*1 credibility gauge time to some America, UNITED STATES
complainant). Plaintiff-Appellee majority’s characteriza- Contrary tion, I TNI knew or should do not think Tremayn ROBINSON, Randall to be known that Nichols needed Dirty Rob, known as also most, At TNI knew Paris saved. Defendant-Appellant. to Nichols but Nich- exposing himself No. 14-3503. the conduct so intoler- did not consider ols removal required that she immediate able of Appeals, Court mentioned, As already the truck. from Eighth Circuit. on she wished to remain Nichols told'TNI Jan. Filed: 2016. Paris until a different driver the truck with Rehearing Rehearing En Banc Additionally, prior to could be located. Denied Feb. 2016. mandatory for a to Paris’s residence going Paris rest and Nichols period, 34-hour Laredo, terminal Tex-
stopped at TNI opportunity not
as. Nichols did take the instead, truck; get she continued off Certainly, with Paris to his residence. “quit required not employee
an U.S.P.S., 142 quit.” Davis v.
want Cir.1998). However, her quitting
Nichols would not have been
job by off the truck Laredo getting Paris to his resi- accompanying
before during TNI was period.
dence the rest negligent construing Nichols’s as inconsistent with an
words conduct
employee requiring emergency action.
Finally, the harassment ended when request signed
TNI off on Nichols’s Loya rather than
team drive with Chris employers
Paris. Even when do act manner, ef
an ideal remedial action that
fectively ends harassment can be deemed Green, See
sufficient.
Accordingly, judgment I would affirm the
of the district court. *4 Short, argued, Rock,
Lee Deken Little AR, Appellant. for Gardner, AUSA, Anne E. argued, Little Rock, AR, Appellee. WOLLMAN, COLLOTON,
Before
and
KELLY,
Judges.
Circuit
WOLLMAN,
Judge.
Circuit
In June
Tremayn
Randall
Robin-
son,
Rock,
a
of
former officer
the Little
Arkansas,
(LRPD),
Department
Police
was
charged in a multi-count indictment with
distributing
pound marijuana
one-half
of
(Cl),
a confidential informant
conspiring
attempting
possession
and
to aid and abet
pounds
with intent
to distribute 1000
marijuana,
possessing a firearm further-
crime,
drug-trafficking
ance of a
and mis-
Cl,
for the
to conduct a con-
arranged
Cl
charges
The
stemmed
felony.
prisión
Robinson,
in his offi-
from
buy marijuana
trolled
allegations that
from
officer, provided
a
buy
with
LRPD
capacity
provided
cial
the Cl
$600
marijuana be-
shipments
protection
marijuana
money,
possession of the
took
in Little
drug traffickers
ing
delivered
buy
completed,
was
after the controlled
to trial on a
proceeded
Robinson
Rock.
police report
document-
prepared
and
indictment,
in July
superseding
It
this transaction
ing
events.
was
distributing one-
guilty
found him
mari-
the basis for Robinson’s
that formed
marijuana to a Cl but
half
pound
juana-distribution conviction.
remaining
to reach a verdict
unable
2013, after
first trial
In December
then
The
dismissed
counts.
marijuana-distribution
in the
had ended
count,
court1
and the district
the firearm
before his second trial be-
conviction but
remaining
on the
a mistrial
declared
filed motion for a
new
gan,
February
counts.
recently
had
learned that
indictment
trial. Robinson
superseding
in a third
charged
mistrial was
initiated
August
on which a
the LRPD had
an
with the counts
alleging that
new counts
investigation
discrepancies
declared
with
into
in LRPD
to commit and
telephone
used
he had
documentation filed
property-room
felony
that he had
drug
facilitate
in al-
investigation
resulted
Weaver.
to agents
material false statements
made
forged
sig-
had
legations that Weaver
*5
A jury found Robin-
of
States.
the United
on LRPD
property
natures of two
owners
making material false state-
guilty
son
of
2013,
February
receipts in
property-room
remaining
ments,
him on the
acquitted
but
indicating
falsely
that
had returned
The
court2 sentenced
district
counts.
when,
$9,000 in
to its
roughly
cash
owners
terms
to concurrent one-month
Robinson
instead,
presumably kept the cash
he had
of
on the two convictions.
imprisonment
investigators
lied to
for himself. Weaver
and we affirm.
appeals,
Robinson
questioned
about the inci-
when
argues
govern
that
Robinson first
dents,
asserting that he had re-
initially
evidence favorable
ment failed
disclose
cash
its owners
later
turned the
v.
