Opposition Brief — Chamontae Walker, Petitioner v. United States

Nos. 18-410 and 18-6336

In the Supreme Court of the United States

COREY D. YATES, PETITIONER

v.

UNITED STATES OF AMERICA

CHAMONTAE WALKER, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITIONS FOR WRITS OF CERTIORARI

TO THE DISTRICT OF COLUMBIA COURT OF APPEALS

BRIEF FOR THE UNITED STATES IN OPPOSITION

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

BRIAN A. BENCZKOWSKI

Assistant Attorney General

SANGITA K. RAO

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether Brady v. Maryland, 373 U.S. 83 (1963), required the government to disclose the grand jury testimony of a witness recounting statements made by a defendant (or co-defendant) in the witness’s presence that

the defendant knew the witness had heard.

(I)

TABLE OF CONTENTS

Page

Opinion below ................................................................................ 1

Jurisdiction .................................................................................... 1

Statement ...................................................................................... 2

Argument....................................................................................... 8

Conclusion ................................................................................... 25

TABLE OF AUTHORITIES

Cases:

Allen v. Lee, 366 F.3d 319 (4th Cir.), cert. denied,

543 U.S. 906, and 543 U.S. 919 (2004) ............................... 13

Amado v. Gonzalez, 758 F.3d 1119 (9th Cir. 2014) ............ 18

Archer v. State, 934 So. 2d 1187 (Fla. 2006) ........................ 23

Banks v. Dretke, 540 U.S. 668 (2004) ............................. 13, 14

Banks v. Reynolds, 54 F.3d 1508 (10th Cir. 1995) ............. 17

Bell v. Bell, 512 F.3d 223 (6th Cir.), cert. denied,

555 U.S. 822 (2008).............................................................. 22

Bogle v. State, 213 So. 3d 833 (Fla. 2017),

cert. denied, 138 S. Ct. 738 (2018) ..................................... 23

Brady v. Maryland, 373 U.S. 83 (1963) ...................... 7, 8, 11

Cazares v. United States, 552 U.S. 1056 (2007) .................... 9

Commonwealth v. Paddy, 15 A.3d 431 (Pa. 2011) .............. 16

Cunningham v. Wong, 704 F.3d 1143 (9th Cir.),

cert. denied, 571 U.S. 867 (2013) ....................................... 19

Dennis v. Secretary, 834 F.3d 263 (3d Cir. 2016) ......... 20, 21

Ellsworth v. Warden, 333 F.3d 1 (1st Cir. 2003) ................ 16

Georgiou v. United States, 136 S. Ct. 401 (2015).................. 9

Giles v. Maryland, 386 U.S. 66 (1967)................................. 12

Kyles v. Whitley, 514 U.S. 419 (1995) ............................ 11, 15

Lewis v. Connecticut Comm’r of Corr., 790 F.3d 109

(2d Cir. 2015) ................................................................. 19, 20

(III)

IV

Cases—Continued:

Page

Metz v. United States, 527 U.S. 1039 (1999) ......................... 9

Occhione v. State, 768 So. 2d 1037 (Fla. 2000) .................... 23

People v. Bueno, 409 P.3d 320 (Colo. 2018)......................... 22

People v. Chenault, 845 N.W.2d 731 (Mich. 2014).............. 22

Raley v. Ylst, 470 F.3d 792 (9th Cir. 2006),

cert. denied, 552 U.S. 833 (2007) ....................................... 19

Rhoades v. Henry, 596 F.3d 1170 (9th Cir. 2010)............... 19

Rigas v. United States, 562 U.S. 947 (2010) ......................... 9

Sealed Case No. 99-3096 (Brady Obligations), In re,

185 F.3d 887 (D.C. Cir. 1999) ............................................. 21

Schledwitz v. United States, 519 U.S. 948 (1996) ................. 9

State v. Ilk, 422 P.3d 1219 (Mont. 2018) .............................. 22

State v. Kardor, 867 N.W.2d 686 (N.D. 2015) ..................... 16

State v. Reinert, 419 P.3d 662 (Mont. 2018) ........................ 22

Strickler v. Greene, 527 U.S. 263 (1999) ........................ 13, 14

Tempest v. State, 141 A.3d 677 (R.I. 2016) .......................... 22

United States v. Agurs, 427 U.S. 97 (1976) ......................... 12

United States v. Bagley, 473 U.S. 667 (1985).......... 11, 14, 15

United States v. Bond, 552 F.3d 1092 (9th Cir. 2009) ........ 19

United States v. Derr, 990 F.2d 1330 (D.C. Cir. 1993),

overruled on other grounds by United States v.

Bailey, 36 F.3d 106 (D.C. Cir. 1994), rev’d, 516 U.S.

(1995) ...................................................................................... 8

United States v. Diaz, 922 F.2d 998 (2d Cir. 1990),

cert. denied, 500 U.S. 925 (1991) ....................................... 20

United States v. Hicks, 848 F.2d 1 (1st Cir. 1988) ............. 15

United States v. Howell, 231 F.3d 615 (9th Cir. 2000),

cert. denied, 534 U.S. 831 (2001) ................................. 18, 19

United States v. Infante, 404 F.3d 376 (5th Cir. 2005) ...... 16

United States v. LeRoy, 687 F.2d 610 (2d Cir. 1982),

cert. denied, 459 U.S. 1174 (1983) ..................................... 16

United States v. Parker, 790 F.3d 550 (4th Cir. 2015) ....... 15

V

Cases—Continued:

Page

United States v. Paulino, 445 F.3d 211 (2d Cir.),

cert. denied, 549 U.S. 980 (2006) ................................. 13, 20

United States v. Pelullo, 399 F.3d 197 (3d Cir. 2005),

cert. denied, 546 U.S. 1137 (2006) ..................................... 21

United States v. Quintanilla, 193 F.3d 1139

(10th Cir. 1999), cert. denied, 529 U.S. 1029 (2000) ......... 17

United States v. Robinson, 560 F.2d 507

(2d Cir. 1977), cert. denied, 435 U.S. 905 (1978) .............. 20

United States v. Starusko, 729 F.2d 256

(3d Cir. 1984) ......................................................................... 8

United States v. Tavera, 719 F.3d 705 (6th Cir.

