United States v. Harold Oxman, United States of America v. William H. Pflaumer

SLOVITER, Circuit Judge,

dissenting.

The difficult issue before us, and one with which the Courts of Appeals have struggled since United States v. Agurs, 427 U.S. 97 , 96 S.Ct. 2392 , 49 L.Ed.2d 342 (1976), is the determination of the materiality of evidence that the prosecutor did not disclose in response to a specific request by defense counsel for Brady material.

In United States v. Higgs, 713 F.2d 39 (3d Cir.1983), cert, denied, — U.S. -, 104 S.Ct. 725 , 79 L.Ed.2d 185 (1984), this court summarized the Agurs decision as follows:

In Agurs the Supreme Court analyzed the requirements of materiality in three different situations. First, where the *1320 prosecutor’s case includes perjured testimony and the prosecution knew, or should have known of the perjury, the undisclosed information is material “if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” 427 U.S. at 103 , 96 S.Ct. at 2397 . Second, where the defendant has made a specific request for information, any undisclosed information will be considered material if “the suppressed evidence might have affected the outcome of the trial.” Id. at 104 , 96 S.Ct. at 2398 . Finally, when no request is made by the defendant or only a general request for Brady material is made, undisclosed information will be held to be material only if “the omitted evidence creates a reasonable doubt that did not otherwise exist.” Id. at 112 , 96 S.Ct. at 2402 .

713 F.2d at 42 . See also United States ex rel. Marzeno v. Gengler, 574 F.2d 730, 735-36 (3d Cir.1978).

It is patent that under Agurs , as interpreted and reiterated in Higgs , the standard for materiality of the undisclosed evidence will be easiest to meet in the first situation, i.e., where the prosecutor knowingly used perjured testimony. This is not such a case. Nonetheless, the approach that the majority uses in reaching its ultimate conclusion that a new trial must be granted to Pflaumer mirrors the standard applicable when there has been use of perjured testimony, i.e., “if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” In effect, the majority has circumvented the test Agurs established for the situation, such as here, where the defendant made a specific request for the information, and that requires us to ascertain if “the suppressed evidence might have affected the outcome of the trial.”

The majority accomplishes this by establishing the following steps: (1) requiring a determination of whether “a substantial basis for claiming materiality exists”, 740 F.2d at 1313; (2) viewing such a determination of the import of the evidence prospectively, id.; (3) equating evidence that impeaches an incriminating witness with evidence that “might affect the outcome of the trial,” thereby establishing a per se rule of materiality, id., and (4) utilizing the harmless error test, id.

As I will develop briefly below, I believe in each respect the majority has diverged from both the holding and the spirit of Agurs . Most significantly, by constructing this elaborate multi-step analysis, the majority has pretermitted the simple inquiry required by Agurs — whether the undisclosed evidence was in fact material in the particular case.

1. To determine materiality under Agurs , the defendant here must show that the suppressed evidence “might have affected the outcome of the trial.” The majority has instead devised a new standard, interpreting Agurs as requiring a determination whether “a substantial basis for claiming materiality exists.” See, e.g., 740 F.2d at 1313. This language from Agurs has been taken and applied out of context. The full passage in which it appears in Agurs is:

Although there is, of course, no duty to provide defense counsel with unlimited discovery of everything known by the prosecutor, if the subject matter of such a request is material, or indeed if a substantial basis for claiming materiality exists, it is reasonable to require the prosecutor to respond either by furnishing the information or by submitting the problem to the trial judge. When the prosecutor receives a specific and relevant request, the failure to make any response is seldom, if ever, excusable.

Agurs, 427 U.S. at 106 , 96 S.Ct. at 2399 (emphasis added). This passage was directed to the “pretrial decision of the prosecutor,” not the “post-trial decision of the judge.” Id. at 108 , 96 S.Ct. at 2399 . Nothing in Agurs suggests that the inquiry into materiality in a specific request case can be transmuted into an inquiry whether, from the prosecutor’s standpoint, there was “a substantial basis for claiming materiality”. *1321 Either the undisclosed evidence was material, as defined in Agurs , or it was not.

2. In Agurs , the Court remarked on the “significant practical difference” between the prosecutor’s pretrial decision whether the evidence must be provided to defendant and the judge's post-trial decision whether failure to provide the evidence requires a new trial. Id. As the Court pointed out, “the prosecutor will not have violated his constitutional duty of disclosure unless his omission is of sufficient significance to result in the denial of the defendant’s right to a fair trial.” Id.

However, the majority’s due process analysis views materiality from a prospective standpoint instead of retrospectively, as required. It says:

We hold that defense counsel has a substantial basis for claiming the materiality of evidence impeaching the truthfulness of a prosecution witness when, viewed prospectively as the prosecutor views the evidence before trial, the testimony of the witness incriminates the defendant, and the impeaching evidence significantly impairs the incriminatory quality of that testimony.

740 F.2d at 1313 (emphasis added). The majority’s approach in viewing materiality prospectively is made explicit again in its discussion at 1314. I believe this is plainly erroneous.

3. Despite the majority’s insistence that it rejects any per se standard of materiality, that is precisely what it has fashioned, as is evident in the sentence quoted above and the one that immediately follows it in the majority opinion:

[T]he impeachment of an incriminating witness with significant evidence attacking the truthfulness of his testimony “might affect” the jury’s assessment of reasonable doubt and thereby affect the outcome of the trial.

