finding "no authority that the government must disclose promises of immunity made to individuals the government does not have testify at trial,” and holding that a grant of immunity could not be “ 'favorable to the accused' as impeachment evidence because the government did not call [the witness] and, thus, there was no one to impeach”
How later courts described this case
- finding "no authority that the government must disclose promises of immunity made to individuals the government does not have testify at trial,” and holding that a grant of immunity could not be “ 'favorable to the accused' as impeachment evidence because the government did not call [the witness] and, thus, there was no one to impeach”
- holding that no Brady violation occurred when the government failed to disclose materials resulting from an interview with the defendant’s colleague, because the *398 defendant was made aware of the information through newspaper reports
- holding that material favorable to the accused must be either “evidence which serves to impeach a government witness’ credibility” or “evidence which is directly exculpatory of the defendant ” (emphasis added)
- arguing that while defendant had notice of witness’s exculpatory statements, defendant would have been far more likely to utilize statements had he known of witness’s undisclosed immunity deal with government
Written by the judges who cited it.
The opinion
NATHANIEL R. JONES, Circuit Judge,
concurring.
I join all but subsection (C)(1) of the majority opinion. I write separately because I disagree with the way the majority deals with the government’s failure to disclose information pertaining to Ronald Garlick.
I.
As the majority notes, the government admits that it possessed a summary of an interview that the FBI conducted with Garlick in which Garlick denied paying any kickbacks. Further, the government obtained an order to compel Ronald Garlick to testify on January 4, 1991, which was well before Mullins’s trial. J.A. at 1620 (Order to Compel Ron Dean Garlick to Testify Before the Grand Jury). This order granted immunity to Gar-lick for his testimony. However, the government did not serve this order on Garlick until July 2, 1992, which was well after Mullins’s trial. J.A. at 155 (Affidavit of David F. DeMouchel, Attorney for Ronald Garlick). The affidavit further states that Mullins’s attorney asked Garlick to testify on Mullins’s behalf, but that DeMouchel advised Garlick to assert his Fifth Amendment privilege to not do so in the absence of a grant of immunity. J.A. at 158-54. The government does not appear to dispute any of the facts alleged in DeMouehel’s affidavit.
Mullins argues that had he known about the interview summary, he could have used it to impeach the testimony of Commander Da-browski, one of the key witnesses against Mullins, who testified, among other things, that he and Mullins had received kickbacks from Garlick. Moreover, Mullins argues that had he known about the grant of immunity, he could have compelled Garlick to testify directly that there were no kickbacks. Mullins further points out that the government had no reason for keeping its compulsion order secret for 18 months other than to prevent Mullins from compelling Garlick to testify at Mullins’s trial.
II.
In Brady v. Maryland, 373 U.S. 83, 87 , 83 S.Ct. 1194, 1196-97 , 10 L.Ed.2d 215 (1963), the Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment.” Thus, the prosecutor is required under Brady “to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial.” United States v. Bagley, 473 U.S. 667, 675 , 105 S.Ct. 3375, 3380 , 87 L.Ed.2d 481 (1985). As the majority correctly explained, in United States v. Clark, 928 F.2d 733 (6th *1375 Cir.), cert. denied, — U.S. -, 112 S.Ct. 144 , 116 L.Ed.2d 110 (1991), we held that “[n]o Brady violation exists where a defendant knew or should have known the essential facts permitting him to take advantage of any exculpatory information, or where the evidence is available to defendant from another source.” (Quotation and citations omitted). However, the majority incorrectly applies this proposition of law so as to excuse the government’s failure to disclose its information about Garlick. The majority holds that, because Mullins knew that Garlick denied having paid any kickbacks, under Clark , the government’s failure to disclose this information did not violate Brady .
The problem with the majority view is that Mullins obviously did not know, and had no reason to know, the single most “essential fact” that would have permitted him to take advantage of the exculpatory information contained in the interview summary — namely the fact that the government had granted immunity to Garlick. Without this knowledge, Mullins was utterly unable to make use of Garlick’s denial of making kickbacks. Further, although Mullins knew of the denial from another source, the other source was mere hearsay, totally inadmissible, and so there was no evidence available to Mullins from another source.