Brady
of
to his defense
violation
recanting that statement: Weaver
83,
1194,
87, 83 S.Ct.
Maryland, 373 U.S.
2013,
September
LRPD in
by
fired
(1963),
and that
district
Weaver
of the prosecution
acting
was a member
evidence known to the others
on the
Weaver
and,
such,
knowledge
case,
his
government’s
including
team
behalf in the
was attributable to the
wrongdoing
police.”
own
Kyles,
514 U.S. at
Kyles Whitley,
v.
government. See
S.Ct. 1555. Such evidence is “material”
419, 437-38,
1555, 131
U.S.
115 S.Ct.
only if
probability”
there is a “reasonable
(1995).
argued
that,
disclosed,
L.Ed.2d
it
had
been
“the result of
material
im-
Weaver’s misconduct was
proceeding
would have been different.”
peachment
reasonably
evidence that
could
Greene,
263, 280,
Strickler
527 U.S.
Af-
have affected the outcome
his trial.
(1999)
1936, 144
(quot-
S.Ct.
L.Ed.2d 286
hearing,
ter
the district court denied ing
Bagley,
mony, because LRPD Rick Kis- Detective 1555). er, trial, who also testified at Robinson’s “[a] Because has personally had observed Robinson hand duty to disclose evidence known plastic-wrapped package the Cl a that was officers, if prosecu even not known proved pound later contain one-half tor,” prosecutor duty has an attendant marijuana. learn of such evidence. On appeal, Robinson reiterates his Bra- Tyndall, *6 arguments, asserting he that <%-violation duty This attendant to learn of material on marijuana- is entitled to a new trial the and favorable or exculpatory impeachment govern- distribution conviction because the necessarily anticipates evidence ment improperly suppressed material im- prosecutor opportunity will have an to dis peachment regarding evidence Weaver and through cover such evidence the exercise that he is entitled to a new trial on the diligence. of reasonable In a case such as false-statement conviction because the this, however, when the evidence at issue marijuana-distribution conviction obtained witness, aby is misconduct Brady in violation was introduced at his and that misconduct is unrelated to the trial to up government’s second shore the investigation prosecution of the defen weak otherwise case. dant, himself, only known is to the witness Brady progeny,
Under
and its
by
and could
been
discovered
prosecutors
duty
have a
to
prosecutor
disclose to the
through the exercise
reason
defense all material
to
diligence,
evidence favorable
able
we are reluctant to conclude
accused,
impeachment
including
such
imputed
evidence should be
to
exculpatory
Kyles,
prosecutor.
evidence. See
514
U.S.
See United States v. Rob
432-34,
1555;
inson,
(4th Cir.2010)
941,
115 S.Ct.
v.
627 F.3d
952
667, 676,
Bagley,
3375,
473 U.S.
105
(noting
S.Ct.
that courts have
to
refused
extend
(1985).
duty
997
worthy
in
knowledge and would trial that resulted
a verdict
underlying imputed
Strickler,
full interviews
confidence. See
527
at 289-
to do
U.S.
require prosecutors
90,
everyone who
alleged
—nied,
-,
evidence, including impeachment
U.S.
disclosed
(2014).
evidence,
purposes
is “material” for
L.Ed.2d 93
Evidence is admissible
Brady
404(b) if
reasonably be
Federal Rule of Evidence
only if it
taken
under
it
put
“could
(2)
“(1)
issue;
light
a different
relevant
to a material
the whole case
such
verdict.”
similar
kind and close in time to the
to undermine confidence
(3)
charged;
proven by preponder
Kyles, 514
S.Ct. 1555. crime
U.S.
