We should all read United States v. Cloud, --- F.4th ---, No. 22-30044 (9th Cir. 2024).
On an interlocutory government appeal, the Court affirmed the district court’s order, imposed under its exercise of supervisory powers, directing the Government to pay monetary sanctions as reimbursement for the time spent getting to the bottom of the Government’s nondisclosure of information suggesting that its star witness in a criminal trial was willing to shape her testimony in exchange for certain benefits.
In the midst of a complicated five-body homicide trial, the district court learned that the Government failed to turn over information suggesting that its star witness, Esmeralda Z., was willing to shape her testimony in exchange for certain benefits. The defense did not learn of this turn of events from the Government. Rather, the night before the witness was expected to testify, her counsel alerted defense counsel of text messages that implicated Esmeralda’s credibility. Defense counsel informed the court, and after hearing testimony that revealed additional troubling details, the court entered an order sanctioning the Government for violating James Cloud’s due process rights under Brady v. Maryland, 373 U.S. 83 (1963). The court excluded the witness and ordered the Government to pay a modest monetary sanction as reimbursement for the time spent getting to the bottom of the nondisclosure.Not only did the Government suppress evidence, but that suppression was material under Brady. Consistent with our circuit precedent, we affirm the monetary sanctions against the Government, which were imposed under the district court’s exercise of supervisory powers, and we reject the Government’s argument that sovereign-immunity principles bar the sanctions. See United States v. Woodley, 9 F.3d 774, 782 (9th Cir. 1993).The Court has counseled that a due process violation under Brady and Giglio has “three components”: “[1] The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; [2] that evidence must have been suppressed by the [government], willfully or inadvertently; and [3] prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281–82 (1999).Favorability is not in question: “[E]vidence that has any . . . impeachment value is, by definition, favorable.” Comstock v. Humphries, 786 F.3d 701, 708 (9th Cir. 2015) (citation omitted). The district court correctly concluded— and the Government does not dispute—that the first Brady prong was thus satisfied. Evidence that Esmeralda, a material witness, was negotiating financial benefits for her testimony squarely put her credibility into doubt. Likewise, evidence that Esmeralda’s boyfriend attempted to bargain with a federal agent in exchange for her favorable testimony did the same. Esmeralda’s admission that although she was somewhat confused about what happened during the shooting, she was willing to nonetheless “change” her testimony and say “whatever” the Government “wanted [her] to say” is classic impeachment evidence.The Government acknowledges that the suppression determination—which is intrinsically bound up in a district court’s factual findings—is likely entitled to deferential review. We agree and join our sister circuits in holding that clear error review applies to a district court’s factual findings in the Brady context.The “duty to disclose is affirmative”—the Government’s obligation is not contingent on a request by the accused.[T]he Government took the position that the proposed order was unnecessary, as “[t]he United States is well aware of its duties under Brady.” Hindsight suggests otherwise.The rule is disclosure, not gaming the impact the disclosure might have. Rather than abide by that rule, however, the Government remained silent.Given the record and the district court’s findings (which easily withstand clear error review), we have little trouble concluding that the evidence was suppressed.In evaluating materiality, our Brady case law has used “prejudice” and “materiality” interchangeably, and we do so here. We agree with the district court that the Government’s suppression prejudiced Cloud under the materiality standard applicable to withheld evidence discovered before or during trial. This analysis differs from the traditional Brady scenario in which the government’s suppression is discovered after a trial and conviction. In the latter, more typical Brady scenario, suppressed evidence is deemed material where “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Strickler, 527 U.S. at 280 (citation omitted). But, as we have observed, this standard “necessarily is a retrospective test, evaluating the strength of the evidence after trial has concluded.” United States v. Olsen, 704 F.3d 1172, 1183 (9th Cir. 2013). This analytical framework is a poor fit in cases like this one, where the suppression is discovered during trial and before a “look back” is possible.[T]he “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.”“Whether a jury would ultimately find the evidence convincing and lead to an acquittal is not the measuring rod here.” Id. at 1033. Rather, the materiality inquiry should evaluate the relative value of the withheld evidence “on the basis of the indictment, the pretrial proceedings, the opening statements, and the evidence introduced up to that point.” Id. We also suggested that the materiality analysis could consider whether, had the evidence been timely disclosed, it might have altered the prosecution or defense strategy.[I]n arguing that any prejudice was ultimately avoided because Esmeralda did not testify, the Government asks us to create a perverse rule: that it cannot be sanctioned for withholding impeachment evidence about a critical witness whose testimony could have been determinative of guilt or innocence, simply because the district court caught its misconduct too early. This argument, if taken to its logical extreme, could risk preventing a trial judge from imposing any forward-looking Brady sanction under the rationale that there can be no due process violation unless and until the court permits the government’s concealment of evidence to fatally taint the trial’s result.Finally, we consider whether the district court violated the Government’s sovereign immunity by imposing monetary sanctions under an exercise of its supervisory powers. This question was answered in United States v. Woodley: “Sovereign immunity does not bar a court from imposing monetary sanctions under an exercise of its supervisory powers.” 9 F.3d at 782. The district court thus did not plainly err in imposing this sanction.
