UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

NO. 96-3113

BRIEF FOR APPELLANT xxxxxxx L. xxxxxxx

UNITED STATES OF AMERICA, Plaintiff-Appellee,

xxxxxxx L. xxxxxxx, Defendant-Appellant.

JURISDICTION

The district court had jurisdiction over this case pursuant to 18 U.S.C. § 3231. The notice of appeal having been filed within the ten-day period of Fed. R. App. P. 4(b), this Court has jurisdiction pursuant to 28 U.S.C. § 1291.

ISSUE PRESENTED FOR REVIEW

Whether the district court erred in denying Defendant's repeated requests to the government for exculpatory and impeachment materials pursuant to Brady v. Maryland, 373 U.S. 83 (1963), related to a witness originally called as a defense witness to testify that he had planted guns in Mr. xxxxxxx's room and then, on the witness stand, after having just conferred with the government, recanted and told the jury that the guns were Mr. xxxxxxx's.

STATUTES AND REGULATIONS

Pertinent statutes and regulations are contained in the addendum to this brief.

STATEMENT OF THE CASE

A. Nature of the Case, Course of Proceedings, and Disposition in

the Court Below

On September 19, 1996, police executed a search warrant at the house where Defendant xxxxxxx L. xxxxxxx rented a basement room. They found, among other items, two guns and several rounds of ammunition hidden in the basement. (App. 13, 17). Mr. xxxxxxx was arrested, taken to the police station and interrogated.

A grand jury returned a two-count indictment against Mr. xxxxxxx for possession of firearms (count 1) and ammunition (count 2), having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). (App. 18-19).

Defense counsel submitted several pretrial motions, including a motion for disclosure of the confidential informant who provided information to support the search warrant and exculpatory and impeachment information related to the informant. (App. 20-27). The district court denied the defense motions from the bench at a hearing on December 18, 1996. (12/18/96 Tr. 67-83).

The jury trial spanned four days. During the trial, defense counsel called the informant, xxxxxx xxxxxx, as a witness (his identity having been discovered independently by defense counsel). When defense counsel suspected that Mr. xxxxxx might turn on the defense and testify favorable for the government, she again requested Brady material regarding this witness. (1/15/97 morning session Tr. 68; 11/15/97 afternoon session Tr. 10-11, 39-43). The court initially postponed a decision on counsel's request and ultimately denied it because Mr. xxxxxx had been called as a defense witness. (1/15/97 morning session Tr. 68-69; 1/15/97 Tr. afternoon session 11, 39-43). Mr. xxxxxxx was convicted by the jury. (1/16/97 Tr. 80-82).

Following the conviction, Mr. xxxxxxx's counsel sent a written request to the government dated January 21, 1997, requesting Rule 16 and Brady material in connection with Mr. xxxxxx. (App. 30). The government refused because Mr. xxxxxx had been called as a defense witness and not a government witness. (App. 31). Defense counsel then filed a motion for a new trial based on the prosecutor's failure to correct perjured testimony when Mr. xxxxxx testified that he had never "snitched" for the government. (App. 32-36). The district court denied the motion by written memorandum opinion. (App. 37-41).

The court sentenced Mr. xxxxxxx on November 19, 1997, to 92 months of incarceration and 3 years of supervised released on each count, the sentences to run concurrently. (App. 43-44).

B. Statement of Facts

In the early morning of September 19, 1996, xxxxxxx xxxxxxx, his girlfriend and their two children were asleep in the basement room Mr. xxxxxxx rented in his grandmother's house. Police stormed the house to execute a search warrant for firearms. (12/18/96 Tr. 9-12, 27-29, 42-43; 1/15/97 morning session Tr. 9-10, 28-29; App. 10). The police entered the basement room, sent the girlfriend and children upstairs, handcuffed Mr. xxxxxxx and began searching the room for guns. (1/15/97 morning session Tr. 17-21). Their search turned up a handgun under one side of the mattress and a box with another gun and some ammunition under the stairs. (12/18/96 Tr. 44, 51; App. 13, 17). Mr. xxxxxxx was arrested for possession of the guns and ammunition and taken to the police station for questioning. (Id. at 32-33).

