United States v. Jernigan

America, UNITED STATES of

Plaintiff-Appellee, JERNIGAN,

Rachel Alaffa

Defendant-Appellant.

No. 05-10086. Appeals,

United States Court of Circuit.

Ninth

Argued and Submitted March 2007. July 9,

Filed Hoidal, Hannah,

Thomas M. Hoidal & PLC, Phoenix, AZ, defendant-ap- for the pellant. Jernigan and was jury persuaded, was not Morrissey, Assistant United T.

Michael robbery March convicted of bank on Phoenix, AZ, for the Attorney, States plaintiff-appellee. 2001. Jernigan in learned that a prison

While description a had fitting woman similar in robbing arrested for several banks been January Jernigan filed area. (1) asserting a new trial a motion for process violated her due government SCHROEDER, MARY M. Before: Brady Maryland, 373 U.S. rights under FLETCHER, Judge, B. Chief Circuit (1963), 10 L.Ed.2d 215 PREGERSON, ALEX HARRY material, trial by failing to disclose before KOZINSKI, F. DIARMUID govern- to the exculpatory evidence known O’SCANNLAIN, PAMELA ANN (2) ment, alternatively that and SILVERMAN, RYMER, M. BARRY G. required discovered after trial Jerni- MCKEOWN, RAYMOND MARGARET a to Feder- gan pursuant receive new GOULD, FISHER, M. RONALD C. al Rule of Procedure 33. The Criminal BERZON, BYBEE, JAY S. S. MARSHA January her motion in district court denied CALLAHAN, CARLOS M. CONSUELO pan- a Jernigan appealed. After IKUTA, BEA, Circuit S. T. and SANDRA court, affirmed the district el of this court Judges. en banc. we voted to rehear this case We original panel disagree with both BETTY B. by Judge Opinion sup- the district court and hold FLETCHER; by Judge BEA. Dissent was material to Jerni- pressed evidence FLETCHER, Judge: B. Circuit BETTY court’s decision gan’s guilt.2 The district arrested Rachel was Defendant reversed, for a and we remand hereby 10, 2000, rob- allegedly for on new trial. After three banks. bing I. awaiting two custody in placed by a woman area banks were robbed more 20, 2000, Bank of On uncanny physi- bore an description whose Gilbert, Arizona was America branch both women were cal resemblance to hers: short, a woman with Hispanic a robbed tall, Hispanic,1 and had roughly five feet posed as a face. pock-marked Al- complexions. pock-marked acne or her turn line customer. When other knew that though prosecution came, hand-written passed sloppy, she by a dimin- nearby banks had been robbed Chlupsa, the victim bank note to Elizabeth utive, after poor skin Hispanic female teller, Chlupsa did threatening to shoot if arrest, failed to prosecution Jernigan’s money in her over all of the not hand information to defense counsel. relay this complied with the de- Chlupsa drawer. note, fled without and the robber mand Proceeding knowledge without having said a word. robber, Jernigan’s alleged bank second suspect after simply at trial that his became argued counsel the FBI However, between chance conversation misidentified. client was question of need not reach the term 2. We therefore may "Latina” be the more accurate denying court erred in whether the district "Hispanic” throughout proceedings but Jernigan’s for a new trial based motion been used. has Procedure 33. Federal Rule of Criminal agent investigating robbery the bank ultimately and a The district court severed the charges involving 20th postal inspector investigating who was Jer- rob- bery from the other robberies with which nigan connection with some shoplifting charged. she was trial for the post incidents at a local During office. September 20th robbery began on March conversation, postal their inspector 20, trial, government 2001. At relied Jernigan that fit description noted of entirely eyewit- on the accounts of five the unidentified bank robber. After re- nesses and the bank surveillance video. viewing photographs Jernigan of and com- The video provide did not a clean at look paring them to surveillance photographs the bank pri- robber’s face3 and was used September robbery, from the 20th the FBI marily to eyewitnesses’ bolster the testi- agent investigation focused his on Jerni- mony. physical No Jernigan evidence tied gan. agent a photographic created robbery. Jernigan flatly to the denied lineup Jernigan that included and showed and, in any involvement bank robberies at teller, photos to the victim bank who trial, argued her counsel that she had been Jernigan identified as the woman who had by misidentified the witnesses. Counsel robbed her. No eyewitnesses other were not, however, suggest did jury to the who shown the photospread—or any pho- other might have been the robber if Jernigan tographs Jernigan—until five or six were not. months later. jury convicted of both Police arrested on November armed bank robbery and use of a firearm 10, 2000, and she has remained in custody during an robbery. armed bank The dis- since time. addition to the Sep- trict court sentenced her to 168 months 20, robbery, police tember also jail years and five supervised release. charged Jernigan with two additional bank The remaining robbery charges bank were 11, robberies: an robbery October by stipulation. dismissed 906 East Tempe, Baseline Road in and an 11, 2001, On December Juanita Rodrí 25, October robbery at 2298 North guez-Gallegos alleg robbed the same bank Alma Following School Chandler. Jer- edly 20, by Jernigan robbed incarceration, nigan’s but before her 2000. During robbery the victim tell two other bank were robberies commit- er, Golliher, placed Kathleen a tracking 28, 2000, ted—one on November and an- device in money. the stolen Police 30, other 2000—by on November person stopped Rodríguez-Gallegos half an hour matching short, Jernigan’s description: a after robbery and Golliher identified Hispanic woman with acne. One her as the police report robber.4 The located across the street from one of the described Rodriguez-Gallegos as a His allegedly by banks Jernigan; robbed female, panic 4'11" pounds, and 125 other bank was located approximately ten eyes, hair, brown black pock-marked away. miles cheeks. charged Rodriguez-Galle- Police robberies, witnessed, 3. We have reviewed the surveillance video both of which she were images and still taken from the video and conducted different women. The robber- agree identify that this evidence does not Jer- place apart. took ies 15 months Golliher was nigan image poor as the robber. The is of not the victim teller in the quality wearing and the robber is a hat that Moreover, robbery. she was at some obscures her face. gave conflicting distance from the robber and complexion age. accounts woman’s 4. during hearing Golliher asserted on the motion for a new trial that the two bank 28, 2000, process accused violates the due Novem- gos with the law, irrespective suppres- 2001 bank of whether the and December ber robberies, good faith or bad. Id. at one count of brandish- sion is done and with a violent crime. She during a firearm ing offense, and the to the firearm

