Ninth Circuit Panel Upholds Conviction for Former Correctional Officer Despite Government's Failure to Turn Over Exculpatory Evidence to Defense
A three-judge panel of the Ninth Circuit Court of Appeals recently handed down its opinion in the case of United States v. David G. Bruce II, Case No. 19-10289.
Bruce challenged his convictions for conspiracy, attempt to possess with intent to distribute narcotics, and bribery of a public official.
Facts of the case
The charges related to Bruce's involvement in a drug smuggling operation at a federal prison in Atwater, California.
- Bruce was employed as a correctional officer at the facility;
- he took his case to a jury trial at which he was convicted;
- trial court sentenced Bruce to 78 months in federal prison.
Bruce raised a number of challenges to the validity of his conviction. Here, we focus on his Brady claim.
Brady v. Maryland
As readers know, under the seminal Supreme Court decision in Brady v. Maryland, the government has a duty to produce to the defense all material, exculpatory evidence in its possession.
Much of the evidence against Bruce was obtained through the cooperation of Thomas Jones, who was found in possession of drugs as he attempted to visit an inmate at the Atwater facility with his wife.
Jones, under threat of incarceration, agreed to help the government expose the drug smuggling scheme. Prior to trial, the government disclosed to the court in an ex parte filing that it possessed information that one of the officers involved in the search of Jones' vehicle, Paul Hayes, was the subject of over seventy inmate complaints.
Even more importantly, the government was aware that Hayes was himself under investigation for smuggling drugs into a different prison facility.
Arguments by the Government
The government argued that it was not required to turn over this damaging information about Hayes because it did not intend to call him as a witness in Bruce's trial.
The trial court agreed, and the defense was never informed of the complaints or investigation against Hayes.
After Bruce's conviction, Hayes was indicted for his own drug smuggling activities. This prompted Bruce's attorneys to conduct follow-up investigation at Atwater, including interviewing inmate Rush, who had testified against Bruce at trial.
Rush admitted that Hayes was part of a group of guards who had pressured him to testify against Bruce and threatened him with placement in segregated housing if he failed to do so.
Defendant's Motion for a New Trial was Denied
Bruce moved for a new trial, arguing that the information about Hayes was part of the government's required Brady disclosures.
The government argued that it had no duty to disclose the information because it would have been inadmissible as impeachment evidence, and that the weight of other evidence against Bruce would have resulted in a conviction even if the impeachment evidence against Hayes had been produced in discovery.
The trial court denied the motion for new trial, and Bruce appealed to the Ninth Circuit.
To succeed in his Brady challenge to his conviction, Bruce was required to demonstrate three things:
- (1) the evidence concerning Hayes was favorable to his defense, either because it was directly exculpatory or because it would impeach a prosecution witness;
- (2) the evidence was suppressed by the government, whether willfully or not; and
- (3) that the suppression of the evidence prejudiced his case.
As it was obvious that the government had intentionally withheld the information about Hayes from Bruce's defense team, the appellate panel focused on the two issues of whether the information was exculpatory and whether it was material, i.e. prejudicial.
Federal Rules of Evidence
The panel first noted that prosecutors not only have a duty to turn over evidence already in their possession, but also to exercise reasonable diligence in investigating a case to learn of evidence favorable to the defense.
In Bruce's case, the government had argued that the information about Hayes was not material to Bruce's innocence or guilt, and therefore did not have to be turned over.
The Ninth Circuit found that this argument conflated the exculpatory and material factors of the Brady analysis.
By focusing on technical issues such as the admissibility of individual pieces of impeachment evidence under the Federal Rules of Evidence, the government, the panel found, had ignored its larger ethical obligation to ensure a fair trial by erring on the side of suppression rather than disclosure.
Investigating evidence favorable to the defense
The government further argued that it was entitled to structure its case in a way to avoid having to call Hayes as a witness, and that it could not be faulted for failing to disclose Hayes' pressuring of inmates to testify against Bruce as it was unaware of that particular part of the impeaching evidence.
The panel disagreed. The fact that the government could have chosen not to call Hayes in its case-in-chief did not relieve it of the duty to investigate evidence favorable to the defense.
So too for Hayes' pressuring of witnesses, which could have been discovered by the government had it chosen to use its resources to diligently investigate leads into Hayes' wrongdoing.
As the panel put succinctly, prosecutors cannot turn a blind eye to their discovery obligations.
Ninth Circuit Agreed with the Government
In sum, the Ninth Circuit found that the government's arguments collapsed the Brady analysis into a single factor: materiality.
Because the government concluded the information about Hayes was immaterial to Bruce's guilt, it felt it had no obligation to investigate exculpatory information related to Hayes any further, and no obligation to disclose the information it did have to the defense.
Unfortunately for Bruce, the Ninth Circuit ultimately agreed with the government on the question of materiality:
- viewing the record as a whole, the panel was unable to find substantial doubt in the jury's guilty verdicts;
- it noted that the post-trial interviews of witnesses conducted after the defense learned of the impeaching evidence against Hayes did not produce any serious conflicts with the evidence against Bruce presented at trial;
- while Hayes certainly could have been called by the defense as a witness and impeached effectively had the government complied with its ethical and legal obligations under Brady, there was nevertheless sufficient unrebutted evidence against Bruce to sustain the convictions.
Government's ethical failures
While the final outcome in Bruce's case will no doubt come as a disappointment to the defense bar, the case is nevertheless notable for the strong language used by the appellate panel in detailing the government's ethical failures.
United States v. Bruce should be cited in the future for the proposition that the government may not legitimately structure its case to avoid calling a problematic witness as a way to avoid either disclosing Brady material to the defense, or to obviate its responsibility to conduct reasonable investigation into exculpatory evidence.
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