United States v. Sipe

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
October 15, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk

No. 03-40657

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

versus

DAVID SIPE,
Defendant-Appellee.

Appeal from the United States District Court
For the Southern District of Texas

Before GARWOOD, HIGGINBOTHAM, and SMITH, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

Border Patrol Agent David Sipe was convicted after a jury

trial of using excessive force and causing bodily injury in the

arrest of Jose Guevara, a Mexican national attempting to enter the

United States illegally. Sipe sought a new trial, complaining that

the prosecution’s misrepresentations and nondisclosures rendered

the trial unfair. In particular, Sipe pointed to a false

representation by the prosecution regarding the extent of the

benefits provided by the government to three illegal aliens who

testified at trial, as well as the prosecution’s failure to produce

exculpatory evidence in violation of its obligations under Brady v.
Maryland.1 In two distinct rulings the district court agreed,

granting Sipe’s motion for a new trial. The district court pointed

to the cumulative effect of the prosecution errors and rested its

ruling on the “interest of justice” standard of Rule 33 of the

Federal Rules of Criminal Procedure and the court’s finding that

the prosecution committed numerous Brady violations.

We hold that the district court did not err in granting a new

trial. Although both the government and the accused make strong

arguments, we ultimately agree with the district judge who presided

over this five-day trial that the prosecution violated its Brady

duty by suppressing favorable material evidence, thereby

undermining confidence in the jury’s verdict. We affirm the grant

of a new trial.

I

A

On April 5, 2000, Sipe and his partner, Lorraine Gonzales,

were patrolling the border between the United States and Mexico, an

area near Penitas, Texas. Two other BPAs, Christopher Cruce and

James Smith, were also covering the same general area. At

approximately 4:00 a.m., both pairs of agents were alerted that a

sensor alarm had been triggered in the area, and they proceeded to

investigate. A second sensor was triggered approximately twenty

minutes later. A group of twelve to fifteen aliens who were

1
373 U.S. 83 (1963).

2
attempting to move through the area had triggered the sensors. One

of the aliens was Jose Guevara.

Because it was still dark, the agents, following standard

practice, turned their large hand-held flashlights on the aliens,

“lighting them up,” while shouting commands in Spanish to stop and

surrender. The aliens instead scattered and ran in various

directions, although most quickly stopped, waiting to be taken into

custody. Guevara and at least two others, however, fled to the

arrizo -- an area of heavy reeds that were both dense and taller

than the aliens and agents. Crouching on his knees in the reeds,

Guevara remained motionless for approximately two minutes before

Sipe discovered him.

What happened next is disputed. The other two aliens hiding

in the reeds, Nehemias Diaz and Evarado Sanchez, became government

witnesses, but only with substantial benefits.2 According to their

story, Sipe struck Guevara with his flashlight on the back of the

head. They testified that Guevara did not resist or yell out and

that his scalp was cut by one of the blows. Sanchez claimed that

he saw Guevara squatting alone and motionless just before Sipe

struck Guevara at least twice with a flashlight and that Guevara

was bleeding after the blows. Diaz, who was slightly farther away

from Sanchez, claims to have seen Sipe swing his flashlight three

times, striking something in the reeds.

2
See infra, Part C4.

3
 Agent Cruce headed into the brush to assist Sipe. When Cruce

was a few feet away from Sipe, he saw Sipe on top of Guevara, who

was lying on the ground face down and was not struggling. Another

of the agents, Agent Smith, could not see Sipe but heard him say

words like “is that enough” or “have you had enough.” Cruce heard

movement in the brush nearby and, suspecting more aliens were

hiding there, called out for them to stand up.3 Sanchez and Diaz

complied. Sipe -- saying nothing about a possible injury to

Guevara – offered to escort Sanchez and Diaz to the van.