pled guilty Brady’s progeny have articulated dropped. remaining charges were prove three elements that defendants must Rodriguez-Gallegos’s learning After Brady to show a violation. See Benn v. inmates, fellow arrest (9th Lambert, Cir. motion, trial. In her for a new moved 2002). First, suppressed government Jernigan asserted be favorable to the accused. See must obligations by failed to meet its had 667, 676, Bagley, United States U.S. phenotypi- of a disclosing the existence not (1985) (cit 3375, 105 S.Ct. 87 L.Ed.2d 481 had been who cally similar bank robber 1194). 87, at 83 ing Brady, 373 U.S. S.Ct. after Jer- in the same area robbing banks Second, sup the evidence must have been argued also nigan’s incarceration. She by government, willfully the either pressed her a grant the district court should inadvertently.5 v. or See United States the upon Rule based new trial under 33 97, 110, 2392, 49 Agurs, 427 U.S. 96 S.Ct. developments involving post-conviction (1976). third, sup the L.Ed.2d 342 And court de- Gallegos. The district Rodriguez pressed evidence must be material to the and Jer- grounds, the motion on both nied of the defendant. See guilt innocence nigan appealed. 676-78, at 105 Bagley, 473 U.S. S.Ct. dispute not government Because the does II. an bank the evidence of additional Supreme the Brady Maryland, In v. matching Jernigaris description only not “[s]ociety wins explained, Court Jernigan and that the was favorable to when guilty are convicted but when it provide failed to to defense government fair; system our trials are criminal counsel, in is wheth only dispute issue justice when administration of suffers was material. er the evidence at unfairly.” 373 U.S. accused is treated materiality touchstone of re The 87, also noted 83 S.Ct. 1194. Court sup admission of view is whether only with charged are prosecutors have created a would pressed evidence justice. seeking with winning trials but “ of a different res probability’ ‘reasonable 87-88, & n. 2. Prem at 83 S.Ct. 1194 Id. 6 Whitley, 514 U.S. Kyles ult.” v. understanding of fairness and ised on this (1995) L.Ed.2d 490 115 S.Ct. held responsibility, Court prosecutorial 105 S.Ct. (citing Bagley, favorable U.S. suppression of evidence completely irrelevant to the looks like is investigation of all of the robberies was 5. The analysis. question whether a reason- agent apparently an FBI who conducted jury would existed that the prosecutor probability about the November able never told the provided anyone if no indication that have arrived at a different result robberies. There is specifically, Attorney's office acted in bad faith. excluded evidence. More in the U.S. with the jury, pre- question when is whether shaky, nothing than cross- more sented opinion presents a her- dissenting red 6. The identifications, unsupported eyewitness racial ring steps before the court. and side the issue evidence, by any physical would have 'arrived dispute whether and Rodri- At is not that a when informed at a different result At the time of guez-Gallegos "look alike.” uncannily similar woman described government did not know unlikely describing a most terms—terms robberies. As who committed the November result, robbing area banks in the same Rodriguez-Gallegos actually robber—was what 3375). Kyles empha- And as the Court ness Procedures: Recom Identification sized, adjective impor- “reasonable” is Lineups mendations For and Photo tant. Id. A defendant need not show that spreads, L. & Hum. Behav. 619-27 likely than she “would more not have re- (1998); al., Gary L. et Accuracy, Wells ceived a different verdict with the evi- Confidence, Perceptions and Juror Instead, only dence.” Id. she must show Applied Eyewitness Identification, 64 J. government’s evidentiary that “the sup- Psyohol. (1979). Cross-racial identifi pression confidence in ‘undermines cations, eyewitness such as the accounts ”7 (quoting Bag- outcome of the trial.’ Id. against Jernigan, offered particularly are 3375). ley, 473 U.S. at Gee, suspect. Harvey Eyewitness See considering whether the failure to disclose Testimony and Cross-Racial Identifica exculpatory evidence undermines confi- Eng.L. tion, (2001) (re 35 New Rev. “ outcome, judges dence must ‘un- viewing Loftus, Eyewitness Elizabeth F. careful, dertake a balanced evaluation of (1996)); Testimony Rutledge, John P. strength nature and of both the evi- They All Look Alike: The Inaccuracy of dence prevented pre- the defense was Identifications, Cross-Racial J. Am. senting pre- and the evidence each side ” (2001). Crim. L. 207 In a case that turned Rae, Bailey sented at trial.’ entirely eyewitness identifications, the (9th Cir.2003) (quoting Boss v. presence of a second robber the same Pierce, (7th Cir.2001)). 263 F.3d words, area fitting very physical the same other “the withheld de evidence analyzed ‘in must be the context of scription the was bound “substantially re ” Benn, entire record.’ 283 F.3d at 1053 destroy[ or duce[ ] the “value” of the ]” (quoting Agurs, 427 at U.S. eyewitness testimony. Kyles, See 514 U.S. 2392). 441, 115 at S.Ct. 1555. Here, suppressed the evidence substan eyewitnesses Five Jernigan’s testified at tially already the questionable erodes val as, alia, describing the robber inter eyewitness ue of the identifications. “Cen very, very “a Hispanic, short I what experience turies of in the administration thought Hispanic-looking lady.” was “She justice of criminal have shown that convic very small, was either five-foot or under solely tions based on testimony that identi five foot.” Hispanic She was “either or previously fies defendant unknown to the “[v]ery Oriental.” She was a person, small highly witness is suspect. Of all the vari possibly Hispanic.” She was “a short ous kinds of evidence it is the reli least acne, may Asian woman.” “[S]he have had able, especially where unsupported by cor pocked.” kind of She did not have “a clear roborating evidence.” Jackson v. Fogg, complexion.” hair, very “She had dark (2d Cir.1978); see also black.” Justice, Department Eyewitness Evi government shortly dence: A Guide for Law The knew Enforcement after Jer- (Oct.1999); Gary al., Eyewit- arrest, L. Wells et nigan’s disclose, but did not 434-35, just days Jernigan’s after incarceration. Giv- 514 U.S. at 115 S.Ct. 1555. Defen- extraordinary the en unlikelihood of two such may prevail Brady challenge dants in a even if existing robbers at the same time in the same the evidence remains sufficient to convict fol- place, jury may believes that the lowing suppressed the introduction of the evi- accepted Jernigan's well have "misidentifica- only dence. Id. Defendants need "that show suppressed tion” defense had the evidence reasonably favorable evidence could been admitted. put taken to the whole case in such a different light as to undermine Kyles specifically rejected confidence in the ver- the idea that Bra- dy required sufficiency evidence test. dict.” Id. 115 S.Ct. 1555. robberies, Summary Interpretation tigation, to two additional witnesses (2002). Statistics, The Bank Crime was close to the bank she place took which short, Hispanic two female likelihood of strikingly offered robbing, charged with pockmarked holding up with skin robbers perpetrator. descriptions of similar ex- banks in the same area is therefore the November 28th described Witnesses tremely low. “[a] or “Hispanic Oriental” robber as acne,” brown “[d]ark “5T'-5'2"” little another bank The existence of was 30th robber Jernigan may The November for well have been hair.” whom “Female,” “Hispanic,” magnifies significance “5'1"— mistaken also as described prose- in the gaps and inconsistencies 5'2",” “Pot Marked Face.” She [sic] with a gap, case. most obvious cution’s wom- as a “small Asian was also described earlier, complete lack of noted was the police bulletin de- under 5 ft.” an physical connecting Jernigan 30s, 5'02", female, “Hispanic scribed Even after ar- the crime. was hair, cheeks pock marked black pounds, rested, police produce any failed to and braces.” connecting her to the physical evidence Moreover, reported tellers the victim fingerprint crime: a lifted from the victim in all of the rob- operandi modus similar did match teller’s window teller testified The victim beries. arrested, and, after was print, robbery the 20th during money, to find the stolen police failed read, “Don’t her a note robber slid robbery, firearm used to conduct the scene, money, your me all big give make a that worn any clothing resembling tracking any dye packs or give me don’t the robber. the alarm or else press and don’t devices Furthermore, government’s wit- The note “handwritten” will shoot.” inaccurate or inconsistent provided nesses ... sloppy “fairly big in a and kind testimony, troubling, atyp- which is but not the November 30th printed” fashion. On