Petition for Writ of Certiorari — Rebecca Stampe, Petitioner v. United States

Supreme Court briefNov 19, 2021

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NO.

____________

IN THE UNITED STATES SUPREME COURT

______________________________________________________________________

REBECCA STAMPE,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

______________________________________________________________________

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

__________________________________________________________

Erin P. Rust

Assistant Federal Defender

FEDERAL DEFENDER SERVICES

OF EASTERN TENNESSEE, INC.

835 Georgia Avenue, Suite 600

Chattanooga, Tennessee 37402

(423) 756-4349

Attorney for Ms. Rebecca Stampe

QUESTIONS PRESENTED FOR REVIEW

When the government refuses to disclose material to a defendant after that defendant

makes a specific request for its production, in camera review by the district court is

appropriate if the defendant can make a plausible showing that the withheld evidence is

material to his defense or punishment. Pennsylvania v. Ritchie, 480 U.S. 39, 58-59 n.15

(1987). This requirement of in camera review to resolve legitimate doubt about the existence

of undisclosed Brady material exists to “balance[] the defendant’s important need for access

to potentially relevant material with the government’s valid interest in protecting

confidential files and the integrity of pending investigations.” United States v. Jumah, 599

F.3d 799, 810 (7th Cir. 2010); Ritchie, 480 U.S. at 60.

Here, in conflict with its sister circuits the United States Court of Appeal for the Sixth

Circuit held that even if a defendant makes a “plausible showing” as required under

Pennsylvania v. Ritchie, the government can nonetheless avoid in camera review by

asserting its belief that the requested evidence is immaterial, and thus not subject to

disclosure.

The question presented here is:

Can the district court, consistent with Brady and its progeny, refuse in camera review

of evidence that is plausibly subject to disclosure under Brady based only on the

government’s assertion that it believes the evidence is immaterial?

PARTIES TO THE PROCEEDINGS

All parties appear in the caption of the case on the cover page.

RELATED CASES

There are no related cases.

All relevant opinions below are included in the Appendix filed herewith.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ........................................................................... ii

PARTIES TO THE PROCEEDINGS ................................................................................... iii

RELATED CASES................................................................................................................ iii

TABLE OF CONTENTS .......................................................................................................iv

TABLE OF AUTHORITIES ................................................................................................... v

OPINIONS BELOW ............................................................................................................... 1

JURISDICTIONAL STATEMENT ........................................................................................ 2

PRAYER FOR RELIEF……………………………………………………………………...3

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED .............................. 3

STATEMENT OF THE CASE AND FACTS ...................................................................... 4

REASONS FOR GRANTING OF THE WRIT .................................................................... 8

ARGUMENT…………………………………...…………………………….……………..14

When a defendant has made a plausible showing that specifically requested

evidence should be disclosed under Brady a district court violates due process

when it nonetheless refuses in camera review based only on the government’s

asserted belief that the evidence is immaterial.…………………………………….14

CONCLUSION .................................................................................................................... 19

TABLE OF AUTHORITIES

Page

Federal Court Cases:

Alderman v. United States, 394 U.S. 165 (1969)……………………………….………………..17-18

Anderson v. United States, 788 F.2d 517 (8th Cir. 1986)…………………………………………9, 15

Brady v. Maryland, 373 U.S. 83 (1963)………………………………………..……………….passim

Campbell v. Marshall, 769 F.2d 314 (6th Cir. 1985)………………………….…………………….14

Kyles v. Whitley, 514 U.S. 419 (1995)……………………………………………...………………..16

Pennsylvania v. Ritchie, 480 U.S. 39 (1987)……………………………………………………passim

United States v. Allen, 798 F.2d 985 (7th Cir. 1986)……………………….……………..9-10, 12, 15