2013) ............................................................................... 21, 22

United States v. Williams, 504 U.S. 36 (1992) ................... 11

United States v. Wilson, 787 F.2d 375 (8th Cir.),

cert. denied, 479 U.S. 857, and 479 U.S. 865 (1986) ......... 13

United States v. Wolf, 839 F.2d 1387 (10th Cir.),

cert. denied, 488 U.S. 923 (1988) ....................................... 18

United States v. Zuazo, 243 F.3d 428 (8th Cir. 2001) ........ 16

Statutes and rule:

D.C. Code (LexisNexis 2010):

§ 22-405(b) ...................................................................... 2, 5

§ 22-1805a ................................................................... 2, 4, 5

§ 22-1806 ......................................................................... 2, 5

§ 22-2101 ..................................................................... 2, 4, 5

§ 22-4502 ..................................................................... 2, 4, 5

§ 22-4503(a)(1) .................................................................... 5

§ 22-4504(a) ........................................................................ 5

§ 22-4504(b) ........................................................................ 5

Fed. R. Crim. P. 52(b) ........................................................... 11

In the Supreme Court of the United States

No. 18-410

COREY D. YATES, PETITIONER

v.

UNITED STATES OF AMERICA

No. 18-6336

CHAMONTAE WALKER, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITIONS FOR WRITS OF CERTIORARI

TO THE DISTRICT OF COLUMBIA COURT OF APPEALS

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the D.C. Court of Appeals (Pet. App.

1a-46a) 1 is reported at 167 A.3d 1191.

JURISDICTION

The judgment of the D.C. Court of Appeals was entered on August 24, 2017. A petition for rehearing was

denied on May 18, 2018 (Pet. App. 77a-78a). On August

6, 2018, the Chief Justice extended the time within

which to file a petition for a writ of certiorari in No. 18Citations to “Pet. App.” refer to the appendix to the petition for

a writ of certiorari filed by petitioner Corey Yates, No. 18-410.

1

(1)

2

410 (Yates) to and including October 1, 2018, and the

petition was filed on that date. The petition for a writ

of certiorari in No. 18-6336 (Walker) was filed on August 16, 2018. The jurisdiction of this Court is invoked

under 28 U.S.C. 1257.

STATEMENT

Following a jury trial in the Superior Court for the

District of Columbia, petitioner Yates was convicted of

second-degree murder while armed, in violation of D.C.

Code §§ 22-2101, 22-4502 (LexisNexis 2010); and being

an accessory after the fact to murder, in violation of

D.C. Code §§ 22-1806, 22-2101 (LexisNexis 2010). Petitioner Walker was convicted of conspiracy to commit

murder, in violation of D.C. Code § 22-1805a (LexisNexis 2010); first-degree murder while armed, in violation of D.C. Code §§ 22-2101, 22-4502 (LexisNexis

2010); assaulting a police officer, in violation of D.C.

Code § 22-405(b) (LexisNexis 2010); and being an accessory after the fact to murder, in violation of D.C. Code

§§ 22-1806, 22-2101 (LexisNexis 2010). Gov’t C.A. Br.

1-2. The trial court sentenced Yates to 24 years of imprisonment and Walker to 40 years of imprisonment.

Id. at 3. The court of appeals affirmed. Pet. App. 1a46a.

1. On September 25, 2010, as Darrell Hendy was

walking down a street in Washington, D.C., Meeko Carraway shot him from behind. Pet. App. 2a. Walker “had

been feuding with Hendy and instigated the shooting.”

Ibid. Walker and Yates “were Carraway’s accomplices”

during the shooting and “after-the-fact accessories.”

Ibid.

On the morning of the shooting, Walker’s girlfriend

broke up with Walker after they had “a long and physically violent fight,” leaving Walker upset and angry.

3

Pet. App. 2a. Walker solicited help from his friends

Yates and Carraway to target Hendy. Id. at 3a. After

Walker purchased a box of ammunition, he had a friend

drive him, Yates, and Carraway to an apartment building at 800 Southern Avenue—the block where Hendy

would later be killed. Ibid. On the ride, Yates sat next

to the ammunition that Walker had purchased. Ibid. As

they neared their destination, both Walker and Yates

commented on seeing “the van”—“an apparent reference to Darrell Hendy’s van, which subsequently was

found in a parking lot at 800 Southern Avenue.” Ibid.

Yates said, “Let’s suit up,” and Walker, Yates, and Carraway got out of the car at 800 Southern Avenue. Id. at

4a. The men went into apartment 405, and Walker told

Yates and Carraway, “you all I got, you all I got, somebody gonna die today.” Id. at 5a.

Walker retrieved his gun from the apartment and

gave it to Carraway, who loaded it with Walker’s ammunition. Pet. App. 5a. The three men located Hendy sitting on the stoop of a nearby store and began “keeping

watch.” Ibid. After Hendy began walking toward his

van, the three men followed him. Id. at 4a-5a. Carraway closed in on Hendy, told Yates and Walker to

“watch this,” and then shot Hendy multiple times from

behind. Id. at 6a. 2

The three men fled to apartment 405. Pet. App. 6a7a. Walker “advised Carraway to cut his hair and

helped him begin doing it.” Id. at 7a. Yates and Walker

left the apartment, but Carraway did not go with them.

In addition to witness accounts of the day’s events, including

Walker’s extensive admissions, video footage from security cameras

captured the three men stalking Hendy and running away. Pet.

App. 6a. They did not, however, record the shooting itself. Ibid.

2

4

Ibid. Police searched the building in the immediate aftermath of the shooting and arrested Carraway in

apartment 405, but they released him soon after because they “lacked sufficient evidence at that time to

charge him for Hendy’s shooting.” Ibid. An officer

found Walker in another apartment “straddling the balcony as if he was going to jump off or climb down.” Ibid.