instance, eyewitness For ical of accounts. victim teller passed a “note” to the robber victim teller on Chlupsa, the said, writing,” “Do very sloppy “in which 20th, immediately maintained both after alarm, your all Give me not set off that the robbery during the and your set off alarm.” money, Please do not had no tattoos and did perpetrator 30th, the robber Similarly, on November However, painted fingernails. have Jerni- turn on stating, a note “Don’t passed her a number of tattoos on hands gan has alarms, you’re dead.” forearms, photographs in and as evidenced similarity between the de- uncanny and to the district court com submitted shortly would be FBI after the arrest. scriptions alleged by of the robbers firmed the ac- eyewitness if the noteworthy even perpetrator also described the Chlupsa unlikely a most counts did not describe wearing having plucked eyebrows, as (the year the rob- In 2000 bank robber. “a lot of very, very, eyeliner,” dark “very, place), only took six question beries in eyeliner. By con- makeup,” and a lot of robbery perpetrators of all bank percent trast, Hawley, a customer who Lorraine line, Only percent female. six in de- perpetrator were to the stood next female) (male to no wearing were “little the robber robbers overall scribed eyewit- no make-up” lipstick.8 Fed. Bureau of Inves- Hispanic. See U.S. uncertainty they highlight the significant, determin- less also had a difficult time Witnesses Hispan- ing the was Asian or eyewitness whether identifications. may be Although inconsistencies ic. these equally telling. Jernigan—even possibly was other than tentativeness nesses’ Rodriguez-Gallegos. get good to look at Hawley, who claimed robber, picking had some trouble Jer- the isolation, in When considered the photospread, stating, “I nigan out of inconsistencies, gaps, exculpa various say it looks like this one.... I want to tory might details the record be insuffi would the one.” Golliher say would this trump testimony cient the of the five well, appears to have had trouble as stat- eyewitnesses. But when this evidence is ing, “By—I just felt that was the one collectively, it considered undermines con that—that was whom saw.” may fidence in the outcome of trial. It the problems altogether These are not sur- be that two five-foot-tall Hispanic women eyewit- prising given that all but one of the pock-marked robbing skin were photospread nesses viewed the five to six banks in same the same area with the Hawley months after the incident. first operandi geta same modus and the same photospread days saw the two before tri- way may vehicles. And it be that robbery. al—six months after the Three police just happened finding to miss others—Golliher, Nath, employee Yarjanic gun robbery used in the for which Jerni and customer Donovan Grierson—were all tried, gan was worn in clothes photos five after shown months robbery, money and the stolen the rob robbery. delay, goes totally This which bery, apprehending Jernigan. when itBut unexplained, also detracts from the relia- may also be that the hesitant and conflict bility of the identifications. ing by eyewit identifications offered many nesses months after the event were Finally, probability incorrect, simply and that the witnesses was confused with the real bank robber is picked Jernigan photospread out of the pieces bolstered further various of ex- because she was the woman who looked instance, culpatory evidence.9 For the most like the culprit.10 real getaway car for the 2000 rob- October bery—a Toyota black 4-Runner—matched weAs view the withheld evidence in the record, description of the November 2000 context of the apparent entire it is get-away by Rodriguez-Gallegos. car used us the evidence was material and Additionally, the victim prejudiced by teller the Octo- sup- its 11, robbery identify ber 2000 could not the pression. Withholding knowledge aof sec- woman who robbed photo- suspect her the ond conflicts with Supreme the however, spread containing Jernigan; the Court’s directive that “the criminal as that victim declared the October 11 robber distinct from prosecutor’s private the de- liberations, was the woman in preserved] the surveillance video [be as the chosen 20, September robbery, sug- from the 2000 ascertaining forum for truth the about gesting that the 20th criminal Kyles, accusations.” 514 U.S. evidence, Jernigan questioned by polygraph 9. a was ex- and we do not it consider in reach- prior pert polygrapher to trial. The asked ing our decision. robbing gen- about banks both as a regard eral matter and in to the three banks noting Rodriguez-Gallegos 10. It is worth that originally for which she was arrested. Jerni- any photo- was never included in those, gan denied involvement in oth- Thus, spreads eyewitnesses. shown to the er, bank and robberies her score of 17 indi- opportunity there was never an for the wit- response (anything cates truthful above a 6 compare Jernigan Rodriguez- nesses to and truthful). is considered does not Gallegos. challenge the district court’s exclusion of this exquisitely an de- majority gives this By suppressing 440, 115 S.Ct. through de the circum- tailed tour it- arrogated to evidence, prosecution the force similarity physical stantial evidence to the belonging function self a central That between the two women. appearance ad- its role as jury pursued criminal infer- certainly preliminary tour allows the of its role as the exclusion versary to found, jury that the have on ence could Brady, 373 just trial. of a architect Cf. alone, Rodriguez-Galle- that evidence 2. The 87-88, 1194 & n. U.S. at jury enough Jernigan; looked like the gos of a deprived Jernigan has government Rodriguez-Gallegos have found was could possibly innocent placed fair trial 20, 2000 robber probably the the evidence bars. behind Because woman not to that evidence. But our task is material, was government the withheld only the jurors given imagine ourselves panel decision of reverse the we de- circumstantial evidence of women’s court, to the district and remand district must consider whether scriptions. We consistent proceedings further court for rejecting that cir- district court erred in opinion. our with of what he view cumstantial AND REMANDED. REVERSED alike.1 did not look saw: that women proper scope When we focus on BEA, Judge, whom with Circuit review, solely to deter- obligation our O’SCANNLAIN, joins, Judge, Circuit in find- court erred mine whether dissenting: the later evidence of ing the non-disclosed material; no my disagreement I cannot articulate robberies was not bank than reasoning better violation occurred. See United majority’s Brady with 667, 676-78, 105 “My colleague Judge Bagley, Farris: v. 473 U.S. our States did (1985) 3375, (citing appro- on what is S.Ct. L.Ed.2d and differ brother 83, 87, 83 Maryland, U.S. retry. Brady He would function. priate appellate (1963)). Deter- 10 L.Ed.2d 215 Ashcroft, Li v. S.Ct. I am content review.” Cir.2004). (9th upon which mination of the facts 959, 964 n. 1 F.3d dealing two different later did—he majority that "what Rodri- concludes 1. The complete- actually Significantly, guez-Gallegos like is looks female robbers. Brady analysis” because ly irrelevant to did not Carroll’s determination identity of did know the the Government robber was look like the prior to Jerni- 2000 robber the November possessed by the solely based on evidence 6, Majority Opinion. gan’s note trial. See trial, i.e., government prior to distinguish failing to be- errs in from the November photograph taken appearance; they are not identity and tween See Mot. New Trial 2000 surveillance video. determining purposes of synonymous for 117). (Docket Ac- May No. Tr. Brady evidence. materiality claimed finding cordingly, Judge that Jerni- Carroll’s Although did not know the the Government 28, 2000 gan the November did not look like robber identity of Indeed, by if hardly irrelevant. trial, Jernigan's the Government prior to had the happenstance two women some 28, 2000 robber what the November knew complicating matters names—further same trial; Jernigan's prior to the Gov- looked like coinci- identity point of view—this an from possessed and viewed surveillance ernment the evidence would not have made dence robbery 2000 bank video of the November simple reason under for "material” Agent Kyle Jernigan’s FBI prior to trial. Hence, the do not look alike. the two women compared photographs taken had Richard permit does not non-disclosed evidence surveillance vid- the November Jerni- eyewitnesses mistook inference (of those of Jerni- Rodriguez-Gallegos) to eo Rodriguez-Gallegos. gan Judge Carroll for gan, and had determined—as properly confided that the former could be mistaken for the materiality is decided is subject to latter: judge to and should only for clear error. See