(4)
evidence;
if
Here,
poten
was not the
officer to
ance of
Weaver
substantially
tial
out
drug buy
prejudice
does not
testify about
controlled
marijuana-distribu
probative
weigh
its
value.” United States
resulted
Thomas,
Cir.
conviction. As noted
the district
tion
2005).
court,
Kiser,
prior
assigned
distributing
who
A
conviction
Detective
404(b)
Rule
drugs
is “relevant under
conduct visual surveillance of
con
buy,
knowledge
Rob
and intent
commit a
trolled
testified that
observed
show
charge.of conspiracy
distribute
and the Cl
at the location for
current
inson
arrive
Horton,
being transported in the vehicle next argues dis following why he did not know trict court by abused its discretion declin had been asked to follow that vehicle in his ing hiring to recuse one Robinson’s This general-denial cruiser. defense attorneys as a former law clerk. Robin issue, placed Robinson’s state of mind son’s first trial was conducted Unit marijuana-dis- and evidence his earlier ed District Court States for the Eastern tribution conviction was relevant to show District knowledge. July by Judge Arkansas Moody, James M. who continued to over Robinson cites United v. Burk States 28, 2014, see the case until February head, (8th Cir.1981), in sup F.2d 1283 which time reassigned the matter was port argument because mar Judge Chief Brian S. in anticipation Miller ijuana-distribution resulting conviction of Judge Moody’s On retirement. March from his trial “a separate first count 5, 2014, Margaret Depper, “Annie” who on the same indictment” as the counts was employed at the time the law firm trial, charged at his second that conviction Robinson; representing an appear entered should hot have been In Burk- admitted. case, ance in Robinson’s but on April head, a conspiracy count was severed from granted she was leave withdraw. indictment, and the defendant was month, Sometime later that Judge Chief thereafter convicted after a trial on the Miller hired Depper as a law clerk. On remaining substantive counts. At the la 17, 2014, April Robinson filed a count, ter trial on the motion conspiracy gov requesting ernment sought Judge to introduce Chief Miller evidence of recuse Depper’s the earlier because underlying convictions status as Robinson’s for impeach substantive counts to mer the defen defense Judge counsel and Chief Mil dant. We held that the evidence was ler’s more current law clerk appear raised the prejudicial probative than and thus inad ance of impropriety. Robinson’s motion missible because the earlier convictions was denied a response without from the were based on substantive counts that hearing. and without a up made conspiracy. Id. at 1285. In We review the denial of a mo case, however, present Robinson’s first tion to recuse for abuse of discretion. See
conviction
on a
charged
was obtained
count
Ruff,
United States v.
472 F.3d
indictment,
in the superseding
while his
judge
A
must recuse when
second trial involved counts
charged
might
his “impartiality
reasonably
ques
superseding
Moreover,
third
indictment.
average
tioned
marijuana-distribution
person on
the street
convic
who
all
single
tion was
on a
knows
the relevant
buy
based
facts
a case.”
controlled
Clarke,
in August
(quoting
Id.
during which
Moran
*8
(8th
Cir.2002) (en banc)).
pound marijuana
distributed one-half
of
to
In
drug-related
Ruff,
the Cl. The
conspiracy
we found no abuse
in
and
of discretion
attempt charges set
forth
the third su
district court’s refusal to recuse when
perseding indictment,
hand,
on the other
the court’s law clerk—-the former federal
were based
facts unrelated to that
dis
who had participated in the
sale,
creet
involving instead “protection”
defendant’s prosecution
screened
—was
F.3d 1028
We will
and
not dis- 324
case
did
from the defendant’s
if no
only
reverse
reasonable
could
court.
id.
it
the district
See
cuss with
Martinez,
beyond a
guilty
v.
have found the defendant
1046;
States
also United
see
Cir.2006)
(8th
See
(rejecting
reasonable doubt.
id.
and
involving same court
arguments
same
prohibits an
Section 1001
individu
clerk).
that “an aver-
concluded
law
We
willfully
“knowingly
from
and
...
al
and
facts
the[]
informed
age observer
false, fictitious,
materially
mak[ing] any
or
of involvement
clerk’s] lack
law
[the
or
representation”
fraudulent statement
reasonably question
this
could not
case
any
jurisdiction
matter within
of the
Ruff,
F.3d
impartiality.”
