Unpublished Disposition, 848 F.2d 1243 (9th Cir. 1988)

MEMORANDUM^* 

This case is before us once again following our remand in United States v. Dupuy, 760 F.2d 1492 (9th Cir. 1985). During the original trial, the prosecution disclosed the existence of notes of interviews with co-defendants obtained with promises of confidentiality. The district court did not review the notes to determine whether they might constitute Brady material, and we held that such review was required. We remanded for that purpose.

On remand, the prosecuting attorney supplemented the notes with an affidavit stating in pertinent part:

Defendant Donley denied receiving any cocaine from defendant Buzard and denied using cocaine with Larry Jackson. In this respect, I consider Defendant Donley's statement may be "exculpatory Brady " as to Count XIX of the indictment because defendant Buzard's conviction on that count rests on Larry Jackson's testimony that defendant Donley received one-half ( 1/2) ounce of cocaine from defendant Buzard in Jackson's presence.... There was no information provided to me by defendant Collins that I consider to be "exculpatory Brady." Defendant Collins' recollection of the facts differ from Larry Jackson's on some details. Defendant Collins' statement may therefore be, in some respects, "impeachment Brady " where it differs from Jackson's testimony. In all major respects, defendant Collins' recollection corroborated Larry Jackson's trial testimony.

The district judge invited comments from both sides as to whether or not the notes contained Brady material, but confined his review to the notes, stating that he feld bound by our remand to exclude any consideration of the supplemental affidavit.

We do not believe our remand should have been so narrowly construed. The affidavit was submitted to supplement the notes, which were more sketchy than had been contemplated by the parties to the proceeding. Fairness to the defendants requires consideration of the materiality of the affidavit's allegations against the background of the trial record to determine whether there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceedings would have been different. See United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3384 (1985). For these same reasons, we deny the Government's Motion to Strike Documents Not of Record on Appeal. Especially when the Government itself proffered the affidavit to the district court, its argument that the affidavit is "beyond the scope of remand and irrelevant to the trial court's judgment from which this appeal lies" is specious.

On the face of the affidavit, the material appears to bear more heavily on Count 19, since it indicates evidence that would directly contradict the testimony of the principal government witness. Nonetheless, the district court should not exclude from consideration the possibility that the material relates to other counts as well.

The appellants are not entitled to a new trial simply because the original trial judge became incapacitated. The trial court judge should apply the appropriate legal standard pursuant to Fed. R. Crim. P. 25(b) in deciding whether a new trial is required. He need not grant a new trial unless he is satisfied that he cannot evaluate the affidavit's materiality without having heard the witnesses' testimony at trial, or unless he finds, for any other reason, that he cannot evaluate its materiality because he was not the trial judge.

REVERSED AND REMANDED.