As the officer tried to handcuff Walker, Walker

“grabbed for the officer’s service pistol,” but he was

eventually restrained. Ibid. Walker also was not

charged with any crimes related to the Hendy murder

at that time; he was released two days later. Ibid.

Two days after the shooting, the police brought

Yates in for questioning. Pet. App. 7a n.6. Yates identified Carraway as the shooter. Id. at 8a n.6. Knowing

Carraway’s arrest was imminent, Walker and Yates

aided Carraway in evading arrest by helping him “hide

out” at unoccupied property belonging to Yates’s family

in Seaboard, North Carolina. Id. at 7a-8a & n.6. Yates

and Walker were seen with Carraway at the property

on September 29, 2010 (four days after the shooting).

Id. at 8a-9a. The next day, Yates spoke with a neighbor

of the North Carolina property over the phone and, after the neighbor questioned Carraway’s presence at the

property, told her that “he would be coming back.” Id.

at 9a. That night, Carraway left the property. Ibid. He

later returned to the District of Columbia and, on October 12, 2010, turned himself in to the police. Id. at 9a

n.8.

In August 2011, a grand jury in the D.C. Superior

Court returned an indictment charging Yates with conspiracy to commit murder, in violation of D.C. Code

§ 22-1805a (LexisNexis 2010); first-degree murder

while armed, in violation of D.C. Code 22-2101, 22-4502

5

(LexisNexis 2010); and being an accessory after the fact

to murder, in violation of D.C. Code §§ 22-1806, 22-2101

(LexisNexis 2010). Gov’t C.A. Br. 1-2. The grand jury

charged Walker with conspiracy to commit murder, in

violation of D.C. Code § 22-1805a (LexisNexis 2010);

first-degree murder while armed, in violation of D.C.

Code §§ 22-2101, 22-4502 (LexisNexis 2010); being an

accessory after the fact to murder, in violation of D.C.

Code §§ 22-1806, 22-2101 (LexisNexis 2010); possession

a firearm during a crime of violence, in violation of

D.C. Code § 22-4504(b) (LexisNexis 2010); unlawful

possession of a firearm, in violation of D.C. Code

§ 22-4503(a)(1) (LexisNexis 2010); carrying a pistol

without a license, in violation of D.C. Code § 22-4504(a)

(LexisNexis 2010); and assaulting a police officer, in violation of D.C. Code § 22-405(b) (LexisNexis 2010).

Gov’t C.A. Br. 1-2. Carraway pleaded guilty to seconddegree murder, while Yates and Walker were tried before a jury. Ibid.

Yates’s defense with respect to the accessory-afterthe-fact charge was that “any actions he took following

Hendy’s murder were not done with the intent to hinder

or prevent Carraway’s arrest.” Pet. App. 10a & n.9. He

presented two witnesses in support of that defense. Id.

at 9a-10a. A police officer testified that, at a police interview two days after the shooting, Yates identified

Carraway as the shooter and the police obtained an arrest warrant for Carraway the next day. Ibid. Attorney

Samuel Hamilton testified that Yates asked him in late

September 2010 whether it would be “wise” for a person

potentially facing charges “ ‘to get a lawyer and to approach the authorities.’ ” Id. at 10a. Hamilton also said

that Yates expressed “vague * * * concerns about possible retaliation.” Ibid. Hamilton had a subsequent

6

meeting with Yates, Walker, and Carraway in which

they asked whether an attorney could help someone

who had concerns about retaliation. Ibid. Yates’s defense to the murder charge itself was that he was an innocent bystander. Id. at 10a n.9. Walker presented no

evidence at trial. Id. at 9a.

The jury found Yates guilty of second-degree murder while armed and being an accessory after the fact

to murder. Gov’t C.A. Br. 2. It acquitted him of murder

conspiracy and first-degree murder while armed. Ibid.

The jury found Walker guilty of conspiracy to commit

murder, first-degree murder while armed, assaulting a

police officer, and being an accessory after the fact to

murder. Ibid. He was acquitted on the remaining

charges. Ibid.; see id. at 2 & n.2.

The trial court sentenced Yates to concurrent terms

of 24 years of imprisonment for second-degree murder

while armed and 12 years of imprisonment for being an

accessory after the fact. Gov’t C.A. Br. 3. The court

sentenced Walker to concurrent terms of eight years of

imprisonment for conspiracy, 40 years of imprisonment

for first-degree murder while armed, 180 days of imprisonment for assault on a police officer, and 30 years

of imprisonment for being an accessory after the fact.

Ibid.

2. Yates filed a motion for judgment of acquittal or

a new trial on various grounds. Pet. App. 48a. The government thereafter “informed Yates about the grand

jury testimony of ‘W-10,’ who was Carraway’s mother

and had not been a witness at trial.” Id. at 23a. “In the

grand jury, W-10 testified to having overheard Yates

urge Carraway to surrender to the police.” Ibid. Specifically, the government disclosed that W-10 testified

7

that on October 12, 2010 (the day Carraway surrendered to the authorities), W-10 spoke with Carraway

outside W-10’s place of work, where W-10 also saw

Walker and Yates. Ibid. Carraway told W-10 that he

was in some trouble and going to turn himself in. Ibid.

Walker was quiet and appeared to be rushing Carraway. Ibid. Yates appeared agitated and rushed. Ibid.

According to the government’s disclosure, “Yates kept

saying, ‘We need to go, if you’re going to do this, you

need to go now before you decide not to do it. You said

you were going to turn yourself in today, let’s go.’ ”

Ibid.; see id. at 65a-68a.

