United States v. Price

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 05-30323
Plaintiff-Appellee,
v.  D.C. No.
CR-04-00364-MO
DELRAY PRICE,
Defendant-Appellant.


UNITED STATES OF AMERICA,  No. 06-30157
Plaintiff-Appellee,
v.  D.C. No.
CR-04-00364-MO
DELRAY PRICE,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding

Argued and Submitted
July 8, 2008—Portland, Oregon

Filed May 21, 2009

Before: Alfred T. Goodwin, Harry Pregerson and
Stephen Reinhardt, Circuit Judges.

Opinion by Judge Reinhardt

6039
6042 UNITED STATES v. PRICE

COUNSEL

Thomas H. Edmonds, Assistant United States Attorney,
United States Attorney’s Office for the District of Oregon,
Portland, Oregon, for the plaintiff-appellee.

Frank Noonan, Assistant United States Attorney, United
States Attorney’s Office for the District of Oregon, Portland,
Oregon, for the plaintiff-appellee.
 UNITED STATES v. PRICE 6043
Kelly A. Zusman, Assistant United States Attorney, United
States Attorney’s Office for the District of Oregon, Portland,
Oregon, for the plaintiff-appellee (argued).

Michael R. Levine, Portland, Oregon, for the defendant-
appellant (argued).

OPINION

REINHARDT, Circuit Judge:

Delray Price was convicted of being a felon in possession
of a firearm after Portland police officers found a gun hidden
beneath the driver’s seat of a car in which he was riding in the
rear. Although the government presented circumstantial evi-
dence that Price placed the firearm under the seat as the car
was being pulled over, the evidence that sealed his fate at trial
was testimony from a witness named Antoinette Phillips.
Phillips testified that approximately fifteen minutes before
Price was pulled over he was with her and some friends at her
aunt’s home when she saw a gun tucked into the waistband
of his pants. Price’s defense attorney vigorously attacked
other aspects of the government’s case at trial, but he could
not overcome this direct evidence of Price’s guilt. Price was
convicted and sentenced to nearly eight years in prison.

What Price and his attorney did not know is that Antoinette
Phillips has a lengthy history of run-ins with the Portland
police that suggests that she has little regard for truth and hon-
esty. In addition to being convicted of theft, she has been
arrested multiple times for shoplifting and police records
show at least one act of “theft by deception.” She has also
been convicted several times for fraudulently using false reg-
istration tags on her vehicle — a violation she continued to
commit after each conviction, stopping only when a frustrated
police officer finally scraped the false tags off of her license
plates himself.
6044 UNITED STATES v. PRICE
Price did not know about Phillips’ multiple acts of fraud or
dishonesty reflected in police reports, as well as in her police
record — and therefore could not impeach her with that infor-
mation — because the prosecutor never disclosed it to defense
counsel. Price’s counsel explicitly requested from the prose-
cutor “any evidence that any prospective Government witness
has engaged in any criminal act, whether or not resulting in
conviction,” but all he received was evidence of Phillips’ sin-
gle conviction for second-degree theft. It is not clear whether
the prosecutor himself ever possessed information that would
have revealed Phillips’ various acts of misconduct; at Price’s
new trial hearing, the prosecutor testified only that he did not
“have [a] specific recollection” as to what information he per-
sonally possessed. However, what is clear is that, regardless
of his own personal knowledge, the prosecutor utterly failed
in his “duty to learn of any favorable evidence known to the
others acting on the government’s behalf in the case, includ-
ing the police.” Kyles v. Whitley, 514 U.S. 419, 437 (1995)
(emphases added). There is no doubt that the prosecutor
instructed his lead investigative agent, a member of the Port-
land Police Department, “to run a criminal history check on
Ms. Phillips.” It is also beyond doubt that, in the prosecutor’s
own words, “the Portland Police Data System, generally will
reflect any police contacts that [an] individual has had.” How-
ever, as the prosecutor’s testimony further reveals, he did not
know or recall the results of the investigation that he directed
his agent to undertake. Rather, when asked if the agent had in
fact uncovered the details of Phillips’ criminal history, the
prosecutor could only respond, “He may have . . . . I can’t say
for sure.”

Under longstanding principles of constitutional due pro-
cess, information in the possession of the prosecutor and his
investigating officers that is helpful to the defendant, includ-
ing evidence that might tend to impeach a government wit-
ness, must be disclosed to the defense prior to trial. It is
equally clear that a prosecutor cannot evade this duty simply
by becoming or remaining ignorant of the fruits of his agents’
 UNITED STATES v. PRICE 6045
investigations. Because, here, the prosecutor failed to fulfill
his duty to learn of and disclose favorable evidence that likely
was in the possession of his lead investigating officer, and
because the evidence of Phillips’ criminal history is material,
we hold that the prosecutor violated Price’s rights under
Brady v. Maryland, 373 U.S. 83 (1963), and its progeny.
Accordingly, we reverse the denial of Price’s motion for a
new trial.1

I.

