Monday, May 25, 2009

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

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


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