As relevant here, Yates “argued that the government’s failure to disclose W-10’s grand jury testimony

before trial violated Brady [v. Maryland, 373 U.S. 83

(1963),] because her testimony showed that his intent

was not to shield Carraway from arrest but rather to

encourage him to surrender.” Pet. App. 24a. The trial

court, however, “disagreed that there had been a Brady

due process violation for two reasons.” Ibid. First, the

court observed that “because W-10 was with Yates

when he urged Carraway to turn himself in, Yates already knew she could testify to that fact, so the government did not suppress her favorable evidence.” Ibid.;

see id. at 56a-60a (district court’s oral ruling). Second,

the court explained that “even if Yates had presented W10’s testimony at trial, the court was ‘absolutely convinced’ there was no reasonable probability that it would

have changed the outcome of the trial.” Id. at 24a; see

id. at 60a-62a (district court’s oral ruling); see also Yates

Reply in Support of Mot. for New Trial 16 (Oct. 24, 2012)

(making no claim that Yates was unaware that W-10 had

heard him urge Carraway to turn himself in).

8

3. Walker and Yates appealed. The court of appeals

considered their appeals together and affirmed. Pet.

App. 1a-46a.

As relevant here, Yates renewed his claim that the

government violated its Brady obligations by failing to

disclose W-10’s grand jury testimony. Pet. App. 24a.

Like the trial court, the court of appeals rejected that

claim. Id. at 25a. The court explained that “[i]t is wellsettled that ‘Brady only requires disclosure of information unknown to the defendant.’ ” Ibid. (quoting

United States v. Derr, 990 F.2d 1330, 1335 (D.C. Cir.

1993), overruled on other grounds by United States v.

Bailey, 36 F.3d 106 (D.C. Cir. 1994), rev’d, 516 U.S. 137

(1995)). The court further explained that “the government is not obliged under Brady to furnish a defendant

with information which he already has or, with any reasonable diligence, he can obtain himself.” Ibid. (quoting

United States v. Starusko, 729 F.2d 256, 262 (3d Cir.

1984)). Observing that “Yates does not claim to have

been unaware that W-10 was present and heard him

urge Carraway to surrender, nor does he claim to have

been unable to secure W-10’s testimony to that effect at

trial,” the court determined that Brady did not require

disclosure of the grand-jury testimony. Ibid. In light

of that determination, the court found it “unnecessary”

to address the district court’s finding that the evidence

was not material. Ibid.

ARGUMENT

Petitioners contend (Yates Pet. 15-24; Walker Pet. 814) that the government had a constitutional duty under

Brady v. Maryland, 373 U.S. 83 (1963), to disclose W10’s grand jury testimony that she heard Yates urge

Carraway to turn himself in to the authorities in October 2010. They further contend (Yates Pet. 7-15;

9

Walker Pet. 11-14) that this Court’s review is warranted

to resolve a conflict among federal and state courts concerning the scope of the prosecution’s obligation under

Brady to disclose information that a defendant already

knew, or should have known with the exercise of due diligence.

Walker’s claim does not warrant review because he

is raising it for the first time in this Court. In any event,

the court of appeals correctly rejected petitioners’

Brady claim, and its decision does not conflict with any

decision of this Court. To the extent that federal courts

of appeals and state courts of last resort may disagree

as to whether the prosecution must disclose exculpatory

information that a defendant could have discovered with

reasonable diligence, this case is not a suitable vehicle

for addressing any such disagreement. The court of appeals here found that the government did not violate

Brady when the defendant has not claimed to be unaware of the undisclosed information; this case does not

involve a circumstance in which the defendant could

have discovered the information with reasonable diligence. This Court has repeatedly denied petitions for

writs of certiorari presenting similar questions. See

Georgiou v. United States, 136 S. Ct. 401 (2015) (No.

14-1535); Rigas v. United States, 562 U.S. 947 (2010)

(No. 09-1456); Cazares v. United States, 552 U.S. 1056

(2007) (No. 06-10088); Metz v. United States, 527 U.S.

1039 (1999) (No. 98-6220); Schledwitz v. United States,

519 U.S. 948 (1996) (No. 95-2034). It should follow the

same course here. Finally, further review is unwarranted because, (i) regardless of the application of any

due-diligence requirement, petitioners would not be entitled to relief under Brady because they are unable to

demonstrate a reasonable probability that the outcome

10

of their trial would have been different had the information been disclosed; and (ii) as a practical matter, petitioners’ overall sentences would be unaffected by a decision in their favor on the question presented because

they were sentenced to longer concurrent sentences for

other convictions that are not called into doubt by the

Brady issue raised in the petition.

1. As an initial matter, Walker’s Brady claim is not

properly before this Court because he failed to raise it

below. Walker did not raise a Brady claim in the trial

court. He did not file a new trial motion or join in

Yates’s new trial motion, and thus he forfeited any

Brady claim. Walker also failed to raise the claim properly in the court of appeals.

Although Walker contends (Pet. 7) that, in the court

of appeals, he adopted Yates’s argument on the Brady

claim, the record does not support that assertion. In his

opening brief on appeal, Walker stated that he “adopts

the arguments raised in his coappellant’s brief, in particular the issues of the prosecutor’s misstatement of

evidence during closing and of the court’s allowing [a

witness] to opine on the meaning of ‘suit up.’ ” Walker

C.A. Br. 23. He then briefly presented argument on

those two claims. Id. at 22-23. He did not argue, or even

mention, Yates’s Brady claim, which relates to testimony about Yates’s statement, not Walker’s. Nor did

Walker reference the Brady claim in his reply brief.

See Walker C.A. Reply Br. 10-16. Accordingly, the

court of appeals only considered and addressed the factspecific Brady claim with respect to Yates, not Walker.

Pet. App. 23a-25a.

The first time Walker mentioned the Brady claim

was in his petition for rehearing en banc in the court of

appeals, where, as here, he asserted that he had raised

11

the claim previously by joining in Yates’s claims on appeal. See Walker Pet. for Reh’g 12-13. As explained

above, that assertion is not supported by the record.

Because Walker failed to raise the Brady claim below,

the claim is not properly before this Court and further

review is unwarranted. See United States v. Williams,

504 U.S. 36, 41 (1992) (This Court does not review issues

“not pressed or passed upon below.”) (citation omitted).