United States v. Bagley, 473 U.S. 667 (1985)………………………………………….…………8, 14

United States v. Brown, 574 F.2d 1274 (5th Cir. 1978)……………………………….………….9, 15

United States v. Carmichael, 232 F.3d 510 (6th Cir. 2000)………………………………………….11

United States v. Griggs, 713 F.2d 672 (11th Cir. 1983)…………………………….…………….9, 15

United States v. Hernandez, 31 F.3d 354 (6th Cir. 1944)……………………..………………6, 10-11

United States v. Keig, 320 F.2d 634 (7th Cir. 1963)………………………………….……………..12

United States v. Kiszewski, 877 F.2d 210 (2nd Cir. 1989)…………………………………..8-9, 14-15

United States v. Jumah, 599 F.3d 799 (7th Cir. 2010)………………………………………….…….ii

United States v. Navarro, 773 F.2d 625 (7th Cir. 1984)………………………………………9, 12, 15

United States v. Phillips, 854 F.2d 273 (7th Cir. 1988)……………………………...…………..11, 12

United States v. Shabani, 513 U.S. 10 (1994)………………………………………………………..15

United States v. Valenzuela-Bernal, 458 U.S. 858 (1982)……………………………….……………8

Walker v. Lockhart, 763 F.2d 942 (8th Cir. 1985)………………………………….………………..15

Statutes:

21 U.S.C. § 841(a)(1)…………………………………………………………………………………2

21 U.S.C. § 841(b)(1)(A)……………………………………………………………………………..2

21 U.S.C. § 846……………………………………………………………...……………………2, 15

28 U.S.C. § 1254(1)…………………………………………………………………………………..2

Rules:

Rules of the Supreme Court, 29.4(a)…………………………………..……………………..2

OPINIONS BELOW

United States v. Stampe, Opinion, No. 19-6293, App. R. 54-2

(6th Cir. April 20, 2021)……………………………………………..……Appx. 2-11

United States v. Stampe, Judgment, 1:18-cr-16, R. 106,

(E.D. Tenn. Nov. 5, 2019)………………………………………….…....Appx. 12-18

JURISDICTIONAL STATEMENT

Rebecca Stampe pled guilty to conspiracy to distribute 500 grams or more of a

methamphetamine mixture under 21 U.S.C. § 846, 841(a)(1) and 841(b)(1)(A). She was

sentenced by the District Court for the Eastern District of Tennessee on November 5, 2019.

She appealed her sentence to the United States Court of Appeals for the Sixth Circuit, which

affirmed the sentence on April 20, 2021.

Stampe filed a timely petition seeking en banc

rehearing, which was denied on June 22, 2021.

This Court's jurisdiction is invoked under Title 28, United States Code, Section

1254(1).

Pursuant to Rule 13 of the Supreme Court and this Court’s March 19, 2020

COVID-19 Order, and the Court’s July 19, 2021 COVID-19 Order, the time for filing a

petition for certiorari review is 150 days from the order denying the petition for rehearing.

Accordingly, this petition is timely filed.

Pursuant to Rule 29.4(a), appropriate service is made to the Solicitor General of the

United States and to Assistant United States Attorney Jay Woods, who appeared in the

United States Court of Appeals for the Sixth Circuit on behalf of the United States Attorney’s

Office, a federal office which is authorized by law to appear before this Court on its own

behalf.

PRAYER FOR RELIEF

Petitioner, Ms. Rebecca Stampe, respectfully prays that a writ of certiorari issue to

review the order of the United States Court of Appeals for the Sixth Circuit.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment due process clause of the United States Constitution provides,

“[n]o person shall . . . be deprived of life, liberty, or property, without due process of law.”

STATEMENT OF THE CASE AND FACTS

Rebecca Stampe was changed along with her codefendant Michael Loden with

conspiracy to distribute at least 500 grams of methamphetamine.

Pet. App. at 2.

The

indictment alleged a conspiracy running from January 1, 2017 through on or about January

20, 2018.

(Superseding Indictment, R. 14, PageID #44.)

Stampe was arrested on

November 15, 2017, eight months into the conspiracy, after law enforcement executed a

search warrant at her home based on information from both a “reliable source” and a

“confidential informant.”