On the evening of March 6, 2004, Portland police officers
observed two young black men, whom they knew to be the
subjects of outstanding parole-violation warrants, riding in the
back seat of a two-door Plymouth Sundance that belonged to
a young woman named Rosie Lewis. Lewis was driving the
car, and one of her friends, Rebecca Jones, was sitting in the
front-passenger seat. Two officers pulled behind the car to
institute a stop while a third officer drove alongside it in a
separate, unmarked civilian vehicle. All three officers testified
that when the cruiser turned on its emergency lights, they
observed one of the two young men, appellant Delray Price,
who was seated behind the driver, bend over so that much of
his upper body was out of sight. All of the officers stated that
they believed Price was placing something underneath the
seat in front of him.
1
The appeal from the denial of Price’s motion for a new trial was con-
solidated with Price’s direct appeal in which he raises two trial-error chal-
lenges and also challenges the validity of his sentence. Because we grant
Price a new trial in appeal No. 06-30157, we dismiss as moot appeal No.
05-30323. See Felster Publ’g v. Burrell, 415 F.3d 994, 998 (9th Cir. 2005)
(“ ‘The test for mootness of an appeal is whether the appellate court can
give the appellant any effective relief in the event that it decides the matter
on the merits in his favor. . . .’ In [this] case, no such relief could . . . be[ ]
granted given that [the defendant] ha[s] already gotten the relief he sought
. . . .” (internal citations omitted) (quoting Garcia v. Lawn, 805 F.2d 1400,
1402 (9th Cir. 1986)).
6046 UNITED STATES v. PRICE
Once the car came to a stop and Price and the other back-
seat passenger were placed under arrest pursuant to their war-
rants, Officer Joseph Santos searched the car, concentrating
on the area beneath the driver’s seat where he believed Price
had hidden an object. According to his trial testimony, Officer
Santos first looked under the seat from the rear, but was
unable to see anything; however, when he reached under the
seat from the front, he felt a gun on the floor. The gun, he
later testified, was located behind a small lip that separated
the area beneath the front of the seat, which was most easily
accessible by the driver, from the area beneath the back of the
seat, which was most easily accessible by a passenger in the
rear. According to Officer Santos, he lifted the gun onto the
top of the lip — to a position equally accessible by both the
driver and the rear-seat passenger — so that it would be visi-
ble from his vantage point. He then took a picture of the gun
in its new position. Contrary to police department protocol
regarding the proper treatment of evidence, Officer Santos did
not take a picture of the gun in the position in which he claims
to have originally found it.

Six months later, Price was indicted on three federal felony
charges: being a felon in possession of a firearm, possession
with intent to distribute marijuana, and carrying a firearm in
relation to drug trafficking.2 We are here concerned only with
the felon-in-possession charge. Much of the government’s
case relating to that charge consisted of circumstantial evi-
dence, which Price’s counsel vigorously attacked.3 However,
the government introduced one central piece of direct evi-
dence to which Price’s counsel had no effective response.
2
When Price was arrested, the officers found multiple plastic bags on
his person that, altogether, contained approximately seven grams of mari-
juana. Despite this exceedingly small amount of marijuana, Price was
turned over to federal authorities who then decided to prosecute him for
drug trafficking.
3
We discuss this evidence and Price’s response to it in detail during our
discussion of prejudice. See infra Part II.B.
 UNITED STATES v. PRICE 6047
That evidence came from witness Antoinette Phillips who tes-
tified that she saw the gun that was ultimately retrieved from
the car sticking out of Price’s waistband minutes before he
entered the vehicle and shortly before the police pulled him
over. Phillips testified that she, her cousin, and the occupants
of the car, including Price, had all met at her aunt’s house ear-
lier in the evening and had planned to go to a movie. Accord-
ing to Phillips, while at the house Price was sitting in her
cousin’s room and, when he stood up, she saw the handle of
a gun in his waistband. When shown at trial the gun that was
retrieved from the vehicle, Phillips testified that the handle
looked the same as the handle of the gun she saw in Price’s
waistband.

Price’s attorney sought to impeach Phillips by challenging
her memory and her perception. He first asked her if she had
smoked marijuana before Price came over to her aunt’s house
and later asked if she could have possibly confused a cell
phone or pager for the handle of a gun. Although Phillips
admitted to having smoked marijuana earlier in the evening,
she responded to the latter line of questioning by simply reaf-
firming that what she saw in Price’s waistband “looked like
a gun to [her].” Price’s attorney made no effort to impeach
Phillips by challenging her honesty or truthfulness.

The prosecutor relied heavily on Phillips’ testimony in his
closing argument, stating to the jury, “[Y]ou have direct evi-
dence of an eyewitness who saw this [gun] sticking out of the
defendant’s waistband, and she took the witness stand, Antoi-
nette Phillips.” He dismissed defense counsel’s attempts to
question Phillips’ memory or perception by reminding the
jury that Phillips unequivocally stated “No, it wasn’t a pager.”
He then argued, “She knew what she saw . . . . [T]his item,
ladies and gentleman, is something that people are going to
remember seeing.” The prosecutor further relied on Phillips’
testimony to rehabilitate other aspects of his case-in-chief.
Although he acknowledged that Officer Santos’ method of
handling the evidence was “perhaps not perfect,” he told the
6048 UNITED STATES v. PRICE
jury that Santos’ account was “corroborate[d]” by the fact that
“Antoinette Phillips s[aw the defendant] with the gun 15 min-
utes before” Santos pulled him over. He also stressed her
veracity, telling the jurors “[Price] doesn’t have a reason for
why Antoinette Phillips would lie.”

After hearing all of the evidence and arguments, the jury
acquitted Price of the two charges related to drug trafficking,
but convicted him of being a felon in possession of a firearm.4
He was sentenced to ninety-two months in prison.