At a minimum, Walker’s petition is not a good vehicle

for addressing the underlying issue, and this Court

should deny review on that basis. Even if this Court

decided that the claim was properly presented, the

Court could review it only for plain error in light of

Walker’s forfeiture of the claim in the district court.

See Fed. R. Crim. P. 52(b). And in any event, review of

Walker’s petition is unwarranted for all the reasons

identified below.

2. To establish a Brady claim, a defendant must

show that: (1) the prosecution suppressed evidence;

(2) the evidence was favorable to the defendant; and (3)

the evidence was material to the establishment of the

defendant’s guilt or innocence. Brady, 373 U.S. at 87.

Evidence is material under Brady if there is “a reasonable probability that, had the evidence been disclosed to

the defense, the result of the proceeding would have

been different.” Kyles v. Whitley, 514 U.S. 419, 435

(1995) (quoting United States v. Bagley, 473 U.S. 667,

682 (1985)) (opinion of Blackmun, J.). The decision below correctly found that petitioners have not carried

that burden here.

a. The court of appeals correctly determined that

the government had no obligation under Brady to disclose the grand jury testimony of W-10 stating that she

had heard Yates urge Carraway to turn himself in to the

12

authorities on October 12, 2010. The Brady rule is designed to ensure disclosure of “information which had

been known to the prosecution but unknown to the defense.” United States v. Agurs, 427 U.S. 97, 103 (1976);

see Giles v. Maryland, 386 U.S. 66, 96 (1967) (White, J.,

concurring in the judgment) (“[A]ny allegation of suppression boils down to an assessment of what the State

knows at trial in comparison to the knowledge held by

the defense.”).

Here, the court of appeals declined to find a Brady

violation because “Yates does not claim to have been unaware that W-10 was present and heard him urge Carraway to surrender, nor does he claim to have been unable to secure W-10’s testimony to that effect at trial.”

Pet. App. 25a. According to the court of appeals, the

trial court found that “Yates already knew” that Carraway’s mother could testify to the conversation in which

Yates urged Carraway to turn himself in. Id. at 24a.

Petitioners have not challenged the court of appeals’ understanding of the record on this point, and the court’s

statements are a reasonable interpretation of the record. In Yates’s written filing raising his Brady claim,

he did not claim that he lacked knowledge that Carraway’s mother heard him urge Carraway to turn himself

in. Yates Reply in Support of Mot. for New Trial 16. At

a hearing in the district court, although defense counsel

at one point mentioned “the sincerity of [Yates’s] representation that he didn’t remember,” Pet. App. 59a, when

the district court questioned him, defense counsel said,

“it is reasonable to think that” Yates did not remember,

not that Yates was claiming that to be true, ibid. Moreover, Yates did not proffer an affidavit claiming lack of

knowledge, and defense counsel stated that the defense

13

would have to “consider” asking for an evidentiary hearing to establish that proposition, without asserting that

Yates could truthfully so testify. Id. at 61a.

Accordingly, the court of appeals correctly determined that the government had not violated Brady.

Pet. App. 61a; see United States v. Wilson, 787 F.2d

375, 389 (8th Cir.) (“The government is under no obligation to disclose to the defendant that which he already

knows.”), cert. denied, 479 U.S. 857, and 479 U.S. 865

(1986); United States v. Paulino, 445 F.3d 211, 224-225,

227 (2d Cir.) (finding no Brady violation where the government failed to disclose statements made in the midst

of trial by counsel for another defendant because the

statements contained only “information already known

in substance to the defense”), cert. denied, 549 U.S. 980

(2006); Allen v. Lee, 366 F.3d 319, 325 (4th Cir.) (en

banc) (per curiam) (finding no Brady violation where

the defendant had “personal knowledge” of the information contained in undisclosed jail records), cert. denied, 543 U.S. 906, and 543 U.S. 919 (2004). Indeed,

Walker acknowledges (Pet. 11) that “[i]nformation that

is actually known to the defense, of course, cannot be

the basis of a Brady claim.”

b. Petitioners contend (e.g., Yates Pet. 15-19;

Walker Pet. 11) that the court of appeals’ ruling “contravenes” this Court’s precedent, focusing on Strickler

v. Greene, 527 U.S. 263 (1999), and Banks v. Dretke, 540

U.S. 668 (2004). That contention lacks merit. In Strickler, the Court addressed a Brady claim on federal habeas review, but stated that its decision “d[id] not reach,

because it [wa]s not raised in this case, the impact of a

showing by the State that the defendant was aware of

the existence of the documents in question and knew,

or could reasonably discover, how to obtain them.”

14

527 U.S. at 288 n.33. In Banks, the state prosecutor

maintained an open-file discovery policy and affirmatively represented to the defendant that the State had

turned over all exculpatory material, but in fact the

State did not disclose information about a paid informant and about rehearsal sessions with a prosecution witness. 540 U.S. at 675-678. On federal habeas review,

the Court rejected the argument that a “defendant[]

must scavenge for hints of undisclosed Brady material

when the prosecution represents that all such material

has been disclosed.” Id. at 695. But the Court did not

address a situation where the defendant was aware of

the relevant information and did not claim that he could

not secure the evidence or testimony underlying the

Brady claim.

Petitioners contend (e.g., Yates Pet. 19-22; Walker

Pet. 9) that Brady should be interpreted to require disclosure of exculpatory evidence without regard to a defendant’s knowledge of the information or his ability to

obtain the evidence with due diligence, given that a defendant may not have shared the information with defense counsel or may have forgotten what he once knew.

They also advocate for such an interpretation to enforce

the prosecutor’s “duty” to learn of exculpatory evidence, Yates Pet. 16, and “equaliz[e]” resources between the prosecution and the defense, id. at 23; see,

e.g., Walker Pet. 11. The purpose of the Brady rule,

however, “is not to displace the adversary system as the

primary means by which truth is uncovered, but to ensure that a miscarriage of justice does not occur.” Bagley, 473 U.S. at 675. “Thus, the prosecutor is not required to deliver his entire file to defense counsel, but

only to disclose evidence favorable to the accused that,

if suppressed, would deprive the defendant of a fair

15

trial.” Ibid. (footnote omitted); see Kyles, 514 U.S. at

436-437 (“[T]he Constitution is not violated every time

the government fails or chooses not to disclose evidence

that might prove helpful to the defense.”). Brady’s concern for the fairness of trial, rather than the broader

policy considerations put forth by petitioners, supports

the conclusion that due process is not violated when the

defendant, as here, “does not claim to have been unaware” of the substance of the information that the government allegedly failed to disclose, “nor does he claim

to have been unable to secure [pertinent evidence relating to that information] at trial.” Pet. App. 25a. 3

3. The decision below does not conflict with the decision of a federal court of appeals or a state court of

last resort.

a. Petitioners correctly observe (Yates Pet. 7-9;

Walker Pet. 12) that some federal courts of appeals and

state courts have determined that the nondisclosure of

exculpatory evidence did not violate Brady in circumstances where the defendant did not actually possess

the evidence in question but could discover it in the exercise of due diligence. See, e.g., United States v. Parker, 790 F.3d 550, 561-562 (4th Cir. 2015) (“[W]hen exculpatory information is not only available to the defendant but also lies in a source where a reasonable defendant would have looked, a defendant is not entitled

Nor did the government suppress evidence by failing to disclose

that it had memorialized W-10’s observations of the October 12,

2010, conversation through grand jury testimony. Grand jury testimony is generally “inadmissible as hearsay as long as the witness

can be subpoenaed to testify,” United States v. Hicks, 848 F.2d 1, 4

(1st Cir. 1988) (emphasis omitted) (non-disclosure of witness’s

grand jury testimony was not a Brady violation), and petitioners

have made no claim that they could not secure W-10’s testimony for

trial, Pet. App. 25a.

3

16

to the benefit of the Brady doctrine.”) (citation and internal quotation marks omitted); United States v. Infante, 404 F.3d 376, 387 (5th Cir. 2005) (no suppression

where psychiatric records of government’s “star witness” were contained in public file and witness’s charges were “closely related to the conspiracy with which

the defendant is charged”); Ellsworth v. Warden,

333 F.3d 1, 6 (1st Cir. 2003) (en banc) (“[E]vidence is not

suppressed if the defendant either knew or should have

known of the essential facts permitting him to take advantage of any exculpatory evidence.”) (quoting United

States v. LeRoy, 687 F.2d 610, 618 (2d Cir. 1982), cert.

denied, 459 U.S. 1174 (1983)); United States v. Zuazo,

243 F.3d 428, 431 (8th Cir. 2001) (“The government does

not suppress evidence in violation of Brady by failing to

disclose evidence to which the defendant had access

through other channels.”); Commonwealth v. Paddy,

15 A.3d 431, 451 (Pa. 2011); State v. Kardor, 867 N.W.2d

686, 688 (N.D. 2015); see also, e.g., Yates Pet. 7-9 (citing

additional cases).

Petitioners contend (Yates Pet. 9-15; Walker Pet. 1213) that those decisions conflict with decisions from

other federal and state courts holding that there is no

due-diligence requirement for a Brady claim. Any conflict, however, is not implicated by the court of appeals’

decision in this case. Although the court of appeals in

this case stated that “the government is not obliged under Brady to furnish a defendant with information

which he already has or, with any reasonable diligence,

he can obtain himself,” Pet. App. 25a (citation omitted),

its decision rested on the narrower determination that

no Brady violation occurred where Yates “d[id] not

claim to have been unaware” of the contested infor-

17

mation, “nor does he claim to have been unable to secure” pertinent evidence regarding the information for

trial. Ibid. The decisions cited by petitioners do not

squarely hold otherwise, and the court of appeals’ narrow ruling makes this case an inappropriate vehicle for

considering any disagreement on the broader question.

b. Petitioners’ reliance (Yates Pet. 9; Walker Pet.

13) on the Tenth Circuit’s decision in Banks v. Reynolds, 54 F.3d 1508 (1995), is misplaced. Although the

Tenth Circuit stated in Banks that “the fact that defense counsel ‘knew or should have known’ about [exculpatory] information, therefore, is irrelevant to whether

the prosecution had an obligation to disclose,” id. at

1517, in that case the defendant knew only that two

other suspects had been arrested for the crime; the

prosecution failed to disclose not only that already

known fact, but also eyewitness accounts placing those

suspects at the scene, a report that one of the suspects

had confessed to the crime, and potentially exculpatory

information from their criminal histories. Id. at 15101511. Petitioners have not cited a case in which the

Tenth Circuit has identified a Brady violation where, as

here, the defendant did not claim he was unaware of the

exculpatory information.

Indeed, in another case cited by Yates (Pet. 9), the

Tenth Circuit has recognized that “a defendant’s independent awareness of the exculpatory evidence is critical in determining whether a Brady violation has occurred” because that awareness renders the nondisclosed evidence “immaterial.” United States v. Quintanilla, 193 F.3d 1139, 1149 (1999), cert. denied, 529 U.S.

1029 (2000); see also Banks, 54 F.3d at 1517 (explaining

that whether the defendant “ ‘knew or should have

known’ ” of exculpatory information “will bear on whether

18

there has been a Brady violation”). And in another case,

the Tenth Circuit held that the government has no obligation under Brady to produce exculpatory evidence

“[i]f the means of obtaining the * * * evidence has been

provided to the defense.” United States v. Wolf,

839 F.2d 1387, 1391, cert. denied, 488 U.S. 923 (1988).

Accordingly, a defendant’s knowledge of the exculpatory

information is relevant in the Tenth Circuit, even if it is

sometimes considered only in the materiality element.

