IN RE: UNITED STATES OF AMERICA, PETITIONER.
UNITED STATES OF AMERICA,
v.
FRANK COPPA, SR., ERNEST MONTEVECCHI, A/K/A/ BUTCH, DANIEL PERSICO, JACK BASILE, ROCCO BASILE, LARRY BERMAN, JOHN CIOFFOLETTI, JOHN DOUKAS, WALTER DURCHALTER, A/K/A DUTCH, EDWARD GARAFOLA, DANIEL LEV, EUGENE LOMABARDO, EDMOND NAGEL, ALFRED PALAGONIA, ALEKS PAUL, JOSEPH POLITO, SR., LAWRENCE RAY, ABRAHAM SALAMAN, AND GIUSEPPE TEMPERINO, A/K/A JOSEPH TEMPERINO, DEFENDANTS-RESPONDENTS,
NEW YORK COUNCIL OF DEFENSE LAWYERS, NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS, AND NEW YORK STATE ASSOCIATION OF CRIMINAL DEFENSE LAWYERS, AMICUS CURIAE.
Docket No. 01-3031
August Term, 2000
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
Argued: May 3, 2001
Decided October 5, 2001
Petition for a writ of mandamus to the United States District Court for the Eastern District of New York (I. Leo Glasser, Judge), which held, as a general rule, that Brady v. Maryland,
We hold that the Government has a constitutional duty to disclose only "material" exculpatory and impeachment evidence, and only when such evidence is needed for its effective use at trial or at a plea proceeding and that, therefore, the District Court erred in holding that due process requires disclosure of all such evidence immediately upon a defendant's request.
Mandamus granted and remanded.[Copyrighted Material Omitted]
Eric Corngold, Assistant United States Attorney (Cecil C. Scott, Assistant United States Attorney, of counsel; Loretta E. Lynch, United States Attorney, on the brief), Office of the United States Attorney for the Eastern District of New York, Brooklyn, Ny, for Petitioners.
Jay Goldberg (Andrew Weinstein, Jeffrey Lichtman, Joseph Bondy, Larry Bronson, of counsel), New York, Ny, for Defendants-Respondents.
John H. Doyle, III (Victor J. Rocco, of counsel), New York Council of Defense Lawyers, New York, Ny, for Amicus Curiae.
Before: Newman and Cabranes, Circuit Judges, and Underhill, District Judge.*
Jose A. Cabranes, Circuit Judge
The government's obligations under Brady v. Maryland,
With respect to when the prosecution must make a disclosure required by Brady, the law also appears to be settled. Brady material must be disclosed in time for its effective use at trial, see, e.g., Leka v. Portuondo,
I. Background
This petition arises out of a February 2, 2001, scheduling order issued by the District Court in preparation for trial.
Defendants stand accused in an indictment returned on March 1, 2000, with engaging in various crimes related to a large-scale stock fraud and money-laundering scheme.1 Before a trial date had been set,2 several of the defendants moved between November 2000 and February 2001 to compel the Government to disclose immediately all exculpatory and impeachment material in its possession. The District Court held a hearing on February 2, 2001, and granted defendants' motions. The District Court based its decision on its prior ruling in United States v. Shvarts,
After the indictment had been filed in Shvarts, the defendants had requested the prosecution to provide, far in advance of trial, all exculpatory and impeachment evidence that was in its possession. The prosecutor in Scvharts had agreed to disclose immediately to the defendants all exculpatory information encompassed by Brady, but had refused to release impeachment evidence relating to potential government witnesses until, in his view, such evidence was needed by the defendants for use at trial. See id. at 225. The prosecutor had argued that Brady and Giglio did not require him to disclose all Brady and Giglio materials immediately upon request by a defendant; in his view, those cases merely required him to disclose such materials in time for the defendant to use them effectively at trial.
