stating no suppression when prosecution did not disclose the witnesses’ statements but defense knew of witnesses’ identities; noting that “any allegation of suppression boils down to an assessment of what the State knows at trial in comparison to the knowledge held by the defense”
How later courts described this case
- stating no suppression when prosecution did not disclose the witnesses’ statements but defense knew of witnesses’ identities; noting that “any allegation of suppression boils down to an assessment of what the State knows at trial in comparison to the knowledge held by the defense”
- holding that the government’s late disclosure of a statement by a government witness did not require reversal under the Jencks Act where the defendants were allowed a second chance to cross-examine the witness
- holding that government’s late disclosure of statement by a government’s witness, did not require reversal under the Jencks Act where the defendants were allowed a second change to cross-examine the witness
- finding no violation of the defendants’ constitutional right to compel testimony of witnesses where the district court declined to allow the prosecutor to be used as a witness but allowed the defendants to use the prosecutor’s notes on cross-examination
Written by the judges who cited it.
The opinion
FERGUSON, Circuit Judge,
concurring:
I concur in the opinion of the majority and I write only to clarify the limited nature of the opinion's holding regarding the defendants’ Brady claim. Unfortunately, much of the language contained in the discussion of the Brady issue not only outstrips the facts and disposition of this claim, it also conflicts with the disposition of this case. With the limited holding of the court properly defined, I concur in the disposition of the Brady claim.
The prosecutor engaged in pretrial discussions with the codefendants of the appellants and promised to conceal the occurrence and contents of the meeting. The prosecutor took some notes of her conversations with these codefendants, however, and one week into the trial she turned the notes over to the district court. As the district court observed, and the majority opinion recognizes, the “prosecutor considered her notes Brady material.” Majority Opinion, supra, at 1502. Instead of disclosing the material to the defense, however, the prosecutor submitted her notes to the district court. The court sealed the notes and failed to review their contents. The court chose instead to refer the defendants to alternate means of learning the contents of the conversations memorialized in the prosecutor’s notes. The district court considered the prosecutor’s identification of the participants to the meeting to be an adequate substitute for disclosure of the Brady material.
We reject this procedure as error and remand the Brady claim to the district court for the assessment it should have made when it first received the notes from the prosecutor. There is only one difference between the inquiry the district court should have made initially and the inquiry it must now conduct on remand. On remand the district court must further ascertain whether any disclosure the prosecutor should have made constitutes harmless error under Chapman v. California, 386 U.S. 18, 24 , 87 S.Ct. 824, 828 , 17 L.Ed.2d 705 (1967).
The opinion correctly holds that a district court cannot accept conceded Brady material and fail either to disclose it or make a determination whether it should be disclosed. The opinion identifies four other propositions, not necessary to the disposition of this case, that are dicta. I write this separate concurrence to clarify the status of these propositions.
The first item of dicta is contained in the court’s statement that the prosecutor “satisfied her duty to disclose exculpatory material” by “submitting the issue to the judge.” Majority Opinion at 1501. In cases where the status of certain material as Brady material is a close question, we have approved a procedure whereby the prosecutor can submit the material to the court for a final resolution of its status. United States v. Gardner, 611 F.2d 770, 774-75 (9th Cir.1980). Once this judicial *1504 task is accepted by the district court, of course, the court must make the appropriate findings. See United States v. Agurs, 427 U.S. 97 , 96 S.Ct. 2392 , 49 L.Ed.2d 342 (1976). The constitutional duty to disclose articulated in Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963), however, never shifts from the prosecution to the court. See United States v. Cadet, 727 F.2d 1453, 1467 (9th Cir.1984) (government bears constitutional duty to disclose notwithstanding absence of judicial order). Vindication of the government’s disclosure determination by the court simply means that the government was not under any duty to disclose in the first place. Where disclosure is required, however, it remains the duty of the prosecutor to disclose in conformity with her constitutional duty under Brady. United States v. Cadet, 727 F.2d at 1467 . By accepting the judicial task of reviewing discovery disputes between the litigants, the court does not thereby assume the prosecution’s constitutional responsibilities. Brady imposed minimal disclosure obligations on the prosecution, not on the judiciary. In this case the prosecutor has admitted that some, if not all, of the disputed material is subject to disclosure under Brady . The district court’s judicial task is to enforce, not assume, this duty. The district court’s retention of submitted Brady material does not transform the court into a party such that it assumes the disclosure obligations otherwise borne by the government. However, if the government could meet its Brady responsibilities by merely using the court as a repository, district courts would soon inherit a warehouse of filing cabinets.