review us simple [Jernigan] “The fact is that and II.A, section infra. Rodriguez[-Gallegos] do look alike....” us should only Brady issue2 before Judge determination be whether Carroll’s argued “The defense has not the two ” ap- not of that the women were similar women ‘lookalike.’ not, un- was clear error. If pearance says “Common sense that if Defendant not material under disclosed evidence was alike, fact Rodriguez do not look Brady. they may physical that share similar a Judge presided Earl H. Carroll3 over height, characteristics such as racial four-day robbery charge trial of the bank poor characteristics and complexions, “hat against Jernigan. Jernigan, sans the support finding does not a or an ‘infer- that obscures her face”4 in the Rodriguez-Gallegos ence’ that robbed video, bank surveillance sat Bank America branch Gilbert table, Judge several feet from Car- counsel 2000.”6 proxim- roll. After about 25 hours of such Judge Carroll’s written decision is consis- trial, ity Judge and on the motion for new finding tent with Jernigan’s his earlier that compared photograph Carroll a of Rodri- physical “appearance, appearance, her guez-Gallegos taken from the November face, mouth, hair of this Miss 28, 2000 bank surveillance video with a Rodriguez[-Gallegos] markedly ... are dif- photograph Jernigan Jernigan and with ferent.” photograph herself. The clear of Rodri- Judge labels Carroll’s find guez-Gallegos a full was face black and ing dissimilarity herring.” a “red See white; any a hat wearing she was not 6, Majority Opinion. finding note Is nor, forfend, sort But Heaven mask. Rodriguez-Gallegos do Judge help not all had to Carroll really “deliberately not look alike mis him determine whether there was object,” leading like the smoked and chance could be mistaken for smelly that poachers fish would trail on No, Rodriguez-Gallegos. he also had the ground, away game, from their written admission of counsel off, dogs throw the owner’s and leave the that Jernigan argued had never the two ? game poachers to the women “looked alike.”5 No, Judge Jernigan’s Brady Carroll found to call Carroll’s visual deter- claim meritless and delivered written mination the women did not look alike a denying Jernigan’s herring” decision motion for “red is to invoke retort of the last spe- caught new in which decision he made the knave red-handed: are “Who believe, cific findings regarding you going your lying whether me or eyes?” looked enough Rodriguez-Gallegos, like so Reply April

2. The Government the evidence was 5. Def.'s on Mot. for New Trial concedes 12, 2004. favorable and undisclosed. Order, 21, January 6. 2005. Appointed 3. to the court district in 1980. 87, 12, (Dock- May 7. Mot. New Trial Tr. 2004 3, 117). Majority Opinion.

4. See note et No.

1059 28, 2000 do not ignore I cannot and the November majority, Unlike finding; their eyes alike, Judge being herring,” Carroll’s look far from a “red circum- the undisclosed they determine judicial ruling is the central which renders was not material. stantial evidence irrelevant, the undisclosed evidence hence Judge not “material”—unless the who so effect of such a me illustrate the Let ruled committed error in his reversible had dis prosecutor finding. Assume only properly evi description ruling. the circumstantial That issue closed looked Jernigan suggested dence which before us. robber, 28, 2000 later

like the November review, Applying scope the correct But Rodriguez-Gallegos. as identified Judge findings—carefully Carroll’s factual had disclosed prosecutor assume the also ignored by majority—are clearly not that Judge that convinced Carroll evidence and, view, my in are entitled to erroneous8 was in fact incarcerat Rodríguez-Gallegos Accordingly, deference. since the claimed 20, day September throughout ed Brady evidence would not have under- 2000, thus unable to have committed in jury mined confidence verdict of 20, robbery. 2000 bank September conviction, I would affirm. to Exercising gate-keeping his function bar misleading testimony, Judge however, confusing and to accord majority, refuses would exclude the circumstantial Carroll findings, departs deference to these from testimony irrelevant. See description in binding Supreme precedent Court 104, would Fed.R.Evid. 402 and 403. We regard,9 engages appellate finding in fact if also affirm the evi affirm. We would having without the benefit of ever seen all, at see dence had not been disclosed in Jernigan (except the video where she Sarno, 1470, States United hat), obscuring departs wore face (9th Cir.1995), Judge had unless Carroll 437, 419, Whitley, 514 Kyles v. U.S. in error his eviden committed reversible 1555, (1995), by L.Ed.2d 490 S.Ct. Rodriguez-Gallegos was tiary ruling that materiality on the basis of all determining have committed jail in and thus unable to evidence, and reverses. non-disclosed 20, robbery. 2000 bank 28, Here, 2000 surveil- the November I. dictates the same photograph lance video 10, 2000, On November it-supports Judge because Car- conclusion suspicion robbing three arrested on Jernigan and the No- finding roll’s Valley in East area of Arizona: banks robber, 28, Rodríguez-Galle- vember 20, 2000, one on one on October Judge gos, do not look alike. Carroll’s 25, 11, 2000, 2000. and one on October disclosed, if ruling was that even custody pending Jernigan was While in November 2000 would of “the robberies robbed two additional banks were in this case [.]” not have been admissible Valley: the East one on 7, January (emphasis See Order added). short, 2000 and one on November Wit- fact that have re Judge his own observations Carroll did not deduced from 8. There is no claim that Rodriguez- actually photograph decisions. cently have a in reversals of our resulted Gallegos compare Brown, - U.S. -, 127 S.Ct. See Uttecht v. might blind—claims that Carroll was indeed (2007); Rice v. Col 167 L.Ed.2d 1014 finding. grounds for clear error fact lins, L.Ed.2d 546 U.S. (2006). appellate finding contrary to fact 9. Similar judge and has what the trial has observed notes, all five bank robber- the surveillance video from ness statements 20, September robbery suf- Hispanic as a short 2000 bank describe the robber ies quality fers from a lack of and was used complexion. poor woman with a primarily eyewitnesses’ to bolster the tes- Richard, robbery the bank Agent Kyle timony. Bureau of In- at the Federal coordinator Jernigan’s argued defense counsel division, was the case vestigation’s Phoenix avail, identify Jernigan mistaken to no Agent all five bank robberies. agent for 20, 2000 September was convicted of the Richard determined the bank robberies robbery. were not commit- September October by the woman who committed ted same 11, 2001, Rodríguez-Galle- On December the bank robberies in November. This shortly gos robbing was arrested after comparisons determination was based on Jernigan same bank was convicted of rob- statements, operandi, of the modus witness 20, bing 2000. In addition Jernigan photo- a of with photograph 11, robbery, to the December 2001 bank graphs taken from the surveillance video Rodríguez-Gallegos charged was with the Owing to of the November robberies. his November 2000 and November determination, Agent Richard did not in- 2000 bank robberies. Attorney