Petitioners have not demonstrated that such a distinction would result in a different outcome in this case.

c. Petitioners also err in their reliance on cases from

the Ninth Circuit. See Yates Pet. 10; Walker Pet. 1112. Unlike this case, Amado v. Gonzalez, 758 F.3d 1119

(9th Cir. 2014), involved information that the defense

did not know prior to the government’s disclosure of it.

Id. at 1128. And the court acknowledged in that case

that “defense counsel cannot lay a trap for prosecutors

by failing to use evidence of which defense counsel is

reasonably aware for, in such a case, the jury’s verdict

of guilty may be said to arise from defense counsel’s

stratagem, not the prosecution’s failure to disclose.” Id.

at 1135.

The Ninth Circuit’s decision in United States v.

Howell, 231 F.3d 615 (2000), cert. denied, 534 U.S. 831

(2001), likewise presented different circumstances from

this one. See Yates Pet. 9-10; Walker Pet. 8. In that

case, the government gave the defense two police reports containing material errors that misidentified the

codefendant as carrying contraband at the time of arrest, when the contraband was in fact found on the defendant. Howell, 231 F.3d at 623. The prosecutor

learned of the material errors in the reports before

trial, yet failed to disclose them to the defense, which

19

then crafted its trial strategy around the erroneous police reports, only to discover mid-trial that the government disavowed their accuracy. Id. at 623-624. The

court of appeals rejected the government’s argument

that the prosecutors had no duty to disclose the mistakes because the defendant knew “the truth” and

therefore knew that the reports were “wrong.” Id. at

625. Unlike in Howell, however, this case does not involve “the government’s duty to disclose evidence of a

flawed police investigation,” ibid., which was a driving

force of the decision in Howell. In other cases, the

Ninth Circuit has found no Brady violation when the defendant “had all the ‘salient facts regarding the existence of the [evidence] that he claims [was] withheld.’ ”

Rhoades v. Henry, 596 F.3d 1170, 1181 (2010) (quoting

Raley v. Ylst, 470 F.3d 792, 804 (9th Cir. 2006), cert. denied, 552 U.S. 833 (2007)) (brackets in original); see

Cunningham v. Wong, 704 F.3d 1143, 1155 (9th Cir.)

(same), cert. denied, 571 U.S. 867 (2013); United States

v. Bond, 552 F.3d 1092, 1095 (9th Cir. 2009) (“[W]here

the defendant has enough information to be able to ascertain the supposed Brady material on his own, there

is no suppression.”) (citation and internal quotation

marks omitted).

d. The cases petitioners cite (Yates Pet. 10-13;

Walker Pet. 11-12) from the Second, Third, Sixth, and

D.C. Circuits likewise do not squarely conflict with the

decision below. Unlike this case, they do not involve information that was within defendant’s knowledge.

In Lewis v. Connecticut Commissioner of Corrections, 790 F.3d 109 (2d Cir. 2015) (cited at Yates Pet.

11), it was not until after the defendant’s trial that the

defense learned, from a retired police officer who had

20

assisted in the defendant’s arrest, that the state prosecutor failed to disclose that its prime witness “repeatedly denied having any knowledge of the murders and

only implicated [the defendant] after a police detective

promised to let [the witness] go if he gave a statement

in which he admitted to being the getaway driver and

incriminated [the defendant] and another individual.”

Id. at 113; see id. at 113-115. In reviewing the defendant’s habeas petition, the Second Circuit recognized

that “[e]vidence is not ‘suppressed’ [for Brady purposes] if the defendant either knew, or should have

known, of the essential facts permitting him to take advantage of any exculpatory evidence.” Id. at 121 (citation omitted; brackets in original). Although the Second

Circuit declined to apply a due-diligence requirement

where a defendant “was reasonably unaware of exculpatory information,” ibid., it did not relieve a defendant

of a due-diligence obligation with respect to interviewing an individual whom the defendant knew had witnessed an exculpatory incident, which it viewed as

“facts already within the defendant’s purview,” ibid.;

see United States v. Diaz, 922 F.2d 998, 1007 (2d Cir.

1990) (“[T]here is no improper suppression within the

meaning of Brady where the facts are already known by

the defendant.”), cert. denied, 500 U.S. 925 (1991); see

also Paulino, 445 F.3d at 224-225; United States v. Robinson, 560 F.2d 507, 518 (2d Cir. 1977) (en banc), cert.

denied, 435 U.S. 905 (1978). Because petitioners here

were aware that W-10 witnessed the alleged conversation, they would not prevail under that approach.

Dennis v. Secretary, 834 F.3d 263 (3d Cir. 2016) (en

banc) (cited at Yates Pet. 10; Walker Pet. 11-12), involved the government’s failure to disclose a time-

21

stamped receipt that would have supported the defendant’s alibi defense, the existence of which defendant was

unaware at the time of trial and which was not “publicly

available.” Id. at 275-276, 288-290. Accordingly, that

case does not conflict with the ruling here, which involved information of which petitioners were aware.

Furthermore, in finding a Brady violation on those

facts, the Third Circuit construed a prior decision,

which it reaffirmed, that had “reject[ed] defendant’s argument that certain documents were * * * somehow

‘suppressed’ when the government had made the materials available for inspection and they were defendant’s

own documents.” Id. at 292-293 (citing United States v.

Pelullo, 399 F.3d 197, 212 (3d Cir. 2005) (emphasis

added), cert. denied, 546 U.S. 1137 (2006)).

In United States v. Tavera, 719 F.3d 705, 711-712

(6th Cir. 2013) (cited at Yates Pet. 11; Walker Pet. 12),

and In re Sealed Case No. 99-3096 (Brady Obligations),

185 F.3d 887, 892-893, 896-897 (D.C. Cir. 1999) (cited at

Yates Pet. 12-13), the courts of appeals reasoned that

the due-diligence rule did not require the defense to attempt to interview trial witnesses to discover exculpatory information that was provided to police or prosecutors. In re Sealed Case additionally reasoned that the

due-diligence rule did not require a defendant to subpoena police officers to learn whether they had negotiated cooperation agreements with witnesses. Id. at 897.