At no point prior to or during Price’s trial did either he or
his lawyer become aware of Phillips’ extensive history with
the Portland Police Department. These facts came to light
only after Phillips became a witness in a second case that
grew out of her testimony in Price’s prosecution. Immediately
after testifying against Price, Phillips claimed that she was
threatened outside of the courthouse by Price’s brother,
Saleem Muhammad. On the basis of her accusation, Muham-
mad was prosecuted for witness intimidation by the same
assistant United States Attorney who prosecuted Price. It was
in the course of that second case, after a hotly contested fight
over the need to reveal Phillips’ record, that the evidence of
her arrests for theft, the report of her theft by deception, and
her convictions for false-tag violations were revealed. In
Muhammad’s case, in which Phillips was the government’s
only percipient witness, the presiding judge, Judge Garr M.
King, allowed Muhammad to introduce portions of Phillips’
record in order to impeach her. That impeachment was evi-
dently successful: the jury failed to convict Muhammad.
4
Price was also convicted of simple possession of marijuana, a lesser
included offense of the indictment’s second count, for which he received
a concurrent sentence of three months in prison. The law permits the
United States Attorney to prosecute someone federally for possessing
small, personal-usage quantities of marijuana. Price does not raise any
challenges on appeal in relation to his conviction for simple possession.
 UNITED STATES v. PRICE 6049
Upon learning of the impeachment evidence introduced in
his brother’s trial, Price moved for a new trial in his own case
on the ground that the government violated the requirements
of Brady v. Maryland by failing to turn over evidence of Phil-
lips’ prior arrests, conduct, and convictions. The district court
held a hearing on Price’s motion. At that hearing, Price’s trial
attorney testified that, had he been aware of Phillips’ criminal
history, he would have “used that evidence to argue in [his]
closing argument that she cannot be believed because she’s
obviously got a problem with authority and . . . . that she [has]
total disrespect for abiding by the law and being honest.”5
After Price’s trial counsel concluded his testimony, the prose-
cutor presented his argument to the court. At the outset, he
stated that the “matter [of Phillips’ criminal history] was
inquired into by [his investigative] agent,” Detective Derek
Anderson, who “determined that she had some arrests and
some violation convictions.” The prosecutor next argued to
the court that he had in fact provided all of that information
to Price’s defense attorney prior to trial. Because Price’s trial
counsel had just testified under oath that he never received the
material in question, his new counsel objected to the prosecu-
tor’s attempt to introduce contradictory evidence through oral
argument. The district judge continued the hearing so as to
allow a second prosecutor from the United States Attorney’s
office to examine under oath the prosecutor who tried the
case.

When the trial prosecutor returned as a witness a few days
later, his story was very different. Now under oath, he aban-
doned his initial position that he had provided Price’s counsel
with the material underlying the Brady claim, stating instead,
“today I can’t say with any precision what precisely I told Mr.
Walker.” As to the question of what information regarding
Phillips’ history was known to his investigative agent, the
5
Price’s counsel on appeal, who also represented him at the new-trial
motion, is not the same attorney who represented him at trial and testified
at the new trial hearing.
6050 UNITED STATES v. PRICE
prosecutor also abandoned his prior statement that Detective
Anderson had “determined that [Phillips] had some arrests
and some violation convictions.” Instead, the prosecutor now
testified that he did not “have any recollection of the printout
that Detective Anderson was examining on [his] behalf” or of
what information the detective actually knew regarding Phil-
lips’ history with the Portland police. Further, the prosecutor
testified, “I don’t have [a] specific recollection . . . [as to]
whether I actually saw any[ of the materials] myself or
whether th[ey] w[ere] communicated to me in my conversa-
tions with my agent.” When asked on cross examination if
Detective Anderson’s investigation could have produced evi-
dence of Phillips’ “violation convictions” and investigations
for theft, the prosecutor conceded that it “might have.” In
response to further cross examination, the prosecutor testified
that “the Portland Police Data System [(PPDS)], generally
will reflect any police contacts that [an] individual has had”
with the police, and that Detective Anderson, who was both
a Portland Police Officer and a Special Agent with the Bureau
of Alcohol, Tobacco, and Firearms, had complete access to
the PPDS. Price’s counsel then asked whether Detective
Anderson had in fact accessed the PPDS while performing his
investigation on the prosecutor’s behalf. The prosecutor
responded, “He may have in this case. . . . I can’t say for sure
whether he had PPDS [information] in this case with Ms.
Phillips or not.”

After hearing argument, the district court ruled on Price’s
new trial motion from the bench. It first stated that, had the
evidence at issue been made available to Price at trial, it
would have allowed his counsel to use portions of it for pur-
poses of impeaching Phillips. Nonetheless, the court ruled that
Price had not established a Brady claim because he had failed
to demonstrate that the prosecutor personally had evidence in
his possession that would have revealed Phillips’ extensive
history. As an alternative ground, the district court held that
any failure to disclose the information was not prejudicial
 UNITED STATES v. PRICE 6051
under the standard laid out in Brady and its successor cases.
Price appealed.

II.