[the court’s]
government.
general,
federal
a false
“[I]n
at 1047.
material
if it has a natural
statement
is
sup
to
filed motion
government
influence,
tendency
capable of
[is]
to
record,
grant,
we now
plement the
which
influencing, the decision of the decision
n. 4.
also Dakota Indus
id. at 1047
See
see
making body to which it was addressed.”
Inc.,
tries,
Sportswear,
v. Dakota
(citations
Inc.
Robertson,
ments as “material” in We L.Ed.2d 205 We for review abuse disagree. Robinson made false these of discretion a discretionary district court’s decisions, FBI in an statements effort such as whether to allow discov investigation deflecting influence its ery or evidentiary hearing hold an on a suspicion from himself. And Rob- allegation. because vindictiveness id. at See were, very inson’s false statements at the But for challenges unrelated these dis least, influencing” decisions, FBI’s “capable cretionary “we review the dis false, investigation, they “materially were legal trict court’s conclusions de novo and fictitious, or fraudulent or statements] findings its factual for clear error.” Id. representation[s],” required under Because challenging Robinson is not a dis § light 1001. Viewed in the most favor- cretionary court, decision the district verdict, jury’s able to the the evidence was our typically review would governed by support sufficient Robinson’s false- the de standard. But be -reovo/clear-error conviction. statement cause Robinson failed raise his vindic prior tiveness assertion to his second trial next argues false- by objecting to either the second third count, statement was charged which first superseding indictment in a motion to indictment, superseding the second was strike the charge false-statement or in a by prosecutorial motivated vindictiveness. indictment, motion to dismiss the entire we did not. file a motion to dismiss only review for plain error. See United prosecutorial vindictiveness either the Washburn, States v. 444 F.3d superseding second indictment or the third (8th Cir.2006) (applying plain-error review indictment, superseding which of course granted when district court defendant’s also included false-statement count. It motion to dismiss several counts second only the second-trial re- indictment, superseding mistrial was en guilty turned on its verdict that count that counts, on remaining tered supersed third Robinson filed a requesting motion ing counts, indictment reinstated dismissed “grant district court a new trial and defendant failed to object to third dismiss the conviction” because false- retrial). superseding indictment before statement count pursued “was as a result of prosecutorial On vindictiveness.” “Although appeal, parties argument frame the as may punish take action to a defendant for a challenge to the denial of a motion crime, committing a punishing a defen dismiss the on indictment basis for exercising dant legal rights valid prosecutorial vindictiveness, they ar- impermissible prosecutorial vindictive gue that the standard of review is abuse of ness.” United v. Campbell, States discretion. The defen
We recently finger “heavy” addressed dant bears the burden to show ing regarding “confusion” stan proper vindictive, prosecution dard of review district court rulings light of the prosecutors discretion giv are prosecution. vindictive States en in performing their duties. United (8th Cir.2015) Chappell, 779 F.3d Leathers, States Cir.2004). claim (discussing prosecutorial vindic A may prose defendant prove superseding tiveness when indictment se objective cutorial through vindictiveness cured appeal or, after successful both includes the absence such evi-
1001 881(citations omitted). dence, at For may, in rare instanc- F.3d “a defendant example, Rodgers, in es, rely a of vindictive- United States upon presumption jury acquitted a the on drug- if sufficient evidence to defendants provides ness charges possession likelihood of vin- and to reach a a reasonable failed [that] show conspiracy charge, 779 F.3d at verdict on a the Chappell, govern- exists.” dictiveness omitted). (citations indictments, Although superseding ment filed-two pre- conspiracy in- and “may prosecutors recharging adding arise when fire- sumption arm, severity aiding-and-abetting, multiple number of and dis- crease charges. just not because tribution 1427-28. charges,” it “does arise rejected We vin- action detrimental the defendant was defendants’ claims of dictiveness, noting the exercise of the defendant’s “additional taken after charges ... pres- brought the context must also were reindictment legal rights; following of a mistrial on the conspiracy ent a reasonable likelihood .vindictive- charge, 462. and not Campbell, ness.” F.3d because defendants government proceed initially by trial.” argues jury elected to in Id. at false-statement count added the superseding third indictments second and The false-statement count this case right to a only because invoked added response Robinson’s