During the questioning, Mr. xxxxxxx told police that the guns belonged to a friend of his, xxxxxx xxxxxx. (12/18/96 Tr. 50-52). He also signed a statement written out by one of the interviewing police officers indicating that the guns were not his but belonged to someone named "Boo" and to xxxxxx xxxxxx. (Id. at 38-41; App. 14-15). The day before the police raid, Mr. xxxxxxx had seen xxxxxx xxxxxx, a childhood friend, on the street. Mr. xxxxxx showed him a gun like one of those found in Mr. xxxxxxx's room. (App. 15). The two of them drove in Mr. xxxxxxx's car to the hospital to pick up Mr. xxxxxxx's girlfriend and her new baby, born the day before. Mr. xxxxxx then accompanied them back to Mr. xxxxxxx's house, where he spent some time in the basement with Mr. xxxxxxx and by himself. (1/15/97 morning session Tr. 29-30, 36-38; 1/15/97 afternoon session Tr. 14-15).

On January 6, 1997, prior to trial, defense counsel received a call from xxxxxx xxxxxx, whom she suspected was the confidential informant for the search warrant. Mr. xxxxxx told counsel that he had some helpful information and wanted to meet with her. That day, counsel and her investigator met Mr. xxxxxx in a McDonalds parking lot in Southeast D.C. He asked if they could help him with a D.C. Superior Court case because he was afraid of returning to Lorton. When counsel told him they could not help in that case, he proceeded to tell them his "very important information" about the xxxxxxx xxxxxxx case.

He said that he and xxxxxxx have been friends their whole life, he was already in trouble and knew he had to face what was coming to him. He said he knew he was "going to do time, but I can't go back to Lorton because I snitched on so many people." He said he wanted to clear his conscience, that he was the informant in the case. He said he had a big gun and drug case in Superior Court and he had to work it off. He said he was working with [officers] GG Neil, Twoheart [sic], and Broadbent.

. . . [A]bout xxxxxxx's case specifically[,] he said the guns were his. He said that the day before the search warrant he went with xxxxxxx to pick up his girl at the hospital to bring the new baby home. When they got to the house he went down to the basement alone, he said he was "looking through xxxxxxx's tapes, he plays the congos". While he was down there he hid the guns, one under the mattress and one in a box under the stairs. He said he did not tell xxxxxxx he was hiding the guns there. . . .

He said that he knew he was going to do time anyway, that xxxxxxx's been his friend for years and that he just had to do what was right.

(App. 28-29). Mr. xxxxxx agreed to testify in court for Mr. xxxxxxx. (App. 29).

At trial, Mr. xxxxxxx's counsel pursued this defense. (See, e.g., 1/14/97 Tr. 11-12; 1/16/97 Tr. 46-55). Because Mr. xxxxxx's prior statement was crucial to the defense, counsel had him brought to the Federal Courthouse from the D.C. Jail where he was in custody. After consulting with Mr. xxxxxx's attorney for his D.C. Superior Court case, counsel learned that Mr. xxxxxx intended to assert his Fifth Amendment privilege and not testify to planting the guns. Counsel, therefore, planned to put on her investigator as a witness to testify to what Mr. xxxxxx had told her on January 6. (1/15/97 morning session Tr. 3-5).

When the government questioned whether Mr. xxxxxx had a Fifth Amendment privilege in this case if he merely saw guns in Mr. xxxxxxx's room, (1/15/97 Sealed Tr. 8-13), the court appointed another attorney to advise Mr. xxxxxx that day. (1/15/97 morning session 49). After speaking with Mr. xxxxxx, the new attorney advised the court that Mr. xxxxxx indeed had a Fifth Amendment privilege, but asked to speak to the prosecutor. (Id. at 65-66). The attorney conferred with the prosecutor and then with defense counsel. The judge then permitted defense counsel to question Mr. xxxxxx without the jury present to determine if he was going to exercise his privilege not to testify. Mr. xxxxxx unequivocally invoked his privilege:

[By Defense Counsel]

Q. And you have advised both Mr. Jorgenson [D.C. Superior Court attorney] and Mr. George [new attorney] that you do not wish to testify; is that right?

A. Yes, ma'am.

Q. And that is because you have asserted your Fifth Amendment privilege against self-incrimination; is that right?

A.Yes, ma'am.