740 F.2d at 1313. In effect, the majority holds that almost any undisclosed evidence that may impeach an incriminating witness is, by definition, material. Most courts, including this one, have suggested that the standard of materiality should be more favorable to the prosecution for impeachment evidence than for directly exculpatory evidence. As we said in United States v. McCrane, “Agurs’ applicability to the case at bar is subject to some doubt since we are concerned only with impeaching evidence.” 547 F.2d at 205. See United States v. Bracy, 566 F.2d 649, 656 (9th Cir.1977) (“[mjanifestly, a greater duty should be placed on a prosecutor to produce exculpatory evidence than to disclose evidence which could be used for impeachment purposes only”), cert, denied, 439 U.S. 818 , 99 S.Ct. 79 , 58 L.Ed.2d 109 (1978). See also United States v. Imbruglia, 617 F.2d 1, 6-7 (1st Cir.1980). I construe Agurs as directing the courts to ascertain materiality in fact, and the majority’s approach, which cuts off the inquiry when the evidence arguably impeaches an incriminating witness, is inconsistent with that direction.

4. The majority’s use of the harmless error test, while it nominally avoids a rule of automatic reversal, is out of place. The harmless error test is to be applied only after a constitutional error is established. Under Agurs , there has been no constitutional error if the undisclosed evidence was not material, 427 U.S. at 108 , 96 S.Ct. at 2399 .

Furthermore, the stringent harmless error test, even were it appropriate, is closer to the materiality standard where there has been knowing use of perjured testimony (“any reasonable likelihood that the false testimony could have affected the judgment of the jury,” id. at 103 , 96 S.Ct. at 2397 (emphasis added)) than where there has been failure to disclose in response to a specific request (“if the suppressed evidence might have affected the outcome of the trial,” id. at 104 , 96 S.Ct. at 2398 (emphasis added)). 1 As the Fifth Circuit has *1322 said, the “reasonable likelihood” standard of materiality for perjured testimony is “a brother, if not a twin,” of the harmless error standard. United States v. Barham, 595 F.2d 231, 242 (5th Cir.1979), cert, denied, 450 U.S. 1002 , 101 S.Ct. 1711 , 68 L.Ed.2d 205 (1981). Although the distinction between the Agurs standards for materiality in the two situations referred to above may not be readily apparent until there is a closer examination of the language, it is apparent from the context that the Court intended to make it easier for the defendant to show materiality when the prosecution knowingly used perjured testimony than when it withheld evidence. Therefore, the majority’s use of the harmless error standard in its inquiry as to materiality in this case, where there was no knowing use of perjured testimony, imposes a more difficult burden on the prosecution than did the Agurs Court.

Thus, I conclude that the majority’s substitution of a splintered analysis of materiality in lieu of the one-step test enunciated in Agurs is wrong as a matter of law.

Furthermore, I believe the majority has given inadequate weight to the trial court’s assessment of the evidence. In evaluating whether the evidence “might have affected the outcome of the trial,” the appellate courts are required by Agurs to defer to the trial court’s judgment of the evidence. The Court stated:

[Sjince after considering [the undisclosed evidence] in the context of the entire record the trial judge remained convinced of respondent’s guilt beyond a reasonable doubt,' and since we are satisfied that his firsthand appraisal of the record was thorough and entirely reasonable, we hold that the prosecutor’s failure to tender Sewell’s record to the defense did not deprive respondent of a fair trial as guaranteed by the Due Process Clause of the Fifth Amendment.

427 U.S. at 114 , 96 S.Ct. at 2402 .

In this case, the trial court concluded that Wille’s testimony had been “merely cumulative” and that “even if the defense had been able to impeach Mr. Wille with the requested information, the outcome of the trial would have been the same.” App. at 1672a. As the majority acknowledges, we are bound to give the trial court’s evaluation of the evidence great weight. E.g., United States v. Provenzano, 615 F.2d 37, 49 (2d Cir.), cert, denied, 446 U.S. 953 , 100 S.Ct. 2921 , 64 L.Ed.2d 810 (1980); United States v. Librach, 609 F.2d 919, 922 (8th Cir.1979), cert, denied, 444 U.S. 1080 , 100 S.Ct. 1032 , 62 L.Ed.2d 764 (1980); Skinner v. Cardwell, 564 F.2d 1381, 1388 (9th Cir. 1977), cert, denied, 435 U.S. 1009 , 98 S.Ct. 1883 , 56 L.Ed.2d 392 (1978).

Although the majority purports to do so, it fails to give the necessary weight to the trial court’s evaluation. Instead, it states the conclusory opinion that the analysis of the district court “is not adequate.” 740 F.2d at 1319. Unlike the majority, I am unable to so characterize the opinion of the district judge, who heard all the witnesses and weighed the undisclosed evidence of Wille’s immunity agreement against the incriminating testimony of Jock and Luciano. See App. at 1672a-73a.

I share the majority’s concern about the prosecution’s continued restrictive approach to Brady and Agurs . However, our inquiry must be a due process one focused on whether the trial was fair. We cannot use our displeasure with the prosecution as the only basis for awarding a new trial. I simply cannot conclude that the failure to disclose the information about the immunity agreement with Wille rose to a level that constituted a denial of due process. 2 Therefore, I respectfully dissent.

. I have some difficulty in applying the statement in Agurs that "[t]he mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish ‘materiality’ in the constitutional sense,” 427 U.S. at *1322 109-110 , 96 S.Ct. at 2400-01 . If this sentence is not limited to the case where there was only a general request for exculpatory evidence, defendants’ burden to prove materiality would be significantly increased. The context of this sentence in Agurs indicates that the Court was referring only to the general request situation, and hence I am not relying on this language to support the arguments made in the text.

. I am not convinced by the majority’s conclusion that the jury instruction was both erroneous and not harmless when viewed in its totality. I agree, however, that the issue is a close one. Under such circumstances, I believe that *1323 we should have the benefit of oral argument on that issue before reversing on that ground, particularly since both attorneys who argued were helpful in their presentation before this court. However, at the direction of this court, the oral argument was limited to the Brady issue.