(Revised Presentence Investigation Report (“PSR”), R. 60, Page

ID# 237-39.)

After her arrest Stampe provided law enforcement information about Loden, which,

along with Stampe’s name was used in a search warrant leading to Loden’s arrest.

App. at 3.

Pet.

That search warrant also stated that Loden had pending felony

methamphetamine charges from an arrest that occurred around March 13, 2017.

Search Warrant, R. 100 (sealed), Page ID# 378.)

(Loden

It also explained that that a confidential

informant had made three audio recorded controlled buys from Loden between December

and January 16, 2018.

(Id.)

It is unknown whether the confidential informant that gave

information in support of the warrant for Stampe’s home is the same confidential informant

noted in Loden’s warrant.

While Loden proceeded to trial, Stampe signed a cooperation plea agreement

whereby she agreed to testify against him.

Pet. App. at 2-3.

On the eve of trial, however,

the government dismissed all the charges against Loden—including the identical conspiracy

charge pending against Stampe—after “discover[ing] circumstances apart from evidence of

. . . guilt which prevent[ed] . . . moving forward.”

omitted).

Id. at 3 (alterations in original) (citation

The government declined to share these circumstances with Stampe, stating that

the evidence at issue related to inappropriate conduct by a confidential informant that the

government did not view as affecting the case against her, even though her charges also

stemmed from information from a confidential informant, and even though both her and

Loden were charged with a conspiracy that stretched back to January of 2017.

Id.

Ms.

Stampe then sought direct production or in camera review of the tainted evidence that caused

the government to dismiss the entire conspiracy against Loden.

Id. at 3.

The government responded, claiming that the requested evidence was not relevant to

Stampe because “the issues in Loden’s case occurred while Stampe was in custody.” Pet.

App. at 4.

But, the government never explained why issues occurring after November 15,

2017 (when Stampe was arrested) required dismissal of a conspiracy count stretching back

to January of 2017 against Loden, but not Stampe, particularly where Stampe was prepared

to testify as to Loden’s drug activity prior to her arrest and where Loden had been arrested

for felony methamphetamine charges in March of 2017. Pet. App., generally; (see also

Gov’t Resp. to Compel Mot., R. 86, Page ID# 318-19.)

The district court denied her motion.

Pet. App. at 4-6.

In denying the motion for

in camera review it characterized Stampe’s argument that the tainted evidence might be

material to her as “pure speculation,” because the government had asserted that it fully

complied with its obligations under Brady, Giglio, Federal Rule of Criminal Procedure 16

and the Jenks Act.

Id. at 4-5.

It reached this conclusion despite stating that “it did not

‘fully understand what the government[]’ was saying ‘when it sa[id], well, [the tainted

evidence] couldn’t affect Ms. Stampe because she was in custody.’” Id. at 4 (first two

alterations in original).)

On appeal Stampe reasserted her argument that the district court abused its discretion

by accepting the government’s un-checked materiality assertion as the sole basis for denying

in camera review.

Id. at 5-8.

The Sixth Circuit denied her appeal.

Id. at 7.

With

respect to whether Stampe made a plausible showing that the tainted evidence could require

disclosure under Brady or Rule 16, it explained that “it is not immediately clear that the

district court’s characterization [that Stampe presented only “pure speculation”] was

accurate.”

Id.

It explained that “[t]his is not a case in which the defendant fired blindly

into the prosecutions papers alleging materiality.

degree informed.”

Her speculation was at least to a certain

Id.

But, it determined that the resolution of this question was unnecessary, because even

if she had made a plausible showing of materiality, the government could nonetheless avoid

in camera review by asserting that the tainted evidence was immaterial.

Pet. App. at 7-8.

It explained that “[i]n Hernandez, this court gave the government a powerful tool to avoid

criminal discovery requests.” Id. at 7 (citing United States v. Hernandez, 31 F.3d 354, 361

(6th Cir. 1944)).