jury eventually at his first trial and ob- trial, right jury of his to a assertion but mistrial on the most serious tained a jury after the had deadlocked and a superseding in the indict- charged counts mistrial was declared. The mistrial was ment. He asserts that because false- upon declared Robinson’s motion and no.t on the statement count was based same government’s objection, over the nor was it and underlying facts could been any of assertion of result Robinson’s earlier, he a charged has shown reason- legal right. (noting See id. “[e]ourts able likelihood of vindictiveness is en- prosecutorial will not find vindictiveness presumption titled thereof. a when the reindictment was not reaction right.” to the defendant’s assertion of some there have noted that is “no We omitted)). (citation although And ... realistic likelihood vindictiveness from false-statement count arose the same parties both when is deadlocked and general nucleus facts referenced in that, mistrial agree a declaration of is , earlier indictment that resulted a mistri- Rodgers necessity.” al, based on the false-statement count was Cir.1994). is Nor independent act separate a presumption there of vindictiveness FBI to the about those facts. lying “when the chooses indict a sum, provide has failed to suffi- defendant on individual acts arose out presumption cient evidence raise nucleus of which same facts resulted vindictiveness, and so the district court did acquittal.” (adopting in an earlier Id. rea Robin- plain rejecting not commit error in soning Esposito, States v. ground. son’s claim for relief on that (3d Cir.1992)). 303-07 This is so judgment affirmed. because, more, adding new “[w]ithout acts, charges independent based on even KELLY, Judge, concurring in Circuit prompted the' separate where the acts that dissenting in part part.. spree in the of. charges new occurred same I from the court’s activity, respectfully dissent presumption does create Lit- that the of former conclusion prosecutorial Chappell, vindictiveness.” (LRPD) Id. at Department thy De- of confidence.” tie Rock Police *11 was Charles Weaver’s misconduct tective to the defendant’s conviction not material was testimony problematic Kiser’s even marijuana was distribution. Weaver before evidence of Weaver’s misconduct gov- testified for the the main witness who was uncovered. Weaver did not witness charge, on this and his miscon- ernment drug between Cl and transaction the impeaching strongly duct was evidence. Robinson; only person Kiser who was defendant, LRPD offi- police The former testified at trial claimed to have done who Robinson, deprived was of a cer Randall Yet, testimony years so. Kiser’s four after being
fair
not
able to use it.
trial
fact
with a
re
police
was inconsistent
port
only
Weaver
a
wrote
week after the
sting
was the architect of the
Weaver
cross-examination,
buy.
controlled
On
against
operation
and he was
agreed
report
that his
indicated
Weaver
government’s primary
witness on the
simply
up,
instead that Kiser
saw
showed
marijuana-distribution
charge.
But
of a
with
pickup
“Robinson at the back
two
by his
months
department
was fired
two
men,”
.
away.
other
and then drove
taking money
after Robinson’s trial for
went
report
on to state that the Cl con
department’s property
from the
room and
tacted Weaver an hour after
exited
Kiser
signatures
rightful
of the
own-
forging
complex to
that
report
the transaction
ers, just a few months before he testified
complete.
said at
that
Weaver
trial
trial. This type
Robinson’s
of evidence
writing
he “made a mistake” when
his
directly
goes
to a law enforcement officer’s
“[tjhat’s
but
report,
admitted
what [the
credibility;
given
the nature of the
says.”
report]
presented generally against
evidence
Rob-
trial,
At
up
Weaver tried to clear
this
inson,
likely
gone
long way
it is
to have
a
inconsistency by testifying
he only
discrediting
testimony if
toward
Weaver’s
learned that Kiser witnessed Robinson’s
jury
had heard it.
handing
package
the informant a
after he
Detective,
Kiser,
LRPD
Another
Rick
typed up
report,
had
which was seven
testify that
drugs
did
he saw Robinson sell
days after the transaction. But Kiser tes-
(Cl).
to a confidential informant
But even
differently. Kiser
in
tified
claimed he was
if
testimony
Kiser’s
would
been
alone
have
during
contact with Weaver
the controlled
enough-
support
marijuana-
buy and told him in real-time
had
conviction,
distribution
that doesn’t mean
observed the hand-off. Given these dis-
that evidence of Weaver’s
misconduct
if
crepancies,
had been allowed to
not
“A
material.
defendant need not dem-
misconduct, may
hear about Weaver’s
it
discounting
inculpa-
onstrate
have discounted not
Weaver’s testi-
tory
in
light
the undisclosed mony, but
well.
Kiser’s as
Evidence
evidence,
there
would
have been
key
against
witness
fellow
enough left to
Kyles Whitley,
convict.”
in
pur-
case
officer
criminal
was himself
434-35,
514 U.S.
131 portedly
activity
involved in criminal
in
(1995). Thus,
question
L.Ed.2d
“[t]he
with police
might
connection
business
easi-
is not whether the defendant would more
badly
ly
reflected
on the Little Rock
likely than not
whole,
have received a different
Department
as a
Police
evidence,
extension,
verdict with the
but
credibility
whether
a mem-
Kiser’s
trial,
its absence he
a fair
received
under-
ber
department.
Kyles,
See
(“[T]he
resulting
a trial
stood as
a verdict wor- U.S. at
effec-
S.Ct.
eyewitness
tampering with evidence himself.
of one
can
impeachment
tive
short,
though
testimony
even
the attack
Weaver’s
was central
call
a new trial
”).
directly to
it is
government’s
others....
case. And
hard to
does not extend
signif
see how
introduction of evidence
of Weaver’s misconduct was
Evidence
icantly
credibility
impeaching his
would
just because of the weakness-
material not
“put
whole case
such different
testimony, but
es in
also because
Kiser’s
as to
light
undermine confidence
depended
case
on Weav-
government’s
435, 115
Id
verdict.”
S.Ct. 1555.
testimony
large
to a
extent.3 Much of
er’s
*12
concerning the sting opera-
the evidence
I
of
Because believe the evidence Weav
through
tion
came in
against Robinson
material,
er’s
I think
misconduct was
we
only
could
testimony
have
Weaver’s
cannot avoid
of whether
question
the
—and
testimony.
through his
come in
Weaver
subject
Brady’s
evidence is
to
disclosure
had the confidential infor-
was the one who
my view,
in
In
obligations
place.
the first
one
mant call
the
who identified
First,
Brady
of
application
it is.
the
does
phone,
voice over the
the one
depend
culpability
not
on
prosecutor’s
the
the informant and his car to
who searched
non-disclosure,
the
but
rather on
no
there
there was
contraband
make sure
the
deprived
whether
non-disclosure
the
buy,
prior
the controlled
and the one
to
of
defendant
a fair trial. See United
the
who
the cash for
informant to
provided
6,
97, 110
Agurs,
v.
& n.
States
427 U.S.
96
He
use in the transaction.