“A district court’s denial of a new trial motion based on
alleged Brady violations is reviewed de novo.”6 United States
v. Antonakeas, 255 F.3d 714, 725 (9th Cir. 2001). There are
three components of a Brady violation: “The evidence at issue
must be favorable to the accused, either because it is exculpa-
tory, or because it is impeaching; that evidence must have
been suppressed by the State, either willfully or inadvertently;
and prejudice must have ensued.” Strickler v. Greene, 527
U.S. 263, 281-82 (1999). There is no dispute that the first
component of a Brady violation exists in this case: Brady
encompasses impeachment evidence, and evidence that would
impeach a central prosecution witness is indisputably favor-
able to the accused. See Giglio v. United States, 405 U.S. 150,
154 (1972); see also, e.g., United States v. Blanco, 392 F.3d
382, 387 (9th Cir. 2004) (“Brady/Giglio information includes
‘material . . . that bears on the credibility of a significant wit-
ness in the case.’ ” (omission in original) (quoting United
States v. Brumel-Alvarez, 991 F.2d 1452, 1461 (9th Cir.
1993)). Our decision therefore turns on the two remaining
components of the Brady analysis.
6
While it is clear that the legal questions at issue in a Brady claim are
reviewed de novo, this circuit has not yet “had the opportunity to consider
what, if any, deference should be afforded to a district court’s factual find-
ings . . . .” United States v. Jernigan, 492 F.3d 1050, 1062 (9th Cir. 2007)
(en banc) (Bea, J. dissenting). Judge Bea provides a thoughtful analysis of
the question and concludes, after reviewing the practices of other circuits,
that an appellate court should accept a district court’s purely factual find-
ings — such as findings with respect to a witness’s credibility or the exis-
tence of a particular historical fact — unless such findings are clearly
erroneous; however, the question whether a defendant suffered prejudice,
also known in the Brady context as the question of “materiality,” is a legal
matter that we review de novo. Id. In this case, because our analysis does
not turn on the district court’s resolution of any purely factual questions,
we have no occasion to resolve the issue Judge Bea raises in Jernigan.
6052 UNITED STATES v. PRICE
A.

[1] As stated above, in order for a Brady violation to have
occurred, the evidence at issue “must have been suppressed
by the State.” Strickler, 527 U.S. at 281; see also Edwards v.
Ayers, 542 F.3d 759, 768 (9th Cir. 2008) (“Suppression by the
prosecution, whether willful or inadvertent, of evidence favor-
able to the accused and material to either guilt or punishment
violates the Constitution.”). The term “suppression” does not
describe merely overt or purposeful acts on the part of the
prosecutor; sins of omission are equally within Brady’s scope.
See Benn v. Lambert, 283 F.3d 1040, 1053 (9th Cir. 2002)
(“[T]he terms ‘suppression,’ ‘withholding,’ and ‘failure to
disclose’ have the same meaning for Brady purposes.”). We
perform this step of the inquiry “irrespective of the good faith
or bad faith of the prosecution” in failing to disclose favorable
evidence. Brady, 373 U.S. at 87. There is no allegation that
the trial prosecutor in this case acted willfully, maliciously, or
in anything but good faith — but an “innocent” failure to dis-
close favorable evidence constitutes a Brady violation nonethe-
less.7

[2] At the outset, we note that the district court’s ruling is
predicated on a clear misconception of the governing law. In
its ruling from the bench, the court held that no Brady viola-
tion occurred in this case because the prosecutor did not per-
sonally have in his possession the evidence of Phillips’ prior
arrests, conduct, and convictions. In ruling on Price’s new
trial motion, the district court stated that “the core of [a Brady
violation8] is the Government has to either intentionally . . .
7
“[T]he term ‘Brady violation’ is sometimes used to refer to any breach
of the broad obligation to disclose exculpatory evidence — that is, to any
suppression of so-called ‘Brady material’ — although, strictly speaking,
there is never a real ‘Brady violation’ unless the nondisclosure was [preju-
dicial].” Strickler, 527 U.S. at 281 (footnote omitted). We use the phrase
in the former, less technical sense here. We consider the issue of prejudice
in the next section of our analysis.
8
The district court used the phrase “negligent nonprovision” to describe
the alleged Brady violation, evoking our early Brady case law in which we
 UNITED STATES v. PRICE 6053
or through some kind of misunderstanding or negligence fail
to disclose what it has. Here most, if not all of what is alleged
to have not been disclosed wasn’t known [to t]he Government
— the prosecutor at least didn’t have it. So we don’t have [a
Brady violation].”9 The district court misunderstood the law.
The Supreme Court has clearly held that “Brady suppression
occurs when the government fails to turn over even evidence
that is ‘known only to police investigators and not to the pros-
ecutor.’ ” Youngblood v. West Virginia, 547 U.S. 867, 869-70
(2006) (per curiam) (quoting Kyles, 514 U.S. at 438). Accord-
ingly, the district court’s reliance on the prosecutor’s lack of
personal knowledge of the Brady material demonstrated a
clearly erroneous understanding of the law as it has existed at
least since Kyles v. Whitley, 514 U.S. 419, 438 (1995). See
also Giglio, 405 U.S. at 154; Jackson v. Brown, 513 F.3d
1057, 1073 (9th Cir. 2008).