form the Assistant United States learning Rodriguez-Gallegos’ After of Jernigan’s case of the Novem- prosecuting arrest, Jernigan filed motion for a new Thus, ber robberies.10 the Assistant Unit- trial, asserting Brady violation on the Attorney ed States did not disclose the basis the Government should have dis- Jernigan’s bank robberies to closed the November 2000 and Novem- defense counsel. ber 2000 bank robberies. Earl Carroll, H. judge pre- the same who had eyewitnesses independently Five identi- trial, Jernigan’s four-day sided pre- over Jernigan having fied committed the Jernigan’s sided over motion for new robbery. 2000 bank At During evidentiary trial. hearing, eyewitnesses two of the Judge Carroll found: range described close contacts with Jerni- One, teller, gan. respect the victim who was at my [W]ith least to observa- case, presence immediate of at tion in this Miss defendant minutes, robbery Jernigan, photograph, time of the for several and the which is have, thereafter, all I Jernigan accurately Rodriguez[- described of the—Miss Gallegos], I would identifying Jernigan and had no trouble observe from what they people, see there that are picked photo- when she her out from the different and that having someone looked them spread days robbery.11 two after the under these circumstances would have other testified resembled a determination, been able to make such a friend, which made identification for her they if it presented had been at the testimony much easier. The of these two same time or close to that time. eyewitnesses was corroborated the tes- timony eyewitnesses photograph three additional Miss photospread and the bank surveillance video. As the was used on the and her 10. This in no way acting government's alleviated the Assistant to the others on the be- case, Attorney's duty United States to disclose the including police.''). half in the they November robberies were if material un- Brady. Kyles, der See 514 U.S. at photospread 11. No claim made that the ("[T]he prosecutor S.Ct. 1555 individual has a suggestive improper. or otherwise duty to learn favorable known they may physical her that share similar appearance, appearance, physical mouth, height, that this Miss characteristics such as racial hair and face, poor complexions, are mark- characteristics and [-Gallegos] think Rodriguez support finding does not or an “infer- edly different. Rodríguez-Gallegos ence” that robbed 12, 87, May Trial Tr. Mot. New the Bank of America branch Gilbert added). 117) (Docket (emphasis No. 20, on 2000. September Rodriguez-Gallegos photograph The added). Order, 21, January (emphasis Judge compared Carroll to which “oxymoron” video of If it is an for the defense to taken from the surveillance was robbery. Rodríguez-Gallegos 2000 bank claim committed the the November robberies, unlike the surveillance earlier bank all the while admit- photograph, This September ting Rodríguez-Gallegos 2000 bank rob does not look like video quali Jernigan, where does it leave bery, does not suffer from lack Indeed, clearly por necessity here? It leaves them with the ty. photograph this bearing appellate findings directly resemblance make of fact trays a woman little contrary by PE PE to those made Jernigan. Compare Judge Carroll by and conceded and PE 3. defense. Consider, slowly, motion Jernigan’s import denied of such a Carroll stating: appearance view. All the

for a new trial in a written order characteristics of the two women contained in the witness and simple [Jernigan] The is that fact descriptions are trotted out as circumstan- alike, Rodriguez[-Gallegos] do not look Brady tial evidence to show the materiali- may in their whatever similarities be ty of the November robberies. Hispanic appearance. It complexions appearance These characteristics are rele- oxymoron is at best an for the defense prove point point only: vant to one and one Rodriguez[-Gallegos] that is to claim much alike that the the two women look so September 2000 rob- “probably” the jury should have been informed of the ber, the two given the admission “that “ jury robberies because women do not ‘lookalike’ eyewitnesses that mistook could find five arguments about Government’s Rodríguez-Gallegos, for who ac- appearance between the differences But tually committed the earlier heists. are Rodríguez-Gallegos importance—the “materiality”—of this equally place, thin. In the first evidence is circumstantial abandoned repeated insistence that Government’s own counsel’s admission that Jernigan’s ‘Jernigan Rodriguez[-Gallegos] do in the even he does not think the woman alike,’ e.g. Response not in fact look 20, 2000 bank vid- September surveillance 9, 11, a straw man. The is defense alike, and Rodríguez-Gallegos eo and look ‘look argued has not the two women ’ affirmatively points out that he does he (Defendant’s Reply Memoran- alike. argue point.12 even 104). dum, 4,p. Dkt. worry. majority’s interpre- says that if Defendant Not to