Thus, “because a ‘prosecuting attorney is an officer of the court,’ a district

‘court is entitled to accept his representations’ about whether a specifically requested item

is material ‘absent some indication of misconduct.’” Id. at 7-8 (quoting Hernandez, 31

F.3d at 361).

Thus, even assuming that Stampe had made the requisite showing under

Pennsylvania v. Ritchie, 480 U.S. 39 (1987), to trigger in camera review, the government

could avoid that review by merely asserting its belief that the requested evidence was

immaterial.

Id. at 7-8.

REASONS FOR GRANTING OF THE WRIT

A circuit split has developed regarding the district court’s duty to review potential

Brady material in camera when a defendant has made a plausible showing that the requested

evidence is material to either guilt or punishment.

In Brady v. Maryland, the 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, irrespective of the good faith or bad faith of the

prosecution.

373 U.S. 83, 87 (1963).

And in Pennsylvania v. Ritchie the Court explained

that “[a] defendant’s right to discover exculpatory evidence [under Brady] does not include

the unsupervised authority to search through the [state’s] files,” nor can a defendant “require

the trial court to search through the [requested evidence] without first establishing a basis

for his claim that it contains material evidence.” 480 U.S. at 59 (citing United States v.

Bagley, 473 U.S. 667, 675 (1985)); id. at 58 n.15 (citing United States v. Valenzuela-Bernal,

458 U.S. 858, 867 (1982)).

But, when a defendant establishes a basis for his claim by

making “some plausible showing” that the requested evidence is disclosable under Brady, in

camera review is required. Ritchie, 480 U.S. at 58 n.15 (quoting Valenzuela-Bernal, 458

U.S. at 867).

The Second, Fifth, Eight and Eleventh Circuits have held that when a defendant

makes a plausible showing that specifically requested evidence could require disclosure

under Brady, the district court must review that evidence in camera.

United States v.

Kiszewski, 877 F.2d 210, 215-16 (2nd Cir. 1989) (under Brady and its progeny, “it was error

for the district court to refuse to compel production of [a law enforcement witness’s]

personnel file for in camera inspection based solely on the representations of the

government”); United States v. Brown, 574 F.2d 1274, 1278 (5th Cir. 1978) (remand

required for in camera review of specifically requested evidence that may have been material

because absent in camera review “there was no way that [the trial judge] could determine

whether [the requested evidence] contained exculpatory evidence that was material to guilt

or to punishment in a way that might have affected the outcome”); Anderson v. United States,

788 F.2d 517, 518-19 (8th Cir. 1986) (pursuant to Brady and Jencks, district court was

required to review in camera government recordings of a witness’s statements despite the

government’s assertion that the tapes were voluminous and unrelated to Anderson); United

States v. Griggs, 713 F.2d 672, 674 (11th Cir. 1983) (remand required for in camera review

of evidence that may have been material under Brady).

The Second and Eight Circuits have specifically held that when the defendant makes

a sufficient showing that evidence could be Brady material, the district court cannot refuse

in camera review based on the government’s representations that the material is nondisclosable.

Kiszewski, 877 F.2d at 215-16; Anderson, 788 F.2d at 518-19 (requiring in

camera review of material that could be disclosable under Brady or Jencks).

And, the

Seventh Circuit’s precedent appears to be aligned with these Circuits. Compare United

States v. Navarro, 773 F.2d 625, 631 (7th Cir. 1984) (in camera review not required where

defendant requested a government file but gave “no indication of the existence of [Brady]

material” and the government asserted it had turned over all the required material), with

United States v. Allen, 798 F.2d 985, 995 (7th Cir. 1986) (addressing a request for Jencks

material, which it explained was distinguishable from the Navarro case’s assessment of

Brady material because “[w]hile the district court may be able, as in Navarro, to rely on a

government assertion that a requested document does not exist, the court cannot rely on a

government assertion that a document does not ‘relate to’ the subject matter of the witness's

testimony and should not rely on an assertion that the document does not fit the statutory

definition of ‘statement.’”) This suggests that in the Seventh Circuit, where a defendant

makes a plausible showing that specific material could require disclosure under Brady, that

the district court cannot deny in camera review based on the government’s assertion that the

material need not be disclosed.