When Sipe left, Cruce and Smith found Guevara kneeling,

holding the back of his head with his right hand. He was bleeding

from a cut in his scalp. Smith ordered Guevara to stand up, but

Guevara did not respond immediately. Rather, he appeared to have

the dry heaves.4 Cruce yelled for Sipe to return to the area.5

Sipe reached BPA Gonzales with Sanchez and Diaz just before

Cruce called for him. According to Gonzales, Sipe appeared calm

3
It bears mentioning that Agent Cruce could not see Diaz or Sanchez until
they stood, even though they testified that they could see Sipe.
4
Whether this apparent episode of “dry heaves” was real or feigned to
distract the agents and allow escape to the nearby river was disputed. The injury
did not prove to be more than the cut. Evidence was introduced that scalp wounds
bleed profusely, and it was undisputed that Guevara was angry and attempted to
protest his treatment by rubbing blood on the government vehicle, refusing the
assistance of the agents, including Sipe, who was trained as a medic.
5
At trial, conflicting explanations were offered for Cruce’s apparent
“anger” with Sipe. The defense suggested that Cruce bore Sipe a personal
animosity and seized on the moment to put Sipe in a bad light. The prosecution
suggested that Cruce was upset both because Sipe used excessive force and because
he left the injured Guevara with Cruce while taking charge of two other aliens,
even though Sipe had medical training. These conflicting inferences from Cruce’s
behavior only emphasize the materiality of the evidence withheld by the
prosecution regarding the relationship between Cruce and Sipe.

4
and made no mention of any confrontation with Guevara. When Sipe

returned to the brush where he had encountered Guevara, Sipe did

not appear to be aware that Guevara was injured. Sipe told Cruce

and Smith that he hit Guevara’s leg with his flashlight because

Guevara was running away from him, and that he used force to

protect himself from a possible assault with a knife or other

weapon when Guevara resisted.

Guevara walked to the Border Patrol vehicle. His scalp was

bleeding and he was angry, refusing the offer of aid by Sipe and

other agents. Sipe told Gonzales, who was at the vehicle with

other aliens, that he hit Guevara both in the hip and in the head.

A short time later, Guevara was taken to a doctor to have his cut

sutured.

The following day, the BPA assigned Agent Garcia to work with

Sipe. Sipe told Garcia that he hit an alien the night before in an

effort to slow him, striking him with his flashlight on his head,

the part of his body closest to him. When he was on the alien’s

back, he hit the alien again because the alien would not give up

his hands and was resistant and uncooperative. Garcia said Sipe

did not appear upset about the incident. Rather, he did not

understand why he was being investigated.

B

On November 24, 2000, Sipe was indicted on one count of

violating 18 U.S.C. § 242 by using excessive force. Before trial,

he filed motions seeking the production of exculpatory and

5
mitigating evidence.6 In particular, he asked for (1) the criminal

records of any witnesses in the case; (2) what benefits the

government had given the aliens; (3) the names of persons

interviewed by the government; and (4) all exculpatory and

impeaching Brady and Rule 16 evidence. The government complied by

producing a number of items of evidence, including Cruce’s grand

jury testimony, in which Cruce stated under questioning that he did

not dislike Sipe. The United States also advised that it was

unaware of any criminal convictions of any witnesses to be called

at trial. Finally, the government informed Sipe that the three

testifying aliens -- Diaz, Guevara, and Sanchez -- had been allowed

to remain and work in the country pending trial, but “no other

promises or advantages” had been given.

The case proceeded to trial on March 19, 2001. According to

Sipe, it became evident early in the proceedings that the

government’s disclosure was incomplete.7 At trial, witnesses

6
18 U.S.C. § 242 provides, in pertinent part, that any person who, under
color of law, deprives any alien of any rights, privileges, or immunities
protected by the Constitution or federal law “on account of such person being an
alien,” shall be fined or imprisoned.
7
Sipe provides two examples of the government’s inadequate disclosure,
although neither forms a direct basis of this appeal. First, the government
sought to introduce a photