosecutor; sins of omission are equally within Brady’s scope. See Benn v. Lambert, 283 F.3d 1040, 1053 (9th Cir. 2002) (“[T]he terms ‘suppression,’ ‘withholding,’ and ‘failure to disclose’ have the same meaning for Brady purposes.”). We perform this step of the inquiry “irrespective of the good faith or bad faith of the prosecution” in failing to disclose favorable evidence. Brady, 373 U.S. at 87. There is no allegation that the trial prosecutor in this case acted willfully, maliciously, or in anything but good faith — but an “innocent” failure to dis- close favorable evidence constitutes a Brady violation nonethe- less.7
[2] At the outset, we note that the district court’s ruling is predicated on a clear misconception of the governing law. In its ruling from the bench, the court held that no Brady viola- tion occurred in this case because the prosecutor did not per- sonally have in his possession the evidence of Phillips’ prior arrests, conduct, and convictions. In ruling on Price’s new trial motion, the district court stated that “the core of [a Brady violation8] is the Government has to either intentionally . . . 7 “[T]he term ‘Brady violation’ is sometimes used to refer to any breach of the broad obligation to disclose exculpatory evidence — that is, to any suppression of so-called ‘Brady material’ — although, strictly speaking, there is never a real ‘Brady violation’ unless the nondisclosure was [preju- dicial].” Strickler, 527 U.S. at 281 (footnote omitted). We use the phrase in the former, less technical sense here. We consider the issue of prejudice in the next section of our analysis. 8 The district court used the phrase “negligent nonprovision” to describe the alleged Brady violation, evoking our early Brady case law in which we UNITED STATES v. PRICE 6053 or through some kind of misunderstanding or negligence fail to disclose what it has. Here most, if not all of what is alleged to have not been disclosed wasn’t known [to t]he Government — the prosecutor at least didn’t have it. So we don’t have [a Brady violation].”9 The district court misunderstood the law. The Supreme Court has clearly held that “Brady suppression occurs when the government fails to turn over even evidence that is ‘known only to police investigators and not to the pros- ecutor.’ ” Youngblood v. West Virginia, 547 U.S. 867, 869-70 (2006) (per curiam) (quoting Kyles, 514 U.S. at 438). Accord- ingly, the district court’s reliance on the prosecutor’s lack of personal knowledge of the Brady material demonstrated a clearly erroneous understanding of the law as it has existed at least since Kyles v. Whitley, 514 U.S. 419, 438 (1995). See also Giglio, 405 U.S. at 154; Jackson v. Brown, 513 F.3d 1057, 1073 (9th Cir. 2008).
[3] As the prevailing Supreme Court precedents make clear, the district court should have considered whether the government failed to disclose the relevant information in the possession of any of its agents involved in Price’s prosecu- tion, not just what the prosecutor himself personally knew. The prosecutor’s initial statements at the new trial hearing suggested that his agents were aware of the exculpatory infor-
used the phrase “negligent nondisclosure.” See United States v. Butler, 567 F.2d 885 (9th Cir. 1978). The negligent nondisclosure doctrine, how- ever, was altered significantly when the Supreme Court held that the Brady analysis is the same “regardless of [a] request” or lack thereof by the defendant for favorable material. See Kyles v. Whitley, 514 U.S. 419, 433 (1995) (discussing United States v. Bagley, 473 U.S. 667, 682 (1985)). Accordingly, we have substituted the more current terminology when quoting the district court so as to avoid confusion. 9 After making this statement, the district court promised to “take . . . up in a moment” the question of Detective Anderson’s knowledge or posses- sion of the relevant material. However, it never did so. It appears that, in the course of issuing its oral ruling, the district court simply overlooked the import of Detective Anderson’s role in the analysis. 6054 UNITED STATES v. PRICE mation, as he stated that Phillips’ criminal history “was inquired into by” Detective Anderson and that Anderson “de- termined that she had some arrests and some violation convic- tions.” If this statement is true, then our inquiry with regard to the second Brady component is complete: “[E]xculpatory evidence cannot be kept out of the hands of the defense just because the prosecutor does not have it, where an investigat- ing agency does. That would undermine Brady by allowing the investigating agency to prevent production by keeping a report out of the prosecutor’s hands until the agency decided the prosecutor ought to have it . . . .” Blanco, 392 F.3d at 388 (quoting United States v. Zuno-Arce, 44 F.3d 1420, 1427 (9th Cir. 1995)). Moreover, as we have previously held:
actual awareness (or lack thereof) of exculpatory evidence in the government’s hands, . . . is not deter- minative of the prosecution’s disclosure obligations. Rather, the prosecution has a duty to learn of any exculpatory evidence known to others acting on the government’s behalf. Because the prosecution is in a unique position to obtain information known to other agents of the government, it may not be excused from disclosing what it does not know but could have learned.