* * *

THE COURT: And you don't wish to testify because you fear that you might incriminate yourself if you did testify in this case?

THE WITNESS: Yes, sir.

THE COURT: You claim your privilege not to testify based on your Fifth Amendment rights?

THE WITNESS: Yes, sir.

THE COURT: You have been so advised by both your lawyers?

THE WITNESS Yes, sir.

(1/15/97 morning session Tr. 67). The prosecutor then asked to speak to Mr. xxxxxx's attorney over the lunch recess to see if they could reach an agreement that would allow him to testify. Anticipating that Mr. xxxxxx could strike a deal with the government contrary to Mr. xxxxxxx's interests, defense counsel requested Brady material on Mr. xxxxxx's agreements with the government and on his recent sealed cases in D.C. Superior Court. (Id. at 67-68). The district court labeled the request "premature" and delayed a decision until it was determined whether Mr. xxxxxx would testify. (Id. at 68-69).

After the lunch recess, Mr. xxxxxx's attorney told the court that "[t]hese arrangements practically have been made with respect to my client testifying, but he requested to speak to the prosecutor" again. (1/15/97 afternoon session Tr. 3). The court granted time for this second conference. Mr. xxxxxx's attorney returned and informed the court that Mr. xxxxxx would be testifying:

MR. GEORGE: Good afternoon again, Your Honor. David George on behalf of Mr. xxxxxx. Your Honor, over the break I had more discussion with Mr. xxxxxx, and we have arrived at the conclusion that there is no Fifth Amendment privilege, and he will be testifying, Your Honor.

THE COURT: He will be testifying?

MR. GEORGE: Yes, Your Honor.

THE COURT: Yes. And you have advised him of that fact, and he's willing to testify?

MR. GEORGE: Yes, Your Honor.

(Id. at 8-9). Because the court knew the incriminating nature of the information Mr. xxxxxx had told defense counsel, the court further questioned Mr. xxxxxx about his decision to testify. Mr. xxxxxx assured the court that he wished to do so. (Id. at 9-10).

The government informed the court and Mr. xxxxxxx that in exchange for Mr. xxxxxx's testimony, it "indicated to Mr. xxxxxx that it will make arrangements sufficient to accommodate those concerns that he [xxxxxx] has for his safety" while in prison. (1/15/97 afternoon session Tr. 10). Defense counsel asked for more specific information, suspecting that Mr. xxxxxx had become a hostile witness. It again asked for Brady material on Mr. xxxxxx's prior agreements with the government and the sealed D.C. Superior Court cases. (Id. at 10-11). Again, the court delayed deciding:

THE COURT: Well, we'll have to wait and see what he says before we make that determination.

* * *

THE COURT: I'm not prepared to do that at this time. This is the way we're going to handle it: You get Jencks material after the witness has testified. I'm not going to take up time now to give it to you if, indeed, there is any, and so let's proceed. Put the witness on, and bring the jury in.

(Id. at 11).

On direct examination, Mr. xxxxxx admitted that he met with the defense attorney and her investigator and told them that he was the confidential informant on the search warrant and that he, in fact, planted the guns in Mr. xxxxxxx's basement room. (1/15/97 afternoon session Tr. 15-21). Mr. xxxxxx, however, denied working with the police officers in this case and denied "working off" a drug and gun conviction in D.C. Superior Court. (Id. at 22, 27). On cross examination by the government, Mr. xxxxxx stated for the first time that he had lied to defense counsel and her investigator. He said that he lied because he had been threatened "by some dudes, like they pulled upon me and said, 'I heard you got Shortie [xxxxxxx xxxxxxx] in a jam. If you don't take your weight, then we gonna put them spherical hot balls in you.'" (Id. at 28; see also id. 28-34). Mr. xxxxxx then testified that the guns belonged to xxxxxxx xxxxxxx and that Mr. xxxxxxx had shown him the two guns when he visited on September 18. (Id. at 37-38).

After this testimony, defense counsel renewed her request for Brady information:

MS. SEIDMAN: Your Honor, just, I know you reserved ruling on the other issue. I think at this point he has now become a hostile witness. So I would ask for permission, on redirect, to cross him as a hostile witness.