The District Court rejected this argument. It noted that, in Brady, the Supreme Court held that a defendant's constitutional rights are violated if the prosecution fails to prоduce exculpatory evidence "on demand of an accused." See Shvarts,
The Government was soon presented, however, with another opportunity to challenge the rule enunciated by Judge Glasser in Shvarts. Like the defendants in Shvarts, defendants here moved far in advance of trial, pursuant to Brady and Giglio, to compel the Government to disclose immediately all exculpatory material and impeachment material relating to potential government witnesses. As in Shvarts, the Government agreed to disclose immediately all exculpatory information encompassed by Brady, but refused to turn over impeachment evidence relating to potential government witnesses. The Government argued that immediate disclosure of impeachment evidence was not compelled by Brady or Giglio, and contended that impeachment material could be released much closer to the time of trial. The District Court disagreed. It adhered to the approach that it had adopted in Shvarts and granted defendants' motions. The District Court therefore ordered the immediate disclosure of all impeachment materials in possession of the Government, unless the Government could show that such disclosure would endanger the life or safety of a potential witness. When the Government suggested thаt it might seek review of the District Court's decision, the District Court acknowledged the Government's "very strong interest in having the Shvarts case tested" and indicated that it would welcome appellate consideration of the issue. The Government subsequently filed the instant petition seeking an order compelling the District Court to vacate that portion of its February 2, 2001, scheduling order requiring the Government (in accordance with the general rule of constitutional law enunciated in Shvarts) to immediately produce all impeachment material.
In support of its petition, the Government argues that the District Court exceeded its authority in finding that it had a constitutional obligation to immediately disclose impeachment material relating to potential government witnesses upon defendants' request. According to the Government, such disclosure is not required by Brady or Giglio and, moreоver, is prohibited by a key provision of the Jencks Act, 18 U.S.C. § 3500, which provides in substance that no statement made by a government witness or prospective government witness shall be the subject of discovery until that witness has testified on direct examination.4 See Fed. R. Crim. P. 26.2 (2001) (incorporating the Jencks Act).5
Defendants argue that the District Court acted within its discretionary authority in fashioning "what amounts to an individual procedural order" which it applied in managing pretrial discovery, and, therefore, mandamus is inappropriate.
II. Availability of Mandamus Review
Pretrial discovery orders, such as the one here, are generally not reviewable by means of direct appeal, and "we have expressed reluctance to circumvent this salutary rule by use of mandamus." In re W.R. Grace & Co.,
First, as the District Court itself recognized, see Trial Transcript at 60 (Feb. 2, 2001), this appeal presents "a novel and significant question of law," In re United States,
Second, the petitioner has no other means of protecting its interests. Pretrial discovery orders in civil or criminal cases are generally not directly appealable prior to the entry of judgment. See Church of Scientology v. United States,
Third and finally, resolution of the issue presented here will aid in the administration of justice. There is currently a significant divergence of views among district judges of this Circuit concerning the correctness of the District Court's ruling. Compare Shvarts,
Having determined that the issues raised here warrant consideration on a petition for extraordinary relief, we now turn to the merits of that petition.
III. Merits of the Petition
The basic rule of Brady is that the Government has a constitutional duty to disclose favorable evidence to the accused where such evidence is "material" either to guilt or to punishment. See Brady,
Because Brady and its progeny are grounded in the Due Process Clauses of the Constitution, the essential purpose of the rules enunciated in these cases is to protect a defendant's right to a fair trial by ensuring the reliability of any criminal verdict against him. See Bagley,
A. Three Components of a Brady Violation
Although the government's obligations under Brady may be thought of as a constitutional duty arising before or during the trial of a defendant, the scope of the government's constitutional duty-and, concomitantly, the scope of a defendant's constitutional right-is ultimately defined retrospectively, by reference to the likely effect that the suppression of particular evidence had on the outcome of the trial. See Strickler v. Greene,
In the thirty-eight years since Brady was decided, the Supreme Court has issued a series of rulings that have clarified the scope of these three components of a Brady violation. Most of these rulings have focused on the second and third components-which, together, define what еvidence must be disclosed. See, e.g., Bagley,
The central issue here is whether, as a general rule, due process of law requires that the Government, following indictment, disclose all exculpatory and impeachment material immediately upon demand by a defendant. The District Court held that it does. We conclude, however, that the District Court erred with respect to both the scope and the timing of the disclosure required by the Constitution.