Carriger v. Stewart, 132 F.3d 463, 479-80 (9th Cir. 1997) (en banc) (citations omitted) (emphases added). Our holding in Carriger drew directly from holdings of the Supreme Court, which state that “[i]n order to comply with Brady, . . . ‘the individual prosecutor has a duty to learn of any favorable evi- dence known to the others acting on the government’s behalf in th[e] case, including the police.’ ” Strickler, 527 U.S. at 281 (quoting Kyles, 514 U.S. at 437). Just as it “would under- mine Brady [to] . . . allow[ ] the prosecutor to tell the investi- gators not to give him certain materials unless he asked for them,” Blanco, 392 F.3d at 388 (quoting Zuno-Arce, 44 F.3d at 1427), it would equally undermine Brady for a prosecutor to direct his investigator to perform an investigation and then UNITED STATES v. PRICE 6055 fail to discover the investigation’s full results. Accordingly, if Detective Anderson did in fact know of Phillips’ “arrests” and “violation convictions” as the trial prosecutor initially stated, and if the prosecutor either failed to disclose the information or failed to discover that his agent knew of or possessed it, a Brady violation occurred.
The issue here is complicated, however, by the fact that the record is not conclusive with respect to what information was known to Detective Anderson or conveyed to the prosecutor. The prosecutor’s initial statement to the court, in which he stated that Detective Anderson actually “determined that [Phillips] had some arrests and some violation convictions,” is inconsistent with statements he gave under oath six days later. When the prosecutor returned as a witness after the dis- trict court continued the hearing on the new-trial motion, he no longer stated that Detective Anderson had known of the information underlying Price’s Brady claim. Instead, at the second hearing, the prosecutor stated that he “d[id]n’t have any recollection” of the information that Anderson possessed or conveyed to him. In response to this change in position by the prosecutor, Price’s attorney told the court that he “would like to continue th[e] hearing [a second time in order to] sub- poena and bring in Detective Anderson.” Unfortunately, no such continuance occurred because the district court stated, erroneously, that Anderson’s testimony was irrelevant to its decision.10 Thus, while the prosecutor testified that Detective 10 By contrast, when the court believed that the record would be insuffi- cient to support the denial of the new-trial motion without the prosecutor’s testimony, the court insisted on a continuance and granted one sua sponte. Although we need not pass upon the propriety of insisting on the first con- tinuance while rejecting the second, we note that “[a] district court’s . . . denial of a continuance is reviewed for abuse of discretion even where . . . no motion for continuance [i]s made,” United States v. Orlando, 553 F.3d 1235, 1237 (9th Cir. 2009), and that “[a] trial court clearly abuses its dis- cretion . . . if denial of [a] continuance was arbitrary or unreasonable,” United States v. Torres-Rodriguez, 930 F.2d 1375, 1383 (9th Cir. 1991), or predicated on a misunderstanding of the law. The latter is clearly the case here. 6056 UNITED STATES v. PRICE Anderson very well “may have” had all of the information regarding Phillips’ history in his possession prior to trial, there is no conclusive resolution of this factual question in the record.