Common sense alike, material fact tation of is to be Rodriguez do not look Indeed, argument. tape If the motion for new trial one, argued undecipherable, defense counsel rather it identifies no poor quality videotape of such “possibly” It no more identi- than someone. one could not rule out that it showed Rodri- Rodriguez-Gallegos than Paris Hilton. fies guez-Gallegos. particularly weak This is a Lehman, ed States merely Brady, must under (9th Cir.1986) (“We questions review these alone. Per- distracting, when considered of law de novo may affirm the district a majority’s idea is based on haps the any ground by the supported court on truth irrele- accuracy and are notion that (citations omitted)). But, record.” we have determining what considerations vant what, opportunity not had the to consider given the defendant arms should be any, if deference should be afforded to a joust. an more of even make the trial findings district court’s factual that bear may an uncommon notion That not be Brady materiality. presents on This case circles, support it has no in the certain but just squandered opportunity the now to do law, any obvious from the lack of as is that, adopt proper and to standard of citation to this view. buttress review. II. of our sister circuits which have Those question considered this in connection with A. Brady rulings afford deference to the dis- majority part company over First, findings fact. trict court’s of of review. The applicable standard Second, Third, Fifth, Seventh, Eighth, majority the district court’s factual affords Tenth, and Eleventh and the Circuits Unit- findings no deference. The fol- Appeals ed States Court of for the District legal as' to in- precedent lows our issues all of Columbia afford some level of defer- Brady materiality; such issues of a volving findings ence to district court’s factual Brady to be reviewed de novo. See Unit- materiality.13 on bearing law are Madori, sense, especially v. 419 F.3d in a case such as this. For- See United States Cir.2005) (2d ("Materiality get evidentiary in this context the 29 witnesses at the hear- 169 question ing; forget evidentiary hearing presents a mixed of law was an us with there then, judge's factual the motion for a new fact. While the trial conclu on trial. Before trial, during Judge Aspen of sions as to the effect non-disclosure are had for months heard, great weight, entitled to we examine the rec on end listened to witnesses—had had read, merely testimony, ord de novo to determine the evi not their and had whether they gave question dence is material as a matter of watched them as it. And he had law.”); Vallejo, jurors they United v. 297 F.3d observed the as listened to the States Cir.2002) (11th ("Similarly, judge long experience, a dis witnesses. A trial of developed impact trict court's denial of a motion for new trial he would have a feel for the Brady jury—and based on a violation is reviewed for of the witnesses on the how that discretion.”); Ryan, might impact United v. abuse of States have been different had the (8th Cir.1998) ("[Abuse government played by ap- 153 F.3d of the rules—that an where, court, applies pellate reading also discretion] standard confined to the tran- here, premised script,' duplicate. may a new Aspen a defendant seeks trial cannot mistaken; upon Brady might suspect claim. This deferential stan have been we mistaken; especially appropriate dard of review is in the he was but unless we are convinced mistaken, lengthy, hard-fought, highly context of a that he was we have no warrant to present charged (citing say like the case one.” reverse. That is what it means to Williams, appellate United States v. 81 F.3d review is deferential. It is not ab- (citations omitted)); (citations omitted)); (7th Cir.1996)) ject, United but it is deferential.” Thornton, (7th Boyd, Cir. States v. F.3d States United ("But Cir.1993) (“In 1995) (3rd judgments considering the other a district dis makes, judge signally ruling judgment trict here the on a motion for a new trial court's (or Brady piece pieces) whether some based on the failure to disclose materi- of als, government might wrongfully withheld we will conduct a de novo review of the changed if have the outcome district court’s conclusions of law as well as a disclosed of findings deferentially. 'clearly are to be reviewed This is erroneous' review of rule; only appropriate. it the dictate of fact where Where the district is common analyze legal is- typically Whereas we Appeals States Court the United As novo, explained: Brady has determination is of Columbia sues de for the District inevitably inquiry, involving a contextual the district this court reviews Generally, trial for abuse and fact. More- questions of a new of both law grant court’s However, confronted over, when intimately discretion. it intertwined with our re- legal question,” “purely with a proceedings: because the court present claims is de novo. view judge must the effect of the evidence Thus, situation. something special verdict, Brady decision jury’s the dis- by made findings as to of fact divorced from the narra- can never be court, including determinations trict of addition, In the court the trial. tive of and in both at trial credibility made the withheld simply must consider not would this court proceedings, post-trial isolation, quanti- in also the evidence but discretion stan- under an abuse of defer in the quality of other evidence ty and con- the existence But once dard. record. been evidence has of undisclosed tent rul- to a district court comparison mate- established, of the the assessment trial, appel- an a motion for new ing on Brady is a under riality of this evidence reviewing Brady a violation is late court the inquiry, In this of law. question Gauging disadvantage. at an inherent the is folded into prejudice of question that undisclosed evidence the effect a violation has of whether determination of the have had on the outcome might Supreme Court has As the occurred. event, it is in but is trial is difficult “strictly speaking, there explained, the ‘Brady violation’ unless more so when it must be based a real made never there so serious that judge, by non-disclosure was record. The district a cold sup- probability a reasonable is contrast, opportuni- had the has at least a produced have evidence would pressed testimony at trial first- hear the ty to Therefore, once verdict.” different hand, of the the demeanor wit- view violation, a new trial Brady court finds of the nesses, the ebb and flow observe remedy, not as prescribed the follows as the and evaluate at evidence a matter of discretion. govern- of the strengths and weaknesses Oruche, F.3d When, here, v. United States balance ment’s case. omitted) (citations (D.C.Cir.2007) 595-96 close, the out- presented is of evidence added). (emphasis hinge on a case will often come of the of the evaluation subjective personal Likewise, has ex- Circuit Fifth In such and the witnesses. plained: context, degree of defer- appellate some from the part stems in The confusion makes sense. Brady inquiry. ence of the mixed nature standard, non-disclosure prosecutorial legal its ed evidence applies the correct court deference.”); ordinarily accorded deference cases weighing the evidence merits Buchanan, 891 F.2d v. especially given United States Appeals, the Court of Cir.1989) (“We (10th review the factual measuring difficulty the effect inherent acting pursuant to findings court lengthy of a district of a on the course of a non-disclosure clearly erroneous § 2255 under covering many and exhibits.” 28 U.S.C. witnesses trial However, materiality with- (internal standard. quotation marks and citations omit- Sanchez, possible Brady and its ted)); under held evidence United States v. questions of ("Due are mixed (1st Cir.1990) inherently the verdict effect on to its (citations de novo." and law reviewed deter- fact the district court's fact—bound nature omitted)). materiality newly discover- on the mination reconciling evidence—including think there is a theme We undisclosed facially competing approaches in our to November 2000 surveillance video and Brady—based questions— new photographs derived therefrom—was a adhering to decisions that examine probability of a different result. reasonable anew, Brady question acknowl- while obligation state’s under “[T]he with defer- edging proceed we must Maryland to disclose evidence favorable underlying findings ence to the factual defense, turns on the cumulative effect gives the district court’s decision. This suppressed by of all such evidence play superior to the trial court’s under- government.” Kyles, 514 U.S. trial, evidence, standing wit- (citation omitted). Thus, S.Ct. al nesses, reviewing the while ultimate though tendency and forcé of undis question constitutional afresh. It also closed evidence must be evaluated “item recognizes that the new trial context item; way,” there is no other the mate respecting finality concerns are less riality a separate of such evidence is deter strong. mination, based on the effect of all the v. F.3d Sipe, United States 479 evidence, disclosed and Id. at undisclosed. (5th Cir.2004). Accordingly, n. 10. S.Ct. 1555 the I adopt would the standard of review majority explaining is correct in that when by our applied Specifically, sister circuits. considering whether non-disclosed evi I would defer to the district court’s factual dence would have created a reasonable erroneous, findings clearly unless “[b]ut result, probability judges of a different “ once the existence and content of undis- careful, must ‘undertake a balanced eval established, closed evidence has been strength uation of the nature and of both materiality the of the [treat] assessment the prevented evidence the defense was Brady question this evidence under [as] presenting from and the evidence each Oruche, Here, of law.” 484 F.3d at 595. ” Rae, presented at Bailey side trial.’ there concluding Judge is no basis for (9th Cir.2003) (quoting 339 F.3d “clearly in Carroll was erroneous” his find- (7th Pierce, Boss v. ing Jernigan’s appearance markedly is Cir.2001)). Rodríguez-Gallegos. different from that of however, majority, The conduct a fails to Indeed, majority suggest the does not even balanced evaluation of the non-disclosed finding a basis for According- such error. Specifically, evidence this case. in de- below, ly, as discussed there is no basis for termining Brady materiality majority finding the non-disclosure of the Novem- only considers the undisclosed circumstan- ber bank robberies was “material” under suggests Jernigan tial evidence that Brady.