[3] As the prevailing Supreme Court precedents make
clear, the district court should have considered whether the
government failed to disclose the relevant information in the
possession of any of its agents involved in Price’s prosecu-
tion, not just what the prosecutor himself personally knew.
The prosecutor’s initial statements at the new trial hearing
suggested that his agents were aware of the exculpatory infor-

used the phrase “negligent nondisclosure.” See United States v. Butler,
567 F.2d 885 (9th Cir. 1978). The negligent nondisclosure doctrine, how-
ever, was altered significantly when the Supreme Court held that the
Brady analysis is the same “regardless of [a] request” or lack thereof by
the defendant for favorable material. See Kyles v. Whitley, 514 U.S. 419,
433 (1995) (discussing United States v. Bagley, 473 U.S. 667, 682
(1985)). Accordingly, we have substituted the more current terminology
when quoting the district court so as to avoid confusion.
9
After making this statement, the district court promised to “take . . . up
in a moment” the question of Detective Anderson’s knowledge or posses-
sion of the relevant material. However, it never did so. It appears that, in
the course of issuing its oral ruling, the district court simply overlooked
the import of Detective Anderson’s role in the analysis.
6054 UNITED STATES v. PRICE
mation, as he stated that Phillips’ criminal history “was
inquired into by” Detective Anderson and that Anderson “de-
termined that she had some arrests and some violation convic-
tions.” If this statement is true, then our inquiry with regard
to the second Brady component is complete: “[E]xculpatory
evidence cannot be kept out of the hands of the defense just
because the prosecutor does not have it, where an investigat-
ing agency does. That would undermine Brady by allowing
the investigating agency to prevent production by keeping a
report out of the prosecutor’s hands until the agency decided
the prosecutor ought to have it . . . .” Blanco, 392 F.3d at 388
(quoting United States v. Zuno-Arce, 44 F.3d 1420, 1427 (9th
Cir. 1995)). Moreover, as we have previously held:

actual awareness (or lack thereof) of exculpatory
evidence in the government’s hands, . . . is not deter-
minative of the prosecution’s disclosure obligations.
Rather, the prosecution has a duty to learn of any
exculpatory evidence known to others acting on the
government’s behalf. Because the prosecution is in
a unique position to obtain information known to
other agents of the government, it may not be
excused from disclosing what it does not know but
could have learned.

Carriger v. Stewart, 132 F.3d 463, 479-80 (9th Cir. 1997) (en
banc) (citations omitted) (emphases added). Our holding in
Carriger drew directly from holdings of the Supreme Court,
which state that “[i]n order to comply with Brady, . . . ‘the
individual prosecutor has a duty to learn of any favorable evi-
dence known to the others acting on the government’s behalf
in th[e] case, including the police.’ ” Strickler, 527 U.S. at
281 (quoting Kyles, 514 U.S. at 437). Just as it “would under-
mine Brady [to] . . . allow[ ] the prosecutor to tell the investi-
gators not to give him certain materials unless he asked for
them,” Blanco, 392 F.3d at 388 (quoting Zuno-Arce, 44 F.3d
at 1427), it would equally undermine Brady for a prosecutor
to direct his investigator to perform an investigation and then
 UNITED STATES v. PRICE 6055
fail to discover the investigation’s full results. Accordingly, if
Detective Anderson did in fact know of Phillips’ “arrests” and
“violation convictions” as the trial prosecutor initially stated,
and if the prosecutor either failed to disclose the information
or failed to discover that his agent knew of or possessed it, a
Brady violation occurred.

The issue here is complicated, however, by the fact that the
record is not conclusive with respect to what information was
known to Detective Anderson or conveyed to the prosecutor.
The prosecutor’s initial statement to the court, in which he
stated that Detective Anderson actually “determined that
[Phillips] had some arrests and some violation convictions,”
is inconsistent with statements he gave under oath six days
later. When the prosecutor returned as a witness after the dis-
trict court continued the hearing on the new-trial motion, he
no longer stated that Detective Anderson had known of the
information underlying Price’s Brady claim. Instead, at the
second hearing, the prosecutor stated that he “d[id]n’t have
any recollection” of the information that Anderson possessed
or conveyed to him. In response to this change in position by
the prosecutor, Price’s attorney told the court that he “would
like to continue th[e] hearing [a second time in order to] sub-
poena and bring in Detective Anderson.” Unfortunately, no
such continuance occurred because the district court stated,
erroneously, that Anderson’s testimony was irrelevant to its
decision.10 Thus, while the prosecutor testified that Detective
10
By contrast, when the court believed that the record would be insuffi-
cient to support the denial of the new-trial motion without the prosecutor’s
testimony, the court insisted on a continuance and granted one sua sponte.
Although we need not pass upon the propriety of insisting on the first con-
tinuance while rejecting the second, we note that “[a] district court’s . . .
denial of a continuance is reviewed for abuse of discretion even where . . .
no motion for continuance [i]s made,” United States v. Orlando, 553 F.3d
1235, 1237 (9th Cir. 2009), and that “[a] trial court clearly abuses its dis-
cretion . . . if denial of [a] continuance was arbitrary or unreasonable,”
United States v. Torres-Rodriguez, 930 F.2d 1375, 1383 (9th Cir. 1991),
or predicated on a misunderstanding of the law. The latter is clearly the
case here.
6056 UNITED STATES v. PRICE
Anderson very well “may have” had all of the information
regarding Phillips’ history in his possession prior to trial,
there is no conclusive resolution of this factual question in the
record.

The suppression prong of Brady may be met, however,
even though a “record is not conclusive as to whether the
individual prosecutor[ or investigator] . . . ever actually pos-
sessed” the Brady material. Carriger, 132 F.3d 463 at 479.
The proponent of a Brady claim — i.e., the defendant —
bears the initial burden of producing some evidence to sup-
port an inference that the government possessed or knew
about material favorable to the defense and failed to disclose
it.11 Cf. United States v. Lopez, 534 F.3d 1027, 1034 (9th Cir.
2008); United States v. Brunshtein, 344 F.3d 91, 101 (2d Cir.
2003). Once the defendant produces such evidence, the bur-
den shifts to the government to demonstrate that the prosecu-
tor satisfied his duty to disclose all favorable evidence known
to him or that he could have learned from “others acting on
the government’s behalf.” Kyles, 514 U.S. at 437.