also testified
(1976)
2392,
(holding
Not (1982); Brady, 71 373 U.S. L.Ed.2d 78 custody who took that he was the officer White, 87-88, 1194; 83 S.Ct. Porter the from the Cl. then package Weaver Cir.2007) (“The (11th 1305 483 police it to the transported department Brady imposes rule a no-fault stan thus tagged, and stored it the “logged, If of care favor prosecutor. dard on the Department property Rock Police Little able, exclusively in the material evidence system.” Weaver testified he “sealed mfails tea prosecution hands the tamper tape,” the with evident evidence reason— whatever reach defense—for tape and “initialed and dated” across the subsequently is convict with, defendant tampered “to that if it was ensure ed, charged with a Bra prosecution is it’d the im- [him].” obvious Yet violation, is dy defendant entitled and the suggested would peachment evidence trial.”); ex to a new States rel. to the that Weaver was not a trust- Fairman, worthy department’s custodian of the Smith Cir.1985) room, (“Brady ensuring was aimed and that he not property above used, allegedly were ever intro- physical that were photographs or other evidence No government. buy, currency duced *13 no-fault, gime is and focuses on “assuring] 438, 1555); at Kyles, U.S. 115 S.Ct. 514 ” trial,’ the defendant a ‘fair not on (“[T]he assess- 437, U.S. at 115 1555 S.Ct. individ- ing the culpability prosecutor. the prosecutor duty ual any has a to learn of Jones, 596, United States v. 34 F.3d 600 favorable evidence known to the others fact that prosecu- acting government’s on the behalf in the tor was at fault does not case, change the police.”); including the see also fact that Marino, by Robinson was convicted a 378, D’Ambrosio v. 747 F.3d (6th that did not have access to Cir.2014); material evi- Osorio, United States v. dence, (1st Cir.1991) (“Ulti- depriving right him of his 753, to a fair 929 F.2d Kyles, 434, trial. mately, U.S. 115 S.Ct. regardless whether prosecu- 1555. tor is able to frame and enforce directives to investigative agencies respond to I why also see impeachment no reason candidly orders, to fully disclosure evidence involving misconduct that is not
responsibility for failure meet disclosure directly can Brady case-related never be obligations by will be assessed the courts Rather, evidence. the extent to which the office.”).4 against and his misconduct relates to the case is a factor— indeed,
It follows that State’s important “[t]he failure to an one—in determining evidence, exculpatory disclose whether including the undisclosed evidence is mate- evidence, impeachment in its possession example key rial. Take violation, Brady constitutes a irrespective trial witness who has admitted lying of the good faith faith of prose- or bad under oath to secure a conviction when cution, regardless of whether the in- testifying past numerous trials. Would only by formation is police known “unrelated” misconduct not cast seri- question I our investigators whether decision in prosecu and not to the Kern, States v. 12 F.3d Cir. suggested tor.” Kem knowledge also that the 1993), Brady which held apply does not may imputable of state officials not be to a to cases where the undisclosed evidence was prosecutor; federal but at the time of trial files,” prosecutor's not "in the can be recon FBI, assigned Weaver to the was and there is Supreme ciled with the Court's decision two no indication that this was not the case at the years Kyles, later in U.S. at alleged time of his misconduct a few months rejected the Brady which claim that Kern, earlier. at 126. 12 F.3d apply does to "evidence known trial, Ray explaining type on the fairness of as Annie doubt work ous Depper performs the misconduct occurred law clerk. The simply because other, Federal Although Appellate per- Weaver’s Rules of Procedure earlier trials?5 mit part investiga- supplementing appeal was not of his misconduct record fact that it oc- only anything into party “[i]f tion material to either trial just curred months before while is omitted from or misstated in the record in the course acting of his Weaver error or accident.” P. R.App. Fed. 10(e)(2). highly probative of official duties makes it Magistrate Judge Ray’s Chief credibility. letter was not omitted from the record accident; error or it did not exist when Straightforward application of the Su- It appeal was taken. would therefore be preme Brady case law would not Court’s for us to it this inappropriate consider impossible an place prosecutors posi- Instead, stage. I would that even hold likely It is a rare case where undis- tion.6 consulting without con- information clearly closed misconduct so affects the letter, tained Judge in the Chief Miller did credibility gov- of a witness central declining not abuse his discretion in case, or is material to the con- ernment’s recuse hired. Depper himself show, But as of this viction. the facts case Casas, See United States v. is not never. I would therefore find rare (1st Cir.2004) (“Judges are under no obli- is entitled to a new trial on that Weaver gation provide of reasons statement distributing approximate- his conviction omitted)). (quotation for recusal.” marks ly pound marijuana on August half 2009.7 join opinion I otherwise of the court. *14 respectfully disagree
I also with the government’s grant
court’s decision supplement the record with a
motion Magistrate Judge from Chief Thom-
letter
expresses
necessary
States v.
case”
even effective.
5. United
the con-
would
—or
Instead,
Brady imputa-
prose-
cern that unless the doctrine of