Rodríguez-Gallegos are of similar appear- B. ance, i.e., descriptions. the witness majority fails to consider the direct evi- majority and I part company also establishing dence that Jernigan and Rod- majority’s willingness depart over the to ríguez-Gallegos “markedly are different” precedent requiring Brady materiali- i.e., in appearance, the November ty to be on the determined cumulative video, photograph of Jer- surveillance effect of the non-disclosed evidence. The nigan, majority’s herself. The majority considers the undisclosed witness failure to consider the last item comes as descriptions from the November robberies because, Carroll, surprise Judge no unlike Brady isolation and concludes viola- us, has never had the benefit of question tion occurred. The before however, seeing Jernigan in person. is whether cumulative effect ’ Rodri- bery that the establish requirement Kyles Freed from “markedly “item are different” evaluated guez-Gallegos evidence non-disclosed alike, whatev- materiality be deter- and “do not look appearance item” and all complexions effect of may be in their on cumulative similarities mined based er evidence, addition, its materi- majority rests In appearance.” Hispanic finding having on ality determination court found “someone district by a committed robberies were circumstances at them under these looked an uncan- bore description “whose woman such a able to make have been would Jernigan. ny physical resemblance” are not findings These determination.” erred, majority speculates thus Having Moreover, Judge Car- clearly erroneous. independently eyewitnesses who the five roll, observing Jer- who had the benefit committing Sep- Jernigan identified four-day of her nigan during course robbery “simply tember than this position in a better photospread out of the picked Jernigan re- whether to determine court looked the woman who she was because Rodriguez-Gallegos. sembles [Rodriguez-Gallegos].” like the most short, Car- would defer conduct a de novo findings, factual roll’s III. materiality Brady based review of the touchstone majority explains, As the findings, and affirm. Judge Carroll’s admission materiality whether would have suppressed “ of a probability’ ‘reasonable created a Kyles, 514 U.S. different result.” which prosecution, 1555. “[T]he undisclosed, must know what is alone can LINDA UNIVERSITY LOMA consequent responsibility assigned CENTER, MEDICAL likely of all such net gauge effect Plaintiff-Appellee, when and make disclosure evidence probability’ ‘reasonable

point v. (em- 437, 115 Id. at S.Ct. reached.” Secretary LEAVITT, Michael O. added). Here, “reason- point of phasis Services, Health and Human reached. The was never probability” able Defendant-Appellant. does in this case non-disclosed evidence probability of University not create reasonable Medical Linda Loma support because it does different result Plaintiff-Appellant, Center, eyewitness five who inference that the Jernigan as hav- independently identified Secretary Leavitt, of Health Michael O. 20, 2000 committed the ing Services, Defendant- Human so, To do robbery were mistaken. Appellee. would have the non-disclosed 05-56341, 05-56497. Nos. suffi- the inference permit such ciently Rodriguez-Gallegos resembles Appeals, Court United States for Rodri- could be mistaken Ninth Circuit. guez-Gallegos. 11, 2007. and Submitted June Argued statements, witness Notwithstanding the July Filed court the non-disclosed the district found from the surveillance taken photographs rob- 2000 bank

video

Case Details

Case Name: United States v. Jernigan

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jul 9, 2007

Citation: 492 F.3d 1050

Docket Number: 05-10086

Court Abbreviation: 9th Cir.