The second assertion offered by the majority without factual or precedential support is the suggestion that, in reviewing the Brady material, “the trial judge can then weigh the Government’s need for confidentiality against the defendant’s need to use the material in order to obtain a fair trial.” Majority Opinion at 1501. I agree that the executive branch is endowed with a general privilege for the confidences essential to its basic functions. United States v. Nixon, 418 U.S. 683, 711-13 , 94 S.Ct. 3090, 3109-10 , 41 L.Ed.2d 1039 (1974). The scope of this qualified privilege, however, is narrow and “must yield to the demonstrated, specific need for evidence in a pending criminal trial.” Id. at 713 , 94 S.Ct. at 3110 . We need not address the unlikely prospect of the availability of a privilege in this case because the prosecutor did not assert any privilege. In any event, the Brady decision has already identified where the Fifth Amendment has struck the balance between the suppression or disclosure of material exculpatory information requested by the defendant. Brady teaches that a trial in which the prosecution withholds material exculpatory information requested by the defendant is not a fair trial. Brady v. Maryland, 373 U.S. 83, 87 , 83 S.Ct. 1194, 1196 , 10 L.Ed.2d 215 (1963) (suppression of requested exculpatory material evidence violates due process). Moreover, compliance with Brady’s minimal demands does not turn on the good or bad faith of the individual prosecutor. Id. at 87 , 83 S.Ct. at 1196 ; United States v. Agurs, 427 U.S. at 110 , 96 S.Ct. at 2400 . Accordingly, the defendant’s constitutional right to the disclosure of exculpatory information cannot be lost through improvident or impermissible representations by a prosecutor to a third party as to the confidentiality of Brady material. The prosecutor’s good faith belief as to her authority to barter away the defendant’s Brady claims is simply immaterial.
The third item of dicta expressed by the majority opinion is contained in footnote five. Its presence there is innocuous enough were it not for the fact that it appears to contradict the holding of this case. Quoting an Eleventh Circuit opinion out of context, the footnote appears to adopt the position that mere disclosure of the identity of a witness by the prosecution suffices to meet the demands of Brady . 1 *1505 Majority Opinion at 1501 n. 5 (quoting United States v. Griggs, 713 F.2d 672 (11th Cir.1983)). That is the position taken by the district court in the trial below and that is the ruling we now reverse. The Brady material involved in this case — the notes of the prosecutor — was retained by the court and withheld from the defendants. We hold that the disclosure of the identity of those attending the meeting described in the notes instead of disclosing the notes, if disclosure is warranted, violated the commands of Brady .
The final item of dicta offered by the majority opinion is the suggestion that “the procedures followed by the district court could have satisfied the Brady requirement” if the defendants had been seeking to obtain statements made by their codefendants. Majority Opinion at 1502. As the majority opinion observes, we are not faced with a request for statements made by the codefendants. Instead, the only Brady question at issue is the procedure followed by the district court regarding the prosecutor’s notes. We have found this procedure to be error. We, like the district court, have no basis on which to speculate as to the prosecutor’s obligation to disclose material exculpatory statements, written or oral, by the codefendants.
In conclusion, I concur in the majority opinion’s discussion of the Brady question only insofar as it relates to the disposition of the case before us.
. The "succinct" quotation from United States v. Griggs, 713 F.2d 672, 674 (11th Cir.1983), recited in footnote five has a critical deletion. See Majority Opinion at 1501 n. 5 (“ 'Where defendants, prior to trial, had within their knowledge the information by which they could have ascer *1505 tamed the alleged Brady material, there is no suppression by the government.’ ”) (deleted material in italics). By her own conduct the prosecutor guaranteed that the defendants would know nothing about the occurrence of her meeting with the codefendants, the conversations therein, and her notes of their discussion. The prosecutor suppressed the information until a week after the trial commenced. It is simply disingenuous to suggest that concealment of known Brady material until midway through trial does not constitute suppression while at the same time upholding the "propriety of prosecutor decisions” as to the timing of Brady disclosure. See Majority Opinion at 1502 n. 7.