The suppression prong of Brady may be met, however, even though a “record is not conclusive as to whether the individual prosecutor[ or investigator] . . . ever actually pos- sessed” the Brady material. Carriger, 132 F.3d 463 at 479. The proponent of a Brady claim — i.e., the defendant — bears the initial burden of producing some evidence to sup- port an inference that the government possessed or knew about material favorable to the defense and failed to disclose it.11 Cf. United States v. Lopez, 534 F.3d 1027, 1034 (9th Cir. 2008); United States v. Brunshtein, 344 F.3d 91, 101 (2d Cir. 2003). Once the defendant produces such evidence, the bur- den shifts to the government to demonstrate that the prosecu- tor satisfied his duty to disclose all favorable evidence known to him or that he could have learned from “others acting on the government’s behalf.” Kyles, 514 U.S. at 437.
[4] In this case, Price has met his initial burden of produc- ing some evidence supporting the inference that the govern- ment failed to disclose favorable material. The record contains sworn testimony from the prosecutor himself that Detective Anderson “may have” had in his possession all of the Brady material underlying Price’s claim, as well as that Anderson was asked to investigate Phillips’ criminal history 11 If the record is conclusive that all relevant agents of the government did not know about the Brady material, then, of course, no Brady violation has occurred as the “government has no obligation to produce information which it does not possess or of which it is unaware.” Sanchez v. United States, 50 F.3d 1448, 1453 (9th Cir. 1995). This is not the case if the pros- ecutor suspects that a witness has committed perjury. “When a prosecutor suspects perjury, the prosecutor must at least investigate” further, consis- tent with his “duty to correct what he knows [or suspects] to be false and elicit the truth.” Morris v. Ylst, 447 F.3d 735, 744 (9th Cir. 2006) (citing Napue v. Illinois, 360 U.S. 264, 270 (1959)). UNITED STATES v. PRICE 6057 and had access to a police database that contained that infor- mation. In addition, the prosecutor at another point in the hearing represented to the court that Anderson had in fact investigated Phillips’ criminal history and had determined that she had “arrests” and “convictions,” which were not disclosed to the defense. The prosecutor’s performance in this regard is troubling, and may, upon remand, warrant further inquiry by the district judge. It is clear, however, that, whatever the truth, the government has failed to demonstrate that the prosecutor satisfied his constitutional duty to learn the results of Ander- son’s investigation. Certainly, where the prosecutor states either that he cannot remember or does not know what infor- mation his agents relayed to him, the government’s burden is not met. Allowing such convenient and conclusory testimony to defeat a Brady claim would render a defendant’s right to obtain Brady material meaningless.
[5] In this case, despite the fact that the prosecutor instructed Detective Anderson “to run a criminal history check on Ms. Phillips to” find information “that could be used for impeachment,” and despite the fact that “the Portland Police Data System generally will reflect any police contacts that [an] individual has had” and was “available to Detective Anderson,” the prosecutor stated under oath, “I can’t say for sure whether [Anderson] had PPDS in this case with Ms. Phillips or not,” “[h]e may have.” This testimony demon- strates that, at the least, the prosecutor failed in his “duty to learn” the results of the investigation he directed his lead investigative agent to perform. Kyles, 514 U.S. at 437. Because a prosecutor must fulfill this duty “[i]n order to com- ply with Brady,” Strickler, 527 U.S. at 281, the prosecutor in this case “may not be excused from disclosing what [he] d[id] not know but could have learned,” Carriger, 132 F.3d at 480. Accordingly, Price has satisfied the second component of the Brady analysis. 6058 UNITED STATES v. PRICE B.
[6] Having concluded that the first two components of Price’s Brady claim have been met, we turn now to the final issue: whether the failure to disclose the Brady material was prejudicial.12 “The touchstone of [the prejudice analysis] is whether admission of the suppressed evidence would have created a ‘reasonable probability of a different result.’ ” United States v. Jernigan, 492 F.3d 1050, 1053 (9th Cir. 2007) (en banc) (quoting Kyles, 514 U.S. at 434). As the Supreme Court has stressed, it has “rejected a standard that would require the defendant to demonstrate that the evidence if disclosed probably would have resulted in acquittal.” United States v. Bagley, 473 U.S. 667, 680 (1985) (citing United States v. Agurs, 427 U.S. 97, 111 (1976)). Rather, the Court has “defined a ‘reasonable probability’ as ‘a probability sufficient to undermine confidence in the outcome’ ” of the trial. Id. at 682 (citing Strickland v. Washington, 466 U.S. 668, 694 (1984)).
