Case o' The Week: The Price is Right --Discovery of Brady Materials in U.S. v. Price

Judge Stephen Reinhardt (right) delivers a remarkable Brady decision in United States v. Price, __ F.3d __, No. 05-30323, 2009 WL 1408117 (9th Cir. May 21, 2009), decision available here.

Players: Decision by Judge Reinhardt, joined by Judges Goodwin and Pregerson.

Facts: Delray Price was arrested in the back seat of a car after a gun was found beneath the driver’s seat. Id. at *1. Little evidence tied this felon to the pistol, save the testimony of a woman who said she saw it in his waistband shortly before the arrest. Id. at *3. He was convicted of a § 922(g) count at trial. Id. at *1. After trial, it was discovered that this female witness had suffered a number of arrests and priors. Id. at *4. At several new-trial hearings the AUSA reversed himself on whether he had in fact disclosed this Brady material to the defense. The district court denied the new-trial motion.

Issue(s): “There are three components of a Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully of inadvertently; and prejudice must have ensued. . . . 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 favorable to the accused . . . . Our decision therefore turns on the two remaining components of the Brady analysis.” Id. at *5 (quotations and citations omitted).

Held: “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 . . . and its progeny.” Id. at *2.

Of Note: Price is a great start for any Brady battle. Judge Reinhardt explains the scope of the rule, identifies unresolved issues on standard of review, id. at *5, and discusses the problem of whether inadmissible evidence falls within the Brady rule. Id. at *9. It is chock-full of bon mots, such as footnote 14, where Judge Reinhardt reminds AUSAs that Brady obligations extend beyond disclosure of convictions – an AUSA must “disclose all information bearing on a government witness’s credibility.” Id. at *9 n.14 (emphasis in original). Footnote 14 favorably quotes Acosta and Sudikoff, two district court decisions that properly explain how Brady material must be identified and disclosed.

Note 14 alone is worth the Price of admission: it should be quoted verbatim in discovery letters.

How to Use: Price is an embarrassment of riches: here’s two jewels. First, Judge Reinhardt cleverly uses very recent, new Ninth evidence rules to find that the impeachment material would have been admissible. Id. at *9 (citing Osazuwa (blogged here). The decision correctly flags the ripple effect of the Ninth’s new holding on FRE 608(b) and impeachment by prior conduct – Osazuwa’s holding broadens an AUSA’s Brady obligations. (Assuming, without conceding, that only admissible evidence falls under Brady).

Second, the opinion again teaches that Brady applies even if the prosecutor did not personally know of the material. Id. at *6. Put bluntly, a federal AUSA is on the hook for Brady information known to state cops. With the widespread federalization of traditional state crimes, this is a lesson too-frequently ignored by AUSAs. Again, Price merits heavy quotation in discovery demands – particularly in federalized state cases.

For Further Reading: The panel describes the AUSA’s performance as “troubling” and warns it may “warrant further inquiry by the district judge” on remand. Id. at *9. Yet the opinion never identifies the trial AUSA by name (a common practice by appellate panels).

It is a fair to ask whether not specifically naming this AUSA dilutes the deterrent impact of the decision. His name, previously listed in this blog entry, has been removed at the request of one of his colleagues in the Portland United States Attorney's Office. This prosecutor's identity is, of course, still a matter of public record and can be found in the Appellant's Brief at 2006 WL 3380702.

Whether or not to name names is a fair question. Comments and debate on whether the Ninth -- or this blog -- should specifically identify prosecutors who, for example, commit Brady violations are welcome.

Image of the Hon. Stephen Reinhardt from http://americanconstitutionsociety.org/chapters/students/index.shtml

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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Case o' The Week: Shutting the Door on "Opening the Door," Osazuwa and FRE 608 and 609

Judge Graber (left) explains a new Ninth Circuit rule on the use of specific acts of conduct to impeach, in a great case untangling the interplay of Federal Rules of Evidence 608 and 609. United States v. Osazuwa,__ F.3d __, No. 08-50244, 2009 WL 1232107 (9th Cir. May 7, 2009), decision available here.