THE COURT: All right, I'll permit that.

MS. SEIDMAN: And also for information regarding his sealed cases, and any --

THE COURT: Sealed cases? I don't know how we can get that information on sealed cases. What cases?

MS. SEIDMAN: He has two cases in Superior Court.

THE COURT: In Superior Court?

MS. SEIDMAN: He was just sentenced on the, yes, before Judge Maize.

THE COURT: And you want the information from the sealed cases?

MS. SEIDMAN: No. I want, yes, what he was convicted of, what he was sentenced to, the agreements he's made with the government regarding those cases.

THE COURT: That has nothing to do with this case.

MS. SEIDMAN: It goes to his credibility on this case.

THE COURT: Well, I don't see how we can possibly get sealed, records of sealed cases in Superior Court in the middle of this trial, when we come to the end of this trial.

MS. SEIDMAN: How about just the plea agreements?

THE COURT: What?

MS. SEIDMAN: On his cooperation agreement with the government, his plea agreement.

THE COURT: Well, you can ask him about that. Ask him if he didn't have a plea agreement.

MS. SEIDMAN: I think they should be entitled to turn it over.

MS. SCHMIDT: Your Honor, this man is a defense witness. We didn't ask for or

[prosecutor] invite any of this here. In fact, the government would just as soon not to have gotten into any of this. I think it's relevant to show bias or credibility issues, what happened, perhaps with respect to this particular case, but I don't know.

THE COURT: Yes, he is your witness.

MS. SEIDMAN: Your Honor, when he was called as a witness, we had a good faith basis for relying on what he told us. He came in this morning and asserted his Fifth Amendment privilege. It was only after speaking to the prosecutor that he waived that privilege. Clearly, there is credibility bias information. There are agreements he has with them. There are other cases.

If the jury has to make a determination as to whether he's telling the truth or not, they're entitled to know what is pending, and if he's going to say he's being threatened and my client placed those guns, then his credibility on the stand and his bias should be before the jury, and any agreement he has reached with the government, other cases he's informed on, I think they're entitled to know all that.

THE COURT: I'm not sure of that.

MS. SEIDMAN: And it was the government that push[ed] for him to waive this immunity. We were happy to have him assert that privilege.

* * *

THE COURT: Well, I'm not going to accede to your request to get those Superior Court records at this point.

MS. SEIDMAN: What about the government's --

THE COURT: We've almost come to the end of the trial. However, there's nothing to prevent you from asking him: "isn't it a fact that in Superior Court you were involved in these cases, and isn't it a fact that you had an agreement with the government," and you may bring it out that way. I'm not going to at this late juncture make any effort to get those sealed records from the Superior Court. They don't have anything to do with this case anyway. This is a case where he's charged, your defendant is charged with the possession of guns after having been convicted of a felony.

MS. SEIDMAN: Your Honor, then I would just ask the other -- certainly, the government has in its possession their own 5K1 agreement with him, plea agreement with him. That doesn't require anything from Superior Court, and they have that all available. They can turn that over.

THE COURT: Do you have some kind of a cooperation agreement with this person in this court, in connection with this case?

MS. SCHMIDT: Not that I'm aware of. Not in connection with this case. Clearly, I think there may be some records that the police might have. I certainly don't have anything right now. I think the Court is correct in Ms. Seidman getting to inquire into these things, but I don't think the government has an obligation to produce them to the defense in connection with a defense witness.

THE COURT: No, I don't think so either.

MS. SCHMIDT: I think the inquiry is legitimate in terms of bias and credibility, but I would oppose the government being asked to produce records.

THE COURT: Certainly if it's in regard to a defense witness. Now, all right, you can question him about these other cases, but I'm not going to take any step to compel the government to produce sealed records in Superior Court cases which had nothing to do with this prosecution. All right, that's my ruling.

(1/15/97 afternoon session Tr. 39-43). On redirect examination, Mr. xxxxxx denied being a "snitch," denied that he had cooperated with the government in other cases, denied having any pending cases and denied having an agreement with the government that worked to reduce the sentence in his D.C. Superior Court case[s]. (Id. at 50-53, 58-59). Defense counsel could not impeach him on this testimony.