B. The Scope and Timing of the Required Disclosure
The scope of the disclosure required by Brady, as enunciated by the Supreme Court, has evolved over time. In Brady itself, the Court stated:
We now hold that the suppression by the prosecution of evidence favorable to the accused upon request violates due proсess where the evidence is material either to guilt or to punishment... Petition for a writ of mandamus to the United States District Court for the Eastern District of New York (I. Leo Glasser, Judge), which held, as a general rule, that Brady v. Maryland,
We hold that the Government has a constitutional duty to disclose only "material" exculpatory and impeachment evidence, and only when such evidence is needed for its effective use at trial or at a plea proceeding and that, therefore, the District Court erred in holding that due process requires disclosure of all such evidence immediately upon a defendant's request.
Thirteen years later, however, in United States v. Agurs,
[U]nless the omission deprived the defendant of a fair trial, there was no constitutional violation requiring the verdict to be set aside; and absent a constitutional violation, there was no breach of the prosecutor's constitutional duty to disclose.
...
But to reiterate a critical point, the prosecutor will not have violated his constitutional duty of disclosure unless the omission is of sufficient significance to result in the denial of a defendant's right to a fair trial. Petition for a writ of mandamus to the United States District Court for the Eastern District of New Yоrk (I. Leo Glasser, Judge), which held, as a general rule, that Brady v. Maryland,
We hold that the Government has a constitutional duty to disclose only "material" exculpatory and impeachment evidence, and only when such evidence is needed for its effective use at trial or at a plea proceeding and that, therefore, the District Court erred in holding that due process requires disclosure of all such evidence immediately upon a defendant's request.
Mandamus granted and remanded.
Bagley made explicit what Agurs foreshadowed: that "material" in the Brady context does not mean material in the evidentiary sense, as Brady seemed to suggest. Rather, evidence is material in the Brady context only if "its suppression undermines confidence in the outcome of the trial." Id. at 678; see also Pennsylvania v. Ritchie,
evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome.
Id. at 682.
More recently, in Kyles v. Whitley,
[T]he rule in Bagley (and, hence, in Brady) requires less of the prosecution than the ABA Standards for Criminal Justice, which call generally for prosecutorial disclosures of any evidence tending to exculpate or mitigate.
Id. at 437 (citing ABA Standards for Criminal Justice, Prosecution Function and Defense Function 3 3.11(a) (3d ed. 1993); ABA Model Rule of Professional Conduct 3.8(d) (1984)).7
The result of the progression from Brady to Agurs and Bagley is that the nature of the prosecutor's constitutional duty to disclose has shifted from (a) an evidentiary test of materiality that can be applied rather easily to any item of evidence (would this evidence have some tendency to undermine proof of guilt?) to (b) a result-affecting test that obliges a prosecutor to make a prediction as to whether a reasonable probability will exist that the outcome would have been different if disclosure had been made. To put it another way, Bagley makes the extent of the disclosure required by Brady dependent on the anticipated remedy for violation of the obligation to disclose: the prosecutor must disclose evidence if, without such disclosure, a reasonable probability will exist that the outcome of a trial in which the evidence had been disclosed would have been different. Although many cases continue to use the phrase "Brady material" to mean all exculpatory evidence and the phrase "Giglio material" to mean all impeachment evidence, these characterizations no longer have such broad meaning after Agurs and Bagley.
Like the extent of the required disclosure, the timing of a disclosure required by Brady is also deрendent upon the anticipated remedy for a violation of the obligation to disclose: the prosecutor must disclose "material" (in the Agurs/Bagley sense) exculpatory and impeachment information no later than the point at which a reasonable probability will exist that the outcome would have been different if an earlier disclosure had been made. Cf. Leka v. Portuondo,
The linking of the scope of the disclosure obligation with the remedy for its breach creates both a responsibility and a problem for the prosecutor. An assessment of whether an outcome would have been different if undisclosed evidence had been disclosed is best made after a trial is concluded. At that point the significance of the undisclosed evidence can be considered in light of the strength of all the evidence indicating guilt. The prosecutor, however, cannot await the outcome and must therefore make a prediction before the trial as to how the nondisclosure of favorable evidence will be viewed after the trial. The Supreme Court expliсitly recognized this difficulty in Kyles:
[T]he prosecution, which alone can know what is undisclosed, must be assigned the consequent responsibility to gauge the likely net effect of all such evidence and make disclosure when the point of 'reasonable probability' is reached.