By contrast, the Sixth Circuit holds that even assuming a defendant makes a plausible

showing that specifically requested material requires disclosure under Brady; the

government can avoid in camera review by asserting that the evidence is immaterial.

Pet.

App. at 7 (“[e]ven assuming Stampe said enough to trigger Rule 16 or Brady disclosure [by

making a plausible showing that the specifically requested evidence contained Rule 16 or

Brady material]” “her arguments here ultimately fail because of the [district] court’s second

move—relying on the government’s representations”).

In reaching this conclusion, the

Sixth Circuit relied upon United States v. Hernandez, which it describes as a case that “gave

the government a powerful tool to avoid criminal discovery requests.” Pet. App. at 7 (citing

31 F.3d 354 (6th Cir. 1994)).

In Hernandez the Sixth Circuit held that “because a

‘prosecuting attorney is an officer of the court,’ a district ‘court is entitled to accept his

representations’ about whether a specifically requested item is material ‘absent some

indication of misconduct.’” Pet. App. at 7-8 (quoting Hernandez, 31 F.3d at 361).

Even judges within the Sixth Circuit differ in their views as to the legitimacy of

Hernandez.

In United States v. Carmichael, the court found itself bound by Hernandez to

find that the district court did not abuse its discretion when it refused in camera review of

specifically requested wiretapped conversations which the defendant argued could contain

Brady material, because the government “represented unambiguously that all material that

was then in its possession that might have been used to impeach Adams was disclosed.”

232 F.3d 510, 510 (6th Cir. 2000).

But in doing so the panel explained that it “ha[s] serious

misgivings about the breadth of the rule announced in Hernandez.” Id.

“After all, it is

difficult to conscientiously conclude that the government has met its obligations

under Brady without seeing the materials that the government concededly did not disclose.”

Id.

The instant case deepens this circuit conflict by expanding the reach of Hernandez

to expressly apply even assuming a defendant has made a plausible showing that the

specifically requested material should be disclosed under Brady.

That holding conflicts

with the Second, Fifth, Eight and Eleventh Circuits, and undermines the reasoning of the

Court in Pennsylvania v. Ritchie.

480 U.S. at 60 (“We find that Ritchie’s interest (as well

as that of the Commonwealth) in ensuring a fair trial can be protected fully by requiring that

the [requested] files be submitted only to the trial court for in camera review.”

In camera review of disputed material is the recognized way “of balancing the due

process rights of the defendant and the privacy interests of the government and its

witnesses.”

United States v. Phillips, 854 F.2d 273, 278 (7th Cir. 1988).

preserves the role of the court as the final arbiter over the parties’ disputes.

It also

When

addressing requests for material under the Jencks Act, the Seventh Circuit explained that

“[o]nce the question has [adequately] been raised by defense counsel, the court should

dispose of it on its own responsibility based upon what it ascertains in [an in camera]

hearing.” Allen, 798 F.2d at 995 (quoting United States v. Keig, 320 F.2d 634, 637 (7th

Cir. 1963)).

“The court should not make a final disposition upon the representation of

government counsel.

It cannot escape its duty to learn the truth firsthand.” Allen, 798

F.2d at 995 (quoting Keig, 320 F.2d at 637).

Indeed, “[i]n camera inspection of disputed

materials likewise allows the court to engage in a more delicate balancing of the competing

interests than does a decision to decide a discovery issue based on the representations of the

parties alone.” Phillips, 854 F.2d at 278 (citing Navarrro, 737 F.2d at 631).

And, “in

camera inspection provides the additional advantage of including the disputed materials

(sealed, of course) in the record, facilitating our review on appeal.” Phillips, 854 F.2d at

278 (citing Navarro, 737 F.2d at 631).