The remaining defense witnesses were a fingerprint expert who testified about the absence of Mr. xxxxxxx's fingerprints on the guns (1/15/97 morning session Tr. 53-65), the investigator who was present when Mr. xxxxxx spoke to the defense (1/16/97 Tr. 5-20), and Mr. xxxxxxx's mother who testified to seeing xxxxxx xxxxxx at the house the day before the search (Id. at 21-23).

SUMMARY OF ARGUMENT

The prosecutor's obligation pursuant to Brady v. Maryland to disclose exculpatory and impeachment evidence extends to all such evidence that is material to the defendant's guilt or punishment. The obligation clearly includes disclosure of the evidence requested by defense counsel in this case necessary to impeach xxxxxx xxxxxx after he turned into a hostile witness and to bolster the defense theory that he planted the guns in Mr. xxxxxxx's room. The fact that Mr. xxxxxx was originally called as a defense witness does not diminish or relieve the government's obligation. Brady and its progeny require that all material evidence favorable to the defense be

disclosed, making no distinction between evidence used to impeach government or defense witnesses.

ARGUMENT

THE DISTRICT COURT ERRED IN DENYING DEFENDANT'S REQUESTS TO THE GOVERNMENT FOR EXCULPATORY AND IMPEACHMENT MATERIALS PURSUANT TO BRADY V. MARYLAND, WHICH WERE NECESSARY TO IMPEACH A KEY WITNESS WHO TESTIFIED AGAINST DEFENDANT'S INTERESTS

A. Standard of Review

Where the existence and nature of exculpatory or impeachment material has been determined, the remaining issue of materiality and the prosecution's obligation to disclose the material pursuant to Brady v. Maryland, 373 U.S. 83 (1963), is one of law, reviewed de novo. United States v. Lloyd, 71 F.3d 408, 411 (D.C. Cir. 1995) ("Lloyd II"); see United States v. Cuffie, 80 F.3d 514, 517 (D.C. Cir. 1996). Where the district court record does not establish whether such material exists, however, this Court has remanded the case to the district court for factual determinations on the existence and nature of such material and a further determination by the district court on the necessity of a new trial. See United States v. Lloyd, 992 F.2d 348 (D.C. Cir. 1993) ("Lloyd I") (remanding case for determination by government and by district court whether previously undisclosed tax returns of government witnesses were material to defense); United States v. Brooks, 966 F.2d 1500, 1504-05 (D.C. Cir. 1992) (remanding case for determination by government whether police records contained Brady material).

B.The Government is Obligated Under Brady v. Maryland to Disclose Evidence of a Defense Witness' Cooperation with the Government and the Benefits Obtained by the Witness

Brady v. Maryland obligates the prosecutor to disclose all evidence favorable to an accused that is material to guilt or punishment. 373 U.S. 83, 87 (1963). Subsequent cases have interpreted this broad obligation to include evidence that could be used to impeach the credibility of a witness. Giglio v. United States, 405 U.S. 150, 154 (1972).

Evidence is material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Kyles v. Whitley, 514 U.S. 419, 433 (1995) (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). Courts have broadly interpreted the materiality requirement in order to assure the defendant a fair trial. Materiality for Brady purposes does not require a demonstration that the evidence would have resulted in acquittal, that the remaining evidence would have been insufficient to convict, or that each item of evidence was material individually where the evidence cumulatively satisfies materiality. Kyles v. Whitley, 514 U.S. at 434-36.

Here, counsel had unconfirmed information that defense witness xxxxxx xxxxxx was the confidential informant in this case, that he had one or two recent or pending D.C. Superior Court cases, which were sealed, and he had cooperated with the government on many occasions by "snitching" on people. The district court and the prosecutor agreed with defense counsel that this information would go to credibility and bias of the witness. (See 1/15/97 afternoon session Tr. 43). Accordingly, the court allowed defense counsel to ask Mr. xxxxxx about this information. However, when Mr. xxxxxx denied defense counsel's accusations, counsel could not impeach him. Had defense counsel had the materials she requested, she could have discredited Mr. xxxxxx's new claim that he had not planted the guns and his earlier statements to police that Mr. xxxxxxx owned the guns. She could have shown how his cooperation with the government was completely self-interested and not reliable. Furthermore, she could have bolstered the defense theory that the guns in Mr. xxxxxxx's room were planted by Mr. xxxxxx by showing his motive for setting up Mr. xxxxxxx, his past history of snitching for self-interest, and the reliability of his confession to defense counsel of planting the guns because it was arguably the one time he had not acted in his own interest. Mr. xxxxxx was the most important witness in this case because he was the only witness who testified about the existence and whereabouts of the guns prior to Mr. xxxxxxx's arrest. If defense counsel had the necessary impeachment information for Mr. xxxxxx, there is more than a reasonably probability that the result of the proceeding would have been different.

