965 F.3d 993
9th Cir.2020Background
- Excel Investments ran a mortgage-fraud scheme buying unsold condos in exchange for developer kickbacks, using "straw" buyers and fabricated documents to obtain loans.
- Maher Obagi (supervisory role) and Mohamed Salah (lower-level role) were indicted for conspiracy and related substantive wire-fraud counts based on their work at Excel.
- At trial the government relied heavily on cooperating witnesses with credibility problems (notably Jacqueline Burchell) and repeatedly portrayed Halime "Holly" Saad as an independent, non‑immunized corroborating witness.
- Midway through closing arguments, prosecutors discovered—and disclosed to the court and defense—that Saad had in fact received immunity in a separate investigation and had significant credibility issues; extensive related material was produced after closings.
- The district court instructed the jury to disregard Saad’s testimony and the government’s arguments based on it, denied a mistrial, and later found no intentional misconduct by prosecutors; the jury convicted both on conspiracy and convicted Obagi on some substantive counts.
- The Ninth Circuit reversed, holding the late nondisclosure of impeachment material about Saad (a Brady violation) was material and that the district court’s curative instruction did not sufficiently cure the prejudice; convictions were vacated and case remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the government violated Brady by failing to disclose impeachment material about Saad before closing arguments | Government: nondisclosure was inadvertent, due to inter‑office communication breakdown; not intentional suppression | Obagi/Salah: prosecution suppressed material impeachment evidence that would have undercut a critical corroborating witness | Yes—the government violated Brady by failing to disclose Saad’s immunity and related impeachment material |
| Whether the late disclosure was material (i.e., likely to affect the jury) | Government: Saad’s testimony was duplicative and not central; district‑court instruction cured any prejudice | Defendants: Saad was pivotal to the prosecution’s closing theme (corroborating other cooperators); late disclosure prevented effective defense rebuttal and reargument | Material—the court concluded there is a reasonable likelihood the undisclosed impeachment could have affected the jury, so reversal is required |
| Whether the district court’s remedy (striking Saad’s testimony and instruction) and sanction decision warranted affirmance | Government: district court tailored a proportional remedy, juries follow instructions, and there was substantial other evidence of guilt | Defendants: the remedy came too late—after defense closing—and could not cure the harm from the government’s false closing narrative | The Ninth Circuit held the instruction did not adequately cure prejudice given timing and centrality of Saad’s corroboration; reversal and remand ordered |
Key Cases Cited
- Brady v. Maryland, 373 U.S. 83 (1963) (government must disclose favorable evidence material to guilt or punishment)
- Giglio v. United States, 405 U.S. 150 (1972) (impeachment information about witness deals must be disclosed)
- Strickler v. Green, 527 U.S. 263 (1999) (standard for Brady materiality and prejudice)
- Wearry v. Cain, 136 S. Ct. 1002 (2016) (materiality is any reasonable likelihood undisclosed evidence could affect jury judgment)
- Kyles v. Whitley, 514 U.S. 419 (1995) (investigative thoroughness and disclosure obligations relevant to Brady analysis)
- Richardson v. Marsh, 481 U.S. 200 (1987) (presumption that juries follow limiting instructions)
- United States v. Garrison, 888 F.3d 1057 (9th Cir. 2018) (review of prejudice and district‑court remedies for late Brady disclosures)