Players: Decision by Judge Graber, joined by Judges Pregerson and Wardlaw. Admirable win by CD Cal. AFPD Elizabeth Newman.

Facts: Osazuwa was tried on charges of assaulting a prison guard while serving a sentence for failing to pay restitution for bank fraud (his original bank fraud sentence had been one day custody). Id. at *1. Osazuwa’s testimony conflicted with that of the guard at trial. Id. at *1-*2.

Over defense objection the government crossed the defendant on the specific details of the previous bank fraud conviction, seeking concessions of various lies made during that crime. Id. at *2-*3. The district court permitted this cross, holding that Osazuwa had “opened the door” to this inquiry by (truthfully) stating he had served only one day for this bank fraud crime. Id. at *3. Under this “open door” theory, the court held, specific acts of untruthfulness otherwise barred under FRE 609 were admissible. Id.

Moreover, the court also held that the specific acts of untruthfulness were admissible under FRE 608. Id. The court gave a limiting instruction; the line of inquiry was not mentioned in the government’s closing. Id.

Issue(s): 1. FRE 608: “Defendant first argues that the district court erred in holding that the admission of the facts underlying his bank fraud conviction was warranted under Rule 608 . . . The crux of Defendant’s argument is that Rule 608 applies only to specific instances of conduct that were not the basis of a criminal conviction. Evidence relating to a conviction, he argues, his treated solely under Rule 609.” Id. at *4.

2. FRE 609: “The next question is whether the impeachment evidence was properly admitted under Rule 609 . . ." Id. at *6. “The government does not argue in this case that its cross-examination of Defendant stayed within the established bounds of inquiry under Rule 609. It instead asserts that Defendant ‘opened the door’ to questions about his specific dishonest acts because his testimony about serving only one day in prison minimized the seriousness of his bank fraud conviction.” Id. at *6.

Held: 1. FRE 608: “[W]e hold that Rule 608(b) permits impeachment only by specific acts that have not resulted in a criminal conviction. Evidence relating to impeachment by way of criminal conviction is treated exclusively under Rule 609 . . . .” Id. at *5.

2. FRE 609: “Defendant did not testify about the underlying facts of, or create a false impression about, his conviction; he truthfully answered the question asked . . . [T]hat answer was insufficient to open the door to questions about the details of the offense.” Id. at *7. “[W]e hold that the district court abused its discretion in admitting evidence of the acts underlying Defendant’s conviction for bank fraud and that the error was not harmless.” Id. at *8.

Of Note: This important evidence case clarifies the use of specific conduct to impeach and the inter-relationships of FRE 608 (limiting impeachment by specific acts) and 609 (impeachment by prior convictions.) Judge Graber’s new rule – consistent with other circuits – is that if a specific act of untruthfulness lead to a conviction, that impeachment falls within FRE 609 (with all of its limitations). The government can’t back-door the use of a specific act otherwise barred by FRE 609, by trying to sneak the impeachment under FRE 608. Good stuff.

How to Use: Osazuwa is a must-read to prep a client who is going to testify, to warn of the dangers of the “open door.” Id. at *6-*7. Judge Graber explains the “open door” theory in detail, and distinguishes between a defendant’s statements to do – and don’t – “open the door” to impeachment by specific acts of untruthful conduct. Id. at *7.

For Further Reading: Quick: which Rule permits admitting otherwise improper evidence after a witness has “opened the door?” This is a trick question – even our Chief Judge is “aware of no authority for admitting inadmissible evidence just because we think turnabout is fair play.” United States v. Wales, 977 F.2d 1323, 1328-29 (9th Cir. 1992) (Kozinski, J., concurring in part.) Wales is Judge Kozinski’s fascinating and compelling attack on the “open the door” theory of evidence. He’s right: it’s a fuzzy theory, not in the rules, that is hard to apply in practice.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org


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