This Court has remanded for new trials two recent cases where the government failed to provide full impeachment evidence. In United States v. xxxxxxx, 77 F.3d 511 (D.C. Cir. 1996), the government informed defense counsel of only certain aspects of an agreement it reached with a co-defendant, who would testify against the defendant. The government had not disclosed that, in addition to agreeing to a recommendation for sentencing downward departure and dismissing all counts but one, it had agreed to dismiss two other felony cases pending against the codefendant. The Court held that although the defense counsel was able to impeach the witness based on the disclosed grounds, "[h]ad defense counsel been armed with full disclosure regarding [co-

defendant's] plea agreement, the witness could have been subjected to devastating cross-examination regarding his credibility." Id. at 513.

Similarly in United States v. Cuffie, 80 F.3d 514 (D.C. Cir. 1996), the Court remanded for a new trial where the government did not inform the defendant that a key witness (also a co-defendant) had perjured himself in another judicial proceeding. Defense counsel in Cuffie had impeached the witness with evidence of drug use, government cooperation, and violation of his oath as a police officer. The Court held that cumulative impeachment evidence is material where the evidence impeaches portions of the testimony previously not discredited and found that "[n]one of the impeachment that defense counsel conducted at Cuffie's trial . . . related to perjury." Id. at 518.

Like in xxxxxxx and Cuffie, defense counsel here could not fully impeach Mr. xxxxxx with the limited information available to her. Full disclosure of Mr. xxxxxx's past cooperation would have enabled defense counsel to conduct the "devastating cross-examination regarding [Mr. xxxxxx's] credibility" that the Court relied on in xxxxxxx. Furthermore, without evidence that Mr. xxxxxx was "working off" his time by cooperating with the government, defense counsel was not able to impeach Mr. xxxxxx's self-interested testimony in the government's favor.

C. The Government is not Relieved of Its Brady Obligation Where Its Information Concerns a Defense Witness, Particularly Where the Government Knows Before the Witness Testifies that the Witness Will Turn Against the Defendant and Testify Favorably for the Government

The government refused defense counsel's multiple requests for Brady information because Mr. xxxxxx had been called as a defense witness and it believed neither Brady and its progeny nor Rule 16 imposed an obligation to provide impeachment information as to defense witnesses. (See

1/15/97 afternoon session Tr. 39-43; App. 31). The district court agreed. (1/15/97 afternoon session Tr. 40-41).

The Brady line of cases makes no distinction between exculpatory and impeachment evidence for prosecution and for defense witnesses. Brady simply directs the disclosure of "evidence favorable to the accused . . . where the evidence is material either to guilt or to punishment . . . ." 373 U.S. at 87. Similarly, Giglio holds that "[w]hen the 'reliability of a given witness may well be determinative of guilt or innocence,' nondisclosure of evidence affecting credibility falls within this general rule." 405 U.S. at 154 (quoting Napue v. Illinois, 360 U.S. 264, 269 (1959)). Neither case, nor their progeny, limits the Brady obligation to government witnesses. Other circuits have stated that where impeachment evidence of a defense witness is favorable to the defendant and not otherwise available to defense counsel, it must be produced by the government at least in time for its effective use at trial. See United States v. Presser, 844 F.2d 1275, 1283-84 (6th Cir. 1988); United States v. Starusko, 729 F.2d 256, 262 (3d Cir. 1984); United States v. Natale, 526 F.2d 1160, 1170 (2d Cir. 1975).