Kyles,
In some circumstances, the prosecutor's prediction of "reasonable probability" will be easily made. For example, if there are three eyewitnesses who have told investigators that the perpetrator is someone other than the defendant, there will almost always be a reasonable probability that the disclosure of such evidence would have resulted in a different outcome from a trial at which it was not disclosed, regardless of the strength of the prosecution's evidence. At the other extreme, an item of evidence with some arguably exonerating effеct might be so trivial in significance to the entire trial evidence that there is no reasonable probability that its disclosure would have altered the outcome. But much evidence favorable to a defendant will lie between these extremes, obliging prosecutors to make a careful prediction as to when the "point of 'reasonable probability' is reached." Id. Of course, as the Supreme Court has pointed out, a prosecutor "anxious about tacking too close to the wind will disclose a favorable piece of evidence." Id. at 439.
Prosecutors with a clear understanding of Brady/Giglio requirements and of their professional responsibilities will readily be able to observe the applicable standards. In rare cases of a constitutional violation, judicial relief can be expected.
In this case, the parties аgree that the District Court used the terms "Brady material" and "Giglio material" to mean all exculpatory and impeachment evidence, and that the District Court's order of February 2, 2001, requires the Government to disclose all impeachment evidence in its possession without regard to its "materiality" in the Augurs/Bagley sense, cf. Shvarts,
"[t]he prosecution has the 'duty under the due process clause to ensure that 'criminal trials are fair' by disclosing evidence favorable to the defendant upon request."
Shvarts,
Neither the Supreme Court nor any Court of Appeals has given the words in Brady, "on demand of an accused," the temporal significance attributed to these words by the District Court. The reference to "on demand of an accused" merely indicates that, in evaluating a claim that a prosecutor had suppressed exculpatory evidence, the Supreme Court once placed some significance on whether the defendant had made a request for such evidence. Specifically, in evaluating such a claim, the Supreme Court distinguished among three situations: (1) where a defendant made a specific request for the exculpatory evidence at issue; (2) where a defendant made only a general request for exculpatory evidence; and (3) where a defendant made no request at all. See Agurs,
It thus appears that Brady's reference to "on demand of an accused" signified the importance that the Supreme Court placed in the 1960s and 1970s on whether a defendant actually requested exculpatory material. In nearly four decades of jurisprudence, the Supreme Court has never suggested that the reference reflected a constitutional duty to disclose Brady and Giglio materials as soon after indictment as such materials are requested. Indeed, a rule that makes the timing of disclosure dependent on the defendant's demand is directly contrary to the principle that a prosecutor's Brady obligation is independent of a defendаnt's request for Brady materials. See Bagley,
Accordingly, we reiterate the longstanding constitutional principle that as long as a defendant possesses Brady evidence in time for its effective use, the government has not deprived the defendant of due process of law simply because it did not produce the evidence sooner. There is no Brady violation unless there is a reasonable probability that earlier disclosure of the evidence would have produced a different result at trial, see, e.g., United States v. Romero,
C. Brady and the Jencks Act
If the Government were seeking mandamus review of a purely discretionary discovery order, we might be reluctant to grant the writ in this case, as "[c]courts faced with petitions fоr the peremptory writs must be careful lest they suffer themselves to be misled... into interlocutory review of non-appealable orders on the mere ground that they may be erroneous." Will v. United States,
The District Court in the instant case, relying on its own opinion in Shvarts, held that where the Government's obligations under Brady collide with its obligations under the Jencks Act, the former must prevail because the teachings of Brady arise under the Constitution while the Jencks Act is a mere legislative enactment. See Shvarts,
As discussed above, however, the District Court ordered the production of all impeachment evidence without regard for its materiality in the Agurs/Bagley sense. Such an order mandates disclosure of not only those witness statements that fall within the ambit of Brady/Giglio, and thus may be required to be produced in advance of trial despite the Jencks Act, but also those witness statements that, although they might indeed contain impeachment evidence, do not rise to the level of materiality prescribed by Agurs and Bagley for mandated production. As to the latter, a District Court's power to order pretrial disclosure is constrained by the Jencks Act, see In re United States,
IV. Conclusion
In sum, we hold that
(1) as a general rule, Brady and its progeny do not require immediate disclosure of all exculpatory and impeachment material upon request by a defendant;
(2) material required to be disclosed by Brady and Giglio is material, which, if not disclosed, creates a reasonable probability of altering the outcome;
(3) the Government "suppresses" evidence within the meaning of Brady only if it fails to disclose Brady and Giglio material in time for its effective use at trial or at a plea proceeding; and
(4) the time required for the effective use of a particular item of evidence will depend on the materiality of that evidence as defined by the Supreme Court in Agurs and Bagley, as well as the particular circumstances of the case.