This circuit split reaches fundamental aspects of a criminal defendant’s due process

right to a fair trial as well as the proper role of the district court in protecting those rights

while balancing them against the government’s interests.

The Sixth Circuit’s approach not

only results in inconsistent enforcement of Brady based purely on the location in which one

is charged with a federal crime, but it also narrows the reach of the Court’s Pennsylvanian

v. Ritchie case, thereby unfairly narrowing a defendant’s ability to enforce his due process

rights.

This is an issue that warrants the attention of the Court.

This case presents a good vehicle to address this split, as the instant case rests on a

legal conclusion whereby the Sixth Circuit expressly held that even if a defendant makes a

plausible showing that specifically requested material could be subject to disclosure under

Brady, the government can still avoid in camera review (and thereby disclosure to the

defendant) by merely asserting that the evidence is immaterial.

This case presents the

Court with the ability to settle the divergent conclusions of the United States Courts of

Appeals and address the Sixth Circuit’s overstep.

ARGUMENT

When a defendant has made a plausible showing that specifically requested evidence

should be disclosed under Brady a district court violates due process when it

nonetheless refuses in camera review based only on the government’s asserted belief

that the evidence is immaterial.

Due process requires the government to disclose favorable evidence to an accused

upon request when the evidence is material to either guilt or punishment. Brady, 373 U.S.

at 87.

This duty extends beyond a finding of guilt by trial or plea and applies “irrespective

of the good faith or bad faith of the prosecution.”

314, 321 (6th Cir. 1985).

Id.; see Campbell v. Marshall, 769 F.2d

Evidence is material “if there is a reasonable probability that, had

the evidence been disclosed to the defense, the result of the proceeding [whether it be part

of the guilt phase or punishment phase] would have been different.”

Bagley, 473 U.S. 667 (1985).

United States v.

And, when a defendant “establishes a basis for his claim that

[requested evidence] contains material evidence” the district court should review that

requested evidence in camera.

Ritchie, 480 U.S. at 58-59 n.15.

All that is required is

“some plausible showing” that the requested material is subject to disclosure under Brady.

Id.

The Sixth Circuit erred by limiting a defendant’s access to potential Brady material

by allowing district court to blindly rely upon the government’s assertion that it believes the

requested evidence is not material—even where a defendant has made “some plausible

showing” as required by Pennsylvania v. Ritchie.

This undermines Ritchie and conflicts

with the Second, Fifth, Eight, Eleventh and Seventh circuits.

Kiszewski, 877 F.2d at 215-

16 (2nd Cir.) (under Brady and its progeny, “it was error for the district court to refuse to

compel production of [a law enforcement witness’s] personnel file for in camera inspection

based solely on the representations of the government”); see also Brown, 574 F.2d at 1278

(5th Cir.); Anderson, 788 F.2d at 518-19 (8th Cir.); Griggs, 713 F.2d at 674 (11th Cir.); and

compare Navarro, 773 F.2d at 631 (7th Cir.) with Allen, 798 F.2d at 995 (7th Cir.). The

Sixth Circuit’s conclusion also fails to account for the fact that prosecuting attorneys are

people too, who sometimes make mistakes, misinterpret the law, or simply overlook things.

Brady applies “irrespective of the good faith or bad faith of the prosecution.” Brady, 373

U.S. at 87; accord Walker v. Lockhart, 763 F.2d 942, 958 (8th Cir. 1985) (“[i]t is irrelevant

whether the State acted in good faith or bad faith in failing to disclose the evidence”).

Indeed, the need for judicial review when a defendant has made a plausible showing

that requested evidence contains Brady material is particularly poignant here.

First, even

the district court had misgivings about the government’s statement that the tainted evidence

required the dismissal—but only as to Loden—of a conspiracy that ran from January of 2017

through January of 2018 because the problematic evidence occurred while Stampe was in

custody.