Furthermore, the due process concerns for a fair trial that underlie Brady and its progeny cannot support such a distinction. Due process requires the disclosure of impeachment evidence against a defense witness where it is material to the defendant's case. Withholding such evidence is unfair to the defendant and could result in an unreliable verdict. This interest in a fair trial is in no way diminished simply because the witness is introduced by the defense. The government's only interest in not disclosing impeachment evidence for defense witnesses is that it not be required to disclose prior to trial its entire case, consistent with our adversary system for trials. However, when impeachment evidence is favorable to the defense, it generally would not also be claimed by the government as impeachment evidence and, therefore, would not prejudice the government's case through early disclosure.

Here, where the defense witness turned into a witness for the government, and where the government held exclusive control of evidence was clearly favorable to the defendant, there can be no question that Brady and Giglio apply. The prosecutor met with Mr. xxxxxx just before he was to testify as a defense witness. The prosecutor knew before Mr. xxxxxx was called to the stand that he would turn on the defendant and testify favorably to the government. The prosecutor also knew of defense counsel's requests for evidence on Mr. xxxxxx's cooperation with the government, his sealed cases and any pending cases for which he was awaiting sentencing. Mr. xxxxxxx clearly needed this evidence to defend himself against Mr. xxxxxx's unfavorable (and unreliable) testimony. Due process requires the disclosure of this exculpatory and impeachment evidence in order for Mr. xxxxxxx to have a fair trial.

D. The Government is not Relieved of Its Brady Obligation Merely Because It Does Not Have Ready Access to the Requested Information

In response to defense counsel's request for Brady material prior to calling xxxxxx xxxxxx as a witness, the prosecutor responded:

Obviously 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.

(1/15/97 morning session Tr. 68). The district court then labeled defense counsel's request "premature" and delayed deciding the issue until after Mr. xxxxxx met with the prosecutor and decided if he would testify. Again, during Mr. xxxxxx's testimony, defense counsel renewed her request for Brady material. The prosecutor, in response to the court, stated that she did not have any Brady material with her. She told the court that "[c]learly, I think there may be some records that the police might have." (1/15/97 afternoon session Tr. 42). The court then denied defense counsel's request, in part because they had "come to the end of trial." (Id.).

The prosecutor's Brady obligation does not end with his or her files. "[T]he individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police." Kyles, 514 U.S. at 437. This Court has specifically held prosecutors responsible for disclosing information in Metropolitan Police Department files "[g]iven 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) . . . ." Brooks, 966 F.2d at 1503. The duty to search police files is triggered in this case by the specific defense request for information on Mr. xxxxxx from identifiable police and D.C. Superior Court files. See id.

Had the court ordered the prosecutor to disclose the requested material, there would have been a brief delay in Mr. xxxxxxx's trial while the prosecutor obtained records from police officers and the D.C. Superior Court. However, any prejudice or inconvenience resulting from the delay would be far outweighed by the interest in providing Mr. xxxxxxx a fair trial. The prospect of a short delay should not relieve the government of its Brady obligations.

CONCLUSION

Because the government refused to produce evidence that defense counsel believed was in the government's possession and was favorable to the defense, and because the district court failed to order the government to produce the evidence or to review the disputed evidence itself, Appellant xxxxxxx L. xxxxxxx respectfully requests that this Court remand his case to the district court with orders for the government to disclose exculpatory and impeachment Brady material relating to xxxxxx xxxxxx and for a determination by the district court as to whether the Brady material warrants a new trial.

Respectfully submitted,

A.J. KRAMER

FEDERAL PUBLIC DEFENDER

____________________________________________

Evelina J. Norwinski

Assistant Federal Public Defender

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500

Counsel for Appellant xxxxxxx L. xxxxxxx

CERTIFICATE OF LENGTH

I HEREBY CERTIFY that the foregoing Brief for Appellant does not exceed the number of words permitted by D. C. Circuit Rule 28(d).

________________________________________

Evelina J. Norwinski

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on March 30, 1998, two copies of the foregoing Brief for Appellant and one copy of the accompanying Appendix were served by hand on John R. Fisher, Chief, Appellate Section, Criminal Division, United States Attorney's Office, 555 4th Street, N.W., Washington, D.C. 20001.

__________________________________________

Evelina J. Norwinski