Because the District Court in Shvarts and in this case articulated a general rule of constitutional law requiring the immediate disclosure of all exculpatory and impeachment evidence upon defendants' request-a rule based on a reinterpretation of Brady and its progeny which we reject-we grant the Government's motion for a writ of mandamus and direct the District Court to vacate its February 2, 2001, scheduling order. This case presents no occasion to consider the scope of a trial judge's discretion to order pretrial disclosures as a matter of sound case management. Judge Glasser did not purport to exercise such discretion. We will therefore remand the cause to afford the District Court an opportunity to determine what disclosure order, if any, it deems appropriate as a matter of case management. In so remanding, we intimate no view with respect to the scope of the District Court's case management discretion.
The Government's petition for a writ of mandamus is granted, and the cause is remanded for further proceedings consistent with this opinion.13
NOTES:
Notes
The Honorable Stefan R. Underhill of the United States District Court for the District of Connecticut, sitting by designation.
The facts related to those charges are not relevant to this petition.
On March 15, 2001, the District Court set the start of trial for October 22, 2001.
"That the obligation of the gоvernment to disclose impeachment as well as exculpatory evidence favorable to an accused is an obligation of constitutional dimension is beyond cavil.... It is sufficient to acknowledge, for this purpose, the constitutional obligation, without the necessity to discuss the requirement of 'materiality' as a precondition to its violation." Shvarts,
The Jencks Act, 18 U.S.C. § 3500, provides in relevant part:
Demands for production of statements and reports of witnesses
(a) In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) shall be the subject of subpena, [sic] discovery, or inspection until said witness has testified on direct examination in the trial of the case.
Federal Rule of Criminal Procedure 26.2(a) provides:
Motion for Production. After a witness other thаn the defendant has testified on direct examination, the court, on motion of a party who did not call the witness, shall order the attorney for the government or the defendant and the defendant's attorney, as the case may be, to produce, for the examination and use of the moving party, any statement of the witness that is in their possession and that relates to the subject matter concerning which the witness has testified.
Rule 401 of the Federal Rules of Evidence defines "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401.
The rules cited by the Supreme Court as requiring more of the prosecution than is required by due process of law are remarkably similar tо the rule announced by the District Court in Shvarts and applied by it in this case. Standard 3-3.11(a) provides: "A prosecutor should not intentionally fail to make timely disclosure to the defense, at the earliest feasible opportunity, of the existence of all evidence or information which tends to negate the guilt of the accused or mitigate the offense charged or would tend to reduce the punishment of the accused." (Emphasis added). Model Rule 3.8(d) provides: "The prosecutor in a criminal case shall... make timely disclosure of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense." (Emphasis added).
See infra note 9 and accompanying text.
Amicus Curiae New York Council of Defense Lawyers contends that because guilty pleas are generally made early in pretrial proceedings, our reasoning in United States v. Avеllino,
Congress passed the Jencks Act in response to the Supreme Court's decision in Jencks v. United States,
We also note that in Shvarts and this case the District Court did not purport to order disclosure аs a matter of discretion, but rather held, as discussed above, that disclosure on demand was compelled by the Constitution.
We know that in many cases-perhaps in most cases-prosecutors disclose impeachment materials to a defendant early in the proceedings, without particular regard to the outer limits established by the Jencks Act on when disclosure is required. In recalling today that the Jencks Act provides a set of rules that a prosecutor may invoke to avoid early disclosure, we do not intend to limit this often salutary practice, or foreclose other informal arrangements between parties and the court that reflect the felt necessities of a particular case.
On May 3, 2001, we granted a stay of the proceedings in the District Court related to this case until further order by this Court. See In re United States, No. 01-3031 (May 3, 2001) (order). We vacate that stay upon the issuance of the mandate.