[4] In this case, Price has met his initial burden of produc-
ing some evidence supporting the inference that the govern-
ment failed to disclose favorable material. The record
contains sworn testimony from the prosecutor himself that
Detective Anderson “may have” had in his possession all of
the Brady material underlying Price’s claim, as well as that
Anderson was asked to investigate Phillips’ criminal history
11
If the record is conclusive that all relevant agents of the government
did not know about the Brady material, then, of course, no Brady violation
has occurred as the “government has no obligation to produce information
which it does not possess or of which it is unaware.” Sanchez v. United
States, 50 F.3d 1448, 1453 (9th Cir. 1995). This is not the case if the pros-
ecutor suspects that a witness has committed perjury. “When a prosecutor
suspects perjury, the prosecutor must at least investigate” further, consis-
tent with his “duty to correct what he knows [or suspects] to be false and
elicit the truth.” Morris v. Ylst, 447 F.3d 735, 744 (9th Cir. 2006) (citing
Napue v. Illinois, 360 U.S. 264, 270 (1959)).
 UNITED STATES v. PRICE 6057
and had access to a police database that contained that infor-
mation. In addition, the prosecutor at another point in the
hearing represented to the court that Anderson had in fact
investigated Phillips’ criminal history and had determined that
she had “arrests” and “convictions,” which were not disclosed
to the defense. The prosecutor’s performance in this regard is
troubling, and may, upon remand, warrant further inquiry by
the district judge. It is clear, however, that, whatever the truth,
the government has failed to demonstrate that the prosecutor
satisfied his constitutional duty to learn the results of Ander-
son’s investigation. Certainly, where the prosecutor states
either that he cannot remember or does not know what infor-
mation his agents relayed to him, the government’s burden is
not met. Allowing such convenient and conclusory testimony
to defeat a Brady claim would render a defendant’s right to
obtain Brady material meaningless.

[5] In this case, despite the fact that the prosecutor
instructed Detective Anderson “to run a criminal history
check on Ms. Phillips to” find information “that could be used
for impeachment,” and despite the fact that “the Portland
Police Data System generally will reflect any police contacts
that [an] individual has had” and was “available to Detective
Anderson,” the prosecutor stated under oath, “I can’t say for
sure whether [Anderson] had PPDS in this case with Ms.
Phillips or not,” “[h]e may have.” This testimony demon-
strates that, at the least, the prosecutor failed in his “duty to
learn” the results of the investigation he directed his lead
investigative agent to perform. Kyles, 514 U.S. at 437.
Because a prosecutor must fulfill this duty “[i]n order to com-
ply with Brady,” Strickler, 527 U.S. at 281, the prosecutor in
this case “may not be excused from disclosing what [he] d[id]
not know but could have learned,” Carriger, 132 F.3d at 480.
Accordingly, Price has satisfied the second component of the
Brady analysis.
6058 UNITED STATES v. PRICE
B.

[6] Having concluded that the first two components of
Price’s Brady claim have been met, we turn now to the final
issue: whether the failure to disclose the Brady material was
prejudicial.12 “The touchstone of [the prejudice analysis] is
whether admission of the suppressed evidence would have
created a ‘reasonable probability of a different result.’ ”
United States v. Jernigan, 492 F.3d 1050, 1053 (9th Cir.
2007) (en banc) (quoting Kyles, 514 U.S. at 434). As the
Supreme Court has stressed, it has “rejected a standard that
would require the defendant to demonstrate that the evidence
if disclosed probably would have resulted in acquittal.”
United States v. Bagley, 473 U.S. 667, 680 (1985) (citing
United States v. Agurs, 427 U.S. 97, 111 (1976)). Rather, the
Court has “defined a ‘reasonable probability’ as ‘a probability
sufficient to undermine confidence in the outcome’ ” of the
trial. Id. at 682 (citing Strickland v. Washington, 466 U.S.
668, 694 (1984)).

The government argues that only information that would
have been admissible at trial may be considered in our preju-
dice analysis. This issue was discussed in the Supreme
Court’s decision in Wood v. Bartholomew, 516 U.S. 1, 6
(1995) (per curiam), in which the Court held that the failure
to disclose the results of a polygraph test was not prejudicial
12
The prejudice analysis is often phrased in terms of “materiality.” See,
e.g., United States v. Jernigan, 492 F.3d 1050, 1053-54 (9th Cir. 2007) (en
banc). However, “[t]he terms ‘material’ and ‘prejudicial’ are used inter-
changeably in Brady cases. Evidence is not ‘material’ unless it is ‘prejudi-
cial,’ and not ‘prejudicial’ unless it is ‘material.’ Thus, for Brady
purposes, the two terms have come to have the same meaning.” Benn v.
Lambert, 283 F.3d 1040, 1053 n.9 (9th Cir. 2002). Somewhat confusingly,
the suppressed evidence underlying a Brady claim is itself often referred
to as “so-called ‘Brady material.’ ” Strickler, 527 U.S. at 281. We there-
fore use the term “prejudice” here so as to avoid the linguistic awkward-
ness that inheres in determining whether “Brady material” is or is not
“material.”
 UNITED STATES v. PRICE 6059
because the results were not admissible in evidence. As we
have previously stated in Paradis v. Arave, however, “[i]n
Bartholomew, the Court did not categorically reject the sug-
gestion that inadmissible evidence can be material under
Brady, if it could have led to the discovery of admissible evi-
dence.” 240 F.3d 1169, 1178 (9th Cir. 2001). While there
appears to be some disagreement as to Bartholomew’s scope,
see id. at 1178-79 (citing cases), this case, like Paradis, “does
not require resolution of that possible conflict.” Id. at 1179.
Regardless of whether inadmissible evidence is material
under Brady if its disclosure could have led the defendant to
discover favorable admissible evidence, “under Ninth Circuit
law ‘evidence is material if it might have been used to
impeach a government witness.’ ” Id. (quoting Carriger, 132
F.3d at 481).