Therefore, Clark does not apply to the government’s failure to disclose the interview summary and grant of immunity. Pursuant to Brady , it follows that if the summary and grant of immunity were material to Mullins’s conviction or punishment, Mullins would have had a right to disclosure of this evidence.
III.
Despite my disagreement with the subsection (C)(1) of the majority opinion, I agree with the majority that .Mullins’s Brady arguments do not justify reversal. As discussed above, in order to merit a new trial, Mullins has to show not only that the government suppressed favorable evidence, but also that the evidence was material to Mullins’s guilt or punishment. Mullins has not met this burden.
In elucidating the concept of “materiality” in the context of applying the Brady rule, the Supreme Court instructs that undisclosed evidence is material “only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability' is a probability sufficient to undermine confidence in the outcome.” Bagley, 473 U.S. at 682 , 105 S.Ct. at 3383 (plurality opinion); id. at 685 , 105 S.Ct. at 3385 (White, J., concurring). In arriving at this standard, the Court specifically rejected the view 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, [establishes] ‘materiality’ in the constitutional sense.” Agurs, 427 U.S. at 109-10, 96 S.Ct. at 2400. It has also rejected the proposition that the “moral culpability, or the willfulness, of the prosecutor” is a relevant consideration. “If the suppression of evidence results in constitutional error, it is because of the character of the evidence, not the character of the prosecutor.” Id. at 110, 96 S.Ct. at 2401. Finally, the Court also rejected the use of “the customary harmless-error standard”; otherwise, every nondisclosure would turn out to be reversible error. Id. at 112, 96 S.Ct. at 2401.
Applying the Bagley standard of materiality to the present ease, it is important to remember that Mullins was not charged with nor convicted of receiving kickbacks from Garlick. If he were, then Garlick’s testimony could well have changed the outcome. Disclosing the interview summary and the secret grant of immunity to Garlick would have enabled Mullins to compel Garlick to testify, which could have resulted in Mullins’s being acquitted of a charge of receiving kickbacks. Under these circumstances, Brady and Bag-ley would have required a reversal of a kickbacks conviction.
However, the fact is that Mullins was convicted on charges of obstructing justice and tampering with witnesses. In light of the substantial evidence against Mullins on these charges, it is improbable that Garlick’s denial of paying kickbacks would have changed the jury’s determination that Mullins was guilty. *1376 Although the defense could have used Gar-lick’s testimony to impeach Dabrowski, who testified that he and Mullins had received kickbacks, there was ample evidence in addition to Dabrowski’s testimony to support the jury’s verdict on all six of the counts on which Mullins was convicted. For example, at least four different aviation section members testified that Mullins instructed them to alter their flight log books. J.A. at 666-68, 673-79, 774-78, 1119-22, 1468-60. Garlick’s testimony would not have cast suspicion on the veracity of any of this evidence.
IV.
Not only did the prosecutor fail to disclose the interview summary and the immunity order, but he did not serve the immunity order for 18 months, a delay that I can only ascribe to a misguided desire to keep the order secret. Even though the government’s failure to disclose the order compelling Gar-lick to testify, along with other failures to disclose that are discussed in the majority opinion, do not result in a reversal, I must stress that the prosecutor’s conduct indicates a frightening breach of duty. Insofar as no legitimate purpose was served by these non-disclosures, the prosecutor’s conduct bespeaks a “win at all costs” attitude that is inconsistent with his oath of office. As the Supreme Court has often reminded us:
The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
Berger v. United States, 295 U.S. 78, 88 , 55 S.Ct. 629, 633 , 79 L.Ed. 1314 (1935).
In the present case, the majority and I agree that Mullins’s conviction is not wrongful, and so we affirm. However, this should not be viewed as an affirmance of the prosecutor’s apparent strategy of not disclosing evidence favorable to the defendant. I, for one, reject such strategies, and I lament the disrespect for the law that they engender.