Neither case held that the government suppresses evidence under Brady when it does not provide information that the defendant already knows or could reasonably obtain. To the contrary, the court in Tavera

noted that the facts of that case involved “information

known to investigating officers that defendants had no

reason to know about,” contrasting it with a prior case

22

in which the circuit had held that Brady did not apply

to publicly available sentencing records. Tavera,

719 F.3d at 712 n.4 (quoting Bell v. Bell, 512 F.3d 223,

235 (6th Cir.) (en banc), cert. denied, 555 U.S. 822 (2008)).

e. The state cases on which petitioners rely (Yates

Pet. 13-14; Walker Pet. 12-13) likewise do not create a

conflict warranting this Court’s review. In People v.

Chenault, 845 N.W.2d 731 (Mich. 2014), the prosecution

failed to disclose videotaped witness interviews that

were arguably inconsistent with the witnesses’ written

statements; the defendant did not know the contents of

the recorded interviews. Id. at 734. Unlike in this case,

the prosecution in Chenault conceded that it had suppressed the videotaped witness interviews. Id. at 739 &

n.8. The Michigan Supreme Court declined to adopt “a

rule requiring a defendant to show that counsel performed an adequate investigation in discovering the alleged Brady material,” but made clear that “evidence

that the defense knew of favorable evidence, will reduce

the likelihood that the defendant can establish that the

evidence was suppressed for purposes of a Brady

claim,” id. at 738. That approach is consistent with the

result and reasoning in petitioners’ case.

The other state cases cited by Yates (Pet. 13-14) are

inapposite because they do not involve circumstances

where defendant was aware of the information that the

government failed to disclose. See, e.g., State v. Ilk, 422

P.3d 1219, 1227 (Mont. 2018) (court assumed defendant

was “unaware” that the crime scene photos the prosecution failed to disclose “existed”); State v. Reinert,

419 P.3d 662, 666 (Mont. 2018) (failure to disclose state

medical examiner’s letter questioning credentials of

state’s forensic expert); People v. Bueno, 409 P.3d 320,

23

322-323, 327-329 (Colo. 2018) (en banc) (failure to disclose investigative reports detailing evidence of threats

against inmates that would have supported defendant’s

“alternate-suspect” defense evidence; court concluded

the evidence was unknown to the defense and had been

suppressed “even if [it] were to apply a reasonable diligence requirement”); Tempest v. State, 141 A.3d 677,

685-686 (R.I. 2016) (failure to disclose witness’s inconsistent statements to prosecutor that could have been

used for impeachment). 4

4. In any event, this case would not be a suitable vehicle in which to review the question presented because,

even if petitioners were to prevail on their claim in this

Court, (i) the outcome of their cases would not be different in light of their inability to satisfy Brady’s materiality prong, and (ii) petitioners’ overall sentences would

be unaffected because petitioners were sentenced to

longer concurrent sentences for other convictions that

are not called into doubt by the Brady issue raised in

the petition.

a. Although the court of appeals found it unnecessary to address Brady’s materiality prong in light of its

determination that the information about W-10 was not

suppressed, Pet. App. 25a, the district court was “absolutely convinced” that no reasonable probability existed

Although Yates cites Archer v. State, 934 So. 2d 1187 (Fla. 2006)

(per curiam), in support of his argument that Florida does not require a demonstration of due diligence for a Brady claim (see Yates

Pet. 14), he acknowledges that other Florida cases are to the contrary, see, e.g., Bogle v. State, 213 So. 3d 833 (Fla. 2017) (per curiam), cert. denied, 138 S. Ct. 738 (2018), and that, regardless, Florida has agreed with the court of appeals here that “a defendant’s

actual knowledge or possession of evidence can defeat a Brady

claim,” Yates Pet. 15 n.4 (citing Occhione v. State, 768 So. 2d 1037,

1042 (Fla. 2000) (per curiam)).

4

24

that disclosure of W-10’s grand jury testimony would

have affected the outcome of the trial, see id. at 24a-25a;

id. at 62a. That determination was correct.

The accessory-after-the-fact charges were primarily

based on petitioners’ actions in helping Carraway escape to North Carolina a few days after the murder,

around September 29, 2010. Pet. App. 7a-9a. As the

district court found, statements made by Yates roughly

two weeks thereafter, urging Carraway to turn himself

in, would not have materially altered the jury’s understanding of petitioners’ state of mind at the pertinent

time. See id. at 60a. That finding is even stronger with

respect to Walker, who did not make the statements

urging Carraway to turn himself in and, moreover,

urged Carraway to alter his appearance in the immediate aftermath of the shooting, and helped him to do so,

in addition to helping him abscond to North Carolina.

Id. at 7a-9a. Accordingly, because the outcome of petitioners’ case would not be affected by the Court’s resolution of the issue on which they seek certiorari, further

review is not warranted.

b. Furthermore, the undisclosed information about

W-10’s grand jury testimony relates only to petitioners’

convictions for being accessories after the fact to murder, for which Yates received a sentence of 12 years of

imprisonment and Walker received a sentence of 30

years of imprisonment. Gov’t C.A. Br. 2-3. But in addition to those sentences, Yates received a concurrent

sentence of 24 years of imprisonment for second-degree

murder while armed, and Walker received a concurrent

sentence of, inter alia, 40 years of imprisonment for

first-degree murder while armed. Ibid. Because petitioners received concurrent sentences on other counts

25

that are longer than their sentences for being accessories after the fact to murder, a decision in their favor on

the question presented would have no practical effect on

the length of their prison sentences. The decision below

accordingly does not warrant this Court’s review, and

the petition for a writ of certiorari should be denied.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

NOEL J. FRANCISCO

Solicitor General

BRIAN A. BENCZKOWSKI

Assistant Attorney General

SANGITA K. RAO

Attorney

JANUARY 2019