Here, contrary to the government’s assertion, the nondis-
closed evidence of Phillips’ criminal history was admissible
for purposes of impeaching her testimony. The record demon-
strates that the following portions of Phillips’ criminal history
were not disclosed to Price: (1) three arrests for theft; (2) a
report of “theft by deception,” Or. Rev. Stat. § 164.085
(2007); and (3) three convictions for false-tag violations, also
known as “[i]llegal alteration or display of plates,” Or. Rev.
Stat. § 803.550 (2007). The government does not challenge
the conclusion reached by the district courts in this case and
in the related prosecution of Price’s brother, Saleem Muham-
mad, that Phillips’ false-tag convictions were admissible for
purposes of impeachment. Cf. Fed. R. Evid. 609(a)(2). As for
theft and theft by deception, the government argues that
because convictions for these acts would have been inadmissi-
ble under Rule 609 such acts therefore cannot be considered
in our analysis. Phillips, however, was not convicted of these
offenses, and our inquiry is therefore governed by Rule
608(b), not Rule 609. See United States v. Osazuwa, ___ F.3d
___, ___ No. 08-50244, slip op. at 5377 (9th Cir. 2009)
(“Rule 608(b) permits impeachment . . . by specific acts that
have not resulted in a criminal conviction. Evidence relating
6060 UNITED STATES v. PRICE
to impeachment by way of criminal conviction is treated
exclusively under Rule 609.”). Under Rule 608(b), “specific
instances” of a witness’s prior conduct may be admissible “in
the discretion of the court” for purposes of impeachment in
order to show a witness’s “character for truthfulness or untruth-
fulness.”13 Where the prosecution possesses or knows of
material favorable to the defendant that would be admissible
subject to the court’s discretion Brady requires that such
material be turned over to the defense. See United States v.
Van Brandy, 726 F.2d 548, 552 (9th Cir. 1984) (“[W]here
doubt exists as to the usefulness of evidence, [the prosecutor]
should resolve such doubts in favor of full disclosure . . . ”).
Here, the district court stated that it would have allowed
Price’s counsel to use at least some of the nondisclosed mate-
rial to impeach Phillips. Because all of the nondisclosed mate-
rial underlying Price’s Brady claim was potentially admissible
for purposes of impeachment, we consider all of that material
in determining whether the failure to disclose Phillips’ crimi-
nal conduct was prejudicial.14
13
We do not suggest that evidence of a witness’s prior thefts or other
dishonest conduct will always be admissible under Rule 608(b) or even
that it should ordinarily be admissible against a defendant in a criminal
trial. Moreover, the district court’s decision to admit such evidence must
not constitute an abuse of discretion. E.g., United States v. Scott, 74 F.3d
175, 177 (9th Cir. 1996). Specifically, where a defendant takes the stand
in his own defense, courts must be especially careful to weigh the value
of any evidence the prosecutor might adduce under Rule 608(b) against
the strong possibility that evidence of prior crimes will improperly preju-
dice the jury by causing it to believe that, if the defendant committed other
crimes, he is therefore more likely to be guilty of the crime for which he
is on trial. See Fed. R. Evid. 403, 404(b). In such instances, courts must
bear in mind that “Fed. R. Evid. 403 modifies . . . rule [608(b)] by provid-
ing that otherwise admissible and relevant evidence may be excluded if
the court determines that its probative value is substantially outweighed by
the danger of unfair prejudice.” United States v. Geston, 299 F.3d 1130,
1137 n.2 (9th Cir. 2002).
14
The prosecutor apparently also believed that he was only required to
turn over evidence of criminal convictions that he or his agent uncovered
in Phillips’ record. This is not so. “[I]t is the state’s obligation to turn over
 UNITED STATES v. PRICE 6061
[7] In determining whether the failure to disclose Brady
material undermines our confidence in the outcome of the
trial, we must weigh the withheld evidence “in the context of
the entire record.” Jernigan, 492 F.3d at 1053 (quoting Benn,
283 F.3d at 1054). Here the prosecution presented only three
items of evidence in support of the felon-in-possession
charge: testimony by the arresting officers that Price bent over
as the car came to a stop, testimony regarding the location of
the gun recovered from the vehicle, and Phillips’ testimony
that she saw the gun in Price’s waistband approximately fif-
teen minutes before his arrest. Price’s counsel’s questioning
significantly undermined the first two aspects of the govern-