The government argues that only information that would have been admissible at trial may be considered in our preju- dice analysis. This issue was discussed in the Supreme Court’s decision in Wood v. Bartholomew, 516 U.S. 1, 6 (1995) (per curiam), in which the Court held that the failure to disclose the results of a polygraph test was not prejudicial 12 The prejudice analysis is often phrased in terms of “materiality.” See, e.g., United States v. Jernigan, 492 F.3d 1050, 1053-54 (9th Cir. 2007) (en banc). However, “[t]he terms ‘material’ and ‘prejudicial’ are used inter- changeably in Brady cases. Evidence is not ‘material’ unless it is ‘prejudi- cial,’ and not ‘prejudicial’ unless it is ‘material.’ Thus, for Brady purposes, the two terms have come to have the same meaning.” Benn v. Lambert, 283 F.3d 1040, 1053 n.9 (9th Cir. 2002). Somewhat confusingly, the suppressed evidence underlying a Brady claim is itself often referred to as “so-called ‘Brady material.’ ” Strickler, 527 U.S. at 281. We there- fore use the term “prejudice” here so as to avoid the linguistic awkward- ness that inheres in determining whether “Brady material” is or is not “material.” UNITED STATES v. PRICE 6059 because the results were not admissible in evidence. As we have previously stated in Paradis v. Arave, however, “[i]n Bartholomew, the Court did not categorically reject the sug- gestion that inadmissible evidence can be material under Brady, if it could have led to the discovery of admissible evi- dence.” 240 F.3d 1169, 1178 (9th Cir. 2001). While there appears to be some disagreement as to Bartholomew’s scope, see id. at 1178-79 (citing cases), this case, like Paradis, “does not require resolution of that possible conflict.” Id. at 1179. Regardless of whether inadmissible evidence is material under Brady if its disclosure could have led the defendant to discover favorable admissible evidence, “under Ninth Circuit law ‘evidence is material if it might have been used to impeach a government witness.’ ” Id. (quoting Carriger, 132 F.3d at 481).
Here, contrary to the government’s assertion, the nondis- closed evidence of Phillips’ criminal history was admissible for purposes of impeaching her testimony. The record demon- strates that the following portions of Phillips’ criminal history were not disclosed to Price: (1) three arrests for theft; (2) a report of “theft by deception,” Or. Rev. Stat. § 164.085 (2007); and (3) three convictions for false-tag violations, also known as “[i]llegal alteration or display of plates,” Or. Rev. Stat. § 803.550 (2007). The government does not challenge the conclusion reached by the district courts in this case and in the related prosecution of Price’s brother, Saleem Muham- mad, that Phillips’ false-tag convictions were admissible for purposes of impeachment. Cf. Fed. R. Evid. 609(a)(2). As for theft and theft by deception, the government argues that because convictions for these acts would have been inadmissi- ble under Rule 609 such acts therefore cannot be considered in our analysis. Phillips, however, was not convicted of these offenses, and our inquiry is therefore governed by Rule 608(b), not Rule 609. See United States v. Osazuwa, ___ F.3d ___, ___ No. 08-50244, slip op. at 5377 (9th Cir. 2009) (“Rule 608(b) permits impeachment . . . by specific acts that have not resulted in a criminal conviction. Evidence relating 6060 UNITED STATES v. PRICE to impeachment by way of criminal conviction is treated exclusively under Rule 609.”). Under Rule 608(b), “specific instances” of a witness’s prior conduct may be admissible “in the discretion of the court” for purposes of impeachment in order to show a witness’s “character for truthfulness or untruth- fulness.”13 Where the prosecution possesses or knows of material favorable to the defendant that would be admissible subject to the court’s discretion Brady requires that such material be turned over to the defense. See United States v. Van Brandy, 726 F.2d 548, 552 (9th Cir. 1984) (“[W]here doubt exists as to the usefulness of evidence, [the prosecutor] should resolve such doubts in favor of full disclosure . . . ”). Here, the district court stated that it would have allowed Price’s counsel to use at least some of the nondisclosed mate- rial to impeach Phillips. Because all of the nondisclosed mate- rial underlying Price’s Brady claim was potentially admissible for purposes of impeachment, we consider all of that material in determining whether the failure to disclose Phillips’ crimi- nal conduct was prejudicial.14 13 We do not suggest that evidence of a witness’s prior thefts or other dishonest conduct will always be admissible under Rule 608(b) or even that it should ordinarily be admissible against a defendant in a criminal trial. Moreover, the district