If problematic evidence occurring after November 15, 2017 required dismissal of

charges based on conducted that predated November 15th, how can that taint not apply

equally to both defendants?

Particularly where the charge is a conspiracy to distribute

drugs, which requires no overt act by any member, requiring only an agreement to illegally

distribute drugs. United States v. Shabani, 513 U.S. 10, 17 (1994) (“[p]roof of an overt act

is not required to establish a violation of 21 U.S.C § 846”). As a conspiracy change, it is

not as if one bad controlled buy could undermine the entire conspiracy charge (but only for

one codefendant), especially given that other independent evidence indicates both Stampe

and Loden were working in concert prior to November 15, 2017. It is hard to imagine how

Loden be differently situated from Stampe where there is independent evidence that both

participated in the conspiracy prior to November of 2017.

Stampe could plausibly have relied upon the same tainted evidence to move to

withdraw her guilty plea or move to dismiss the indictment.

Moreover, even if the evidence

related only to the scope of the conspiracy after Stampe was in custody, it could still provide

reason to reduce or mitigate her punishment.

The district court violated due process by

refusing in camera review, despite its misgivings, based only on the government’s assertion

that it believed the evidence was immaterial.

And, that violation was repeated by the Sixth

Circuit’s affirmance here—where it expressly assumed that Stampe had made the requisite

plausible showing of materiality, yet held that in camera review was not required.

Second, there is reason to believe that in this very case the government’s belief that

the evidence was immaterial was mistaken.

At oral argument before the Sixth Circuit it

first misstated the scope of Brady’s materiality requirement.

(TR. Oral Argument, App. R.

62 at 44.) The government specifically stated that “the materiality analysis has to be more

than” something helpful to the defense, but “has to be something that would change the

outcome,” specifically evidence “inconsistent with any element of the offense.” (Id.) The

threshold is neither that high nor that narrow, however, as all that is required to trigger

disclosure is that the evidence “would have made a different result reasonably probable,”

which requires a showing of less than a preponderance.

434, 441 (1995).

Kyles v. Whitley, 514 U.S. 419,

And at the same time the evidence need not undermine an element of the

offense, but can go to guilt or punishment.

Brady, 373 U.S. at 87.

The government’s response spurred further questioning by the panel: “Doesn’t Brady

though also talk about relevant to guilt or punishment?

Which is a little different than

defense, isn’t it?”

(Id.)

In response, the government responded that the evidence it

refused to disclose to Stampe, or to the district court in camera, could have at least impacted

the extent of punishment, noting “especially in this case, that could—It could have been

material to punishment.”

Id. Here, when to date, no court nor Stampe, nor her counsel

have been able to independently review this known problematic evidence—so problematic

that it required dismissal of identical charges against her codefendant—the risk that her due

process rights were note adequately protected is too high.

Finally, refusal to review in camera evidence know to be so tainted that it required

dismissal of one codefendant’s charges runs head-long into the Court’s holding in Alderman

v. United States, 394 U.S. 165, 183 (1969).

In Alderman the Court addressed facts similar

to those presented here and the Court was clear: A district court cannot rely only on the

government’s assertion that tainted evidence which directly undermines the charges against

one co-conspirator is irrelevant to other defendants in the conspiracy.

180-81.

394 U.S. at 167-68;

When it becomes apparent that some evidence was collected illegally, and the only

question is whether that illegality infected the case against a coconspirator, reliance on “the

government’s ex parte determination of relevance” is inappropriate.

Alderman, 394 U.S.

at 168, 181-83 (refusing to accept the government’s pronouncement that the tainted evidence

did not impact its case against the co-conspirators and requiring direct production).

Here, the government conceded that certain evidence was so tainted that it required

dismissal of the charges against Loden, Stampe’s co-conspirator and codefendant.

But, the

government’s only asserted basis for refusing to disclose the tainted material is that it is

unrelated to the case against Ms. Stampe.

See cf Alderman, 394 U.S. at 167-68; 180-81;