all information bearing on [a government] witness’s credibility. This must
include the witness’s criminal record, including prison records, and any
information therein which bears on credibility.” Carriger, 132 F.3d at 480
(emphases added) (citation omitted).
For the benefit of trial prosecutors who must regularly decide what
material to turn over, we note favorably the thoughtful analysis set forth
by two district courts in this circuit:
[T]he ‘materiality’ standard usually associated with Brady . . .
should not be applied to pretrial discovery of exculpatory materi-
als. . . . [J]ust because a prosecutor’s failure to disclose evidence
does not violate a defendant’s due process rights does not mean
that the failure to disclose is proper. . . . [T]he absence of preju-
dice to the defendant does not condone the prosecutor’s suppres-
sion of exculpatory evidence [ex ante]. . . . [Rather,] the proper
test for pretrial disclosure of exculpatory evidence should be an
evaluation of whether the evidence is favorable to the defense,
i.e., whether it is evidence that helps bolster the defense case or
impeach the prosecutor’s witnesses. . . . [I]f doubt exists, it
should be resolved in favor of the defendant and full disclosure
made. . . . [T]he government [should therefore] disclose all evi-
dence relating to guilt or punishment which might reasonably be
considered favorable to the defendant’s case, even if the evidence
is not admissible so long as it is reasonably likely to lead to
admissible evidence.
United States v. Acosta, 357 F. Supp. 2d 1228, 1239-40 (D. Nev. 2004)
(emphasis added) (citing United States v. Sudikoff, 36 F. Supp. 2d 1196
(C.D. Cal. 1999)).
6062 UNITED STATES v. PRICE
ment’s case. On cross examination, counsel established con-
flicts in the arresting officers’ testimony: two officers said
that the defendant bent over only once, one officer testified
that he bent over twice, and a fourth government witness —
Rebecca Jones, who was in the car with Price — testified that
he did not bend over at all. Given these inconsistencies, Price
argued to the jury that the “bending over” story was a post
hoc fabrication that the officers invented after they found the
gun. As to the gun’s location in the car, Price’s attorney suc-
ceeded in raising serious questions regarding the probative
value of the testimony of Officer Santos as well as of the pho-
tograph taken by him. Santos admitted that he moved the gun
before photographing it and that doing so constituted a viola-
tion of police protocol. Another government witness agreed,
testifying that Santos’ admissions established that he handled
the evidence improperly. Moreover, Santos acknowledged on
cross examination that he did not mention to anyone that he
had moved the gun until two weeks before trial, during a
meeting with the prosecuting attorney.

[8] In contrast to the circumstantial evidence offered by the
arresting officers, including Officer Santos, as to which sub-
stantial doubt was raised as a result of defense counsel’s ques-
tioning, Phillips’ testimony provided direct evidence of
Price’s guilt and defense counsel was unable to seriously
challenge it on cross examination. Phillips was indisputably
“the prosecution’s star witness.” Carriger, 132 F.3d at 480.
As we have previously held, “[i]mpeachment evidence is
especially likely to be material when it impugns the testimony
of a witness who is critical to the prosecution’s case.” Silva
v. Brown, 416 F.3d 980, 987 (9th Cir. 2005). Moreover, while
Price’s counsel thoroughly challenged other aspects of the
government’s case, he was in no position to attack Phillips’
credibility. Instead, he simply offered a brief argument that
her memory was faulty and that she mistook a cell phone or
a pager for a gun handle.

[9] The jury had little reason to doubt Phillips’ memory and
absolutely no reason to question her truthfulness. The prose-
 UNITED STATES v. PRICE 6063
cutor exploited this in his closing argument, arguing that even
though Officer Santos’ method of handling the evidence was
“perhaps not perfect,” the jury could disregard infirmities in
his account because his testimony was “corroborate[d]” by the
fact that “Antoinette Phillips s[aw the defendant] with the gun
15 minutes before” Santos pulled Price over. The prosecutor
then further emphasized Phillips’ testimony by arguing to the
jury that a central weakness in Price’s defense was that he
“doesn’t have a reason for why Antoinette Phillips would lie.”
Of course, Price could not give the jury a reason to doubt
Phillips’ truthfulness because the government failed to give
him the evidence detailing her history of dishonest and fraud-
ulent conduct. Cf. Benn, 283 F.3d at 1056 (holding that Brady
material is especially likely to be prejudicial if it “would have
provided the defense with a new and different ground of
impeachment”); Silva, 416 F.3d at 989 (same).

[10] Had Price been able to discredit Phillips’ testimony,
there is a reasonable probability that he could have persuaded
the jury that there was a reasonable doubt as to whether the
gun found under the driver’s seat belonged to him. Indeed,
this was his defense at trial.15 Phillips’ testimony, however,
firmly established Price’s guilt and rendered his ability to
undermine other aspects of the government’s case of little
consequence. Had the evidence of Phillips’ past conduct been
disclosed, “there is a reasonable probability that the withheld
evidence would have altered at least one juror’s assessment”
regarding Price’s possession of the gun. Cone v. Bell, ___
S. Ct. ___, ___ (slip. op. at 2) (2009); see also Duncan v.
Ornoski, 528 F.3d 1222, 1245 (9th Cir. 2008). Accordingly,
because the evidence in question “would have affected the
trial in such a way as to undermine our confidence in the
jury’s verdict, we conclude that a Brady violation occurred.”
Bailey v. Rae, 339 F.3d 1107, 1109 (9th Cir. 2003).
15
Lewis, the driver of the car, planned to testify in Price’s defense that
the gun was hers, but moments before taking the stand she decided
instead, on advice of counsel, that she would exercise her Fifth Amend-
ment right against self-incrimination.
6064 UNITED STATES v. PRICE
III.

For the reasons stated above, we hold that Price’s due pro-
cess rights were violated when the government failed to dis-
close favorable evidence in a manner that was prejudicial to
the outcome of the case. Accordingly, the denial of Price’s
motion for a new trial is REVERSED and the case is
REMANDED for further proceedings consistent with this
opinion.