court’s decision to admit such evidence must not constitute an abuse of discretion. E.g., United States v. Scott, 74 F.3d 175, 177 (9th Cir. 1996). Specifically, where a defendant takes the stand in his own defense, courts must be especially careful to weigh the value of any evidence the prosecutor might adduce under Rule 608(b) against the strong possibility that evidence of prior crimes will improperly preju- dice the jury by causing it to believe that, if the defendant committed other crimes, he is therefore more likely to be guilty of the crime for which he is on trial. See Fed. R. Evid. 403, 404(b). In such instances, courts must bear in mind that “Fed. R. Evid. 403 modifies . . . rule [608(b)] by provid- ing that otherwise admissible and relevant evidence may be excluded if the court determines that its probative value is substantially outweighed by the danger of unfair prejudice.” United States v. Geston, 299 F.3d 1130, 1137 n.2 (9th Cir. 2002). 14 The prosecutor apparently also believed that he was only required to turn over evidence of criminal convictions that he or his agent uncovered in Phillips’ record. This is not so. “[I]t is the state’s obligation to turn over UNITED STATES v. PRICE 6061 [7] In determining whether the failure to disclose Brady material undermines our confidence in the outcome of the trial, we must weigh the withheld evidence “in the context of the entire record.” Jernigan, 492 F.3d at 1053 (quoting Benn, 283 F.3d at 1054). Here the prosecution presented only three items of evidence in support of the felon-in-possession charge: testimony by the arresting officers that Price bent over as the car came to a stop, testimony regarding the location of the gun recovered from the vehicle, and Phillips’ testimony that she saw the gun in Price’s waistband approximately fif- teen minutes before his arrest. Price’s counsel’s questioning significantly undermined the first two aspects of the govern-
all information bearing on [a government] witness’s credibility. This must include the witness’s criminal record, including prison records, and any information therein which bears on credibility.” Carriger, 132 F.3d at 480 (emphases added) (citation omitted). For the benefit of trial prosecutors who must regularly decide what material to turn over, we note favorably the thoughtful analysis set forth by two district courts in this circuit: [T]he ‘materiality’ standard usually associated with Brady . . . should not be applied to pretrial discovery of exculpatory materi- als. . . . [J]ust because a prosecutor’s failure to disclose evidence does not violate a defendant’s due process rights does not mean that the failure to disclose is proper. . . . [T]he absence of preju- dice to the defendant does not condone the prosecutor’s suppres- sion of exculpatory evidence [ex ante]. . . . [Rather,] the proper test for pretrial disclosure of exculpatory evidence should be an evaluation of whether the evidence is favorable to the defense, i.e., whether it is evidence that helps bolster the defense case or impeach the prosecutor’s witnesses. . . . [I]f doubt exists, it should be resolved in favor of the defendant and full disclosure made. . . . [T]he government [should therefore] disclose all evi- dence relating to guilt or punishment which might reasonably be considered favorable to the defendant’s case, even if the evidence is not admissible so long as it is reasonably likely to lead to admissible evidence. United States v. Acosta, 357 F. Supp. 2d 1228, 1239-40 (D. Nev. 2004) (emphasis added) (citing United States v. Sudikoff, 36 F. Supp. 2d 1196 (C.D. Cal. 1999)). 6062 UNITED STATES v. PRICE ment’s case. On cross examination, counsel established con- flicts in the arresting officers’ testimony: two officers said that the defendant bent over only once, one officer testified that he bent over twice, and a fourth government witness — Rebecca Jones, who was in the car with Price — testified that he did not bend over at all. Given these inconsistencies, Price argued to the jury that the “bending over” story was a post hoc fabrication that the officers invented after they found the gun. As to the gun’s location in the car, Price’s attorney suc- ceeded in raising serious questions regarding the probative value of the testimony of Officer Santos as well as of the pho- tograph taken by him. Santos admitted that he moved the gun before photographing it and that doing so constituted a viola- tion of police protocol. Another government witness agreed, testifying that Santos’ admissions established that he handled the evidence improperly. Moreover, Santos acknowledged on cross examination that he did not mention to anyone that he had moved the gun until two weeks before trial, during a meeting with the prosecuting attorney.
[8] In contrast to the circumstantial evidence offered by the arresting officers, including Officer Santos, as to which sub- stantial doubt was raised as a result of defense counsel’s ques- tioning, Phillips’ testimony provided direct evidence of Price’s guilt and defense counsel was unable to seriously challenge it on cross examination. Phillips was indisputably “the prosecution’s star witness.” Carriger, 132 F.3d at 480. As we have previously held, “[i]mpeachment evidence is especially likely to be material when it impugns the testimony of a witness who is critical to the prosecution’s case.” Silva v. Brown, 416 F.3d 980, 987 (9th Cir. 2005). Moreover, while Price’s counsel thoroughly challenged other aspects of the government’s case, he was in no position to attack Phillips’ credibility. Instead, he simply offered a brief argument that her memory was faulty and that she mistook a cell phone or a pager for a gun handle.
[9] The jury had little reason to doubt Phillips’ memory and absolutely no reason to question her truthfulness. The prose- UNITED STATES v. PRICE 6063 cutor exploited this in his closing argument, arguing that even though Officer Santos’ method of handling the evidence was “perhaps not perfect,” the jury could disregard infirmities in his account because his testimony was “corroborate[d]” by the fact that “Antoinette Phillips s[aw the defendant] with the gun 15 minutes before” Santos pulled Price over. The prosecutor then further emphasized Phillips’ testimony by arguing to the jury that a central weakness in Price’s defense was that he “doesn’t have a reason for why Antoinette Phillips would lie.” Of course, Price could not give the jury a reason to doubt Phillips’ truthfulness because the government failed to give him the evidence detailing her history of dishonest and fraud- ulent conduct. Cf. Benn, 283 F.3d at 1056 (holding that Brady material is especially likely to be prejudicial if it “would have provided the defense with a new and different ground of impeachment”); Silva, 416 F.3d at 989 (same).
[10] Had Price been able to discredit Phillips’ testimony, there is a reasonable probability that he could have persuaded the jury that there was a reasonable doubt as to whether the gun found under the driver’s seat belonged to him. Indeed, this was his defense at trial.15 Phillips’ testimony, however, firmly established Price’s guilt and rendered his ability to undermine other aspects of the government’s case of little consequence. Had the evidence of Phillips’ past conduct been disclosed, “there is a reasonable probability that the withheld evidence would have altered at least one juror’s assessment” regarding Price’s possession of the gun. Cone v. Bell, ___ S. Ct. ___, ___ (slip. op. at 2) (2009); see also Duncan v. Ornoski, 528 F.3d 1222, 1245 (9th Cir. 2008). Accordingly, because the evidence in question “would have affected the trial in such a way as to undermine our confidence in the jury’s verdict, we conclude that a Brady violation occurred.” Bailey v. Rae, 339 F.3d 1107, 1109 (9th Cir. 2003). 15 Lewis, the driver of the car, planned to testify in Price’s defense that the gun was hers, but moments before taking the stand she decided instead, on advice of counsel, that she would exercise her Fifth Amend- ment right against self-incrimination. 6064 UNITED STATES v. PRICE III.
For the reasons stated above, we hold that Price’s due pro- cess rights were violated when the government failed to dis- close favorable evidence in a manner that was prejudicial to the outcome of the case. Accordingly, the denial of Price’s motion for a new trial is REVERSED and the case is REMANDED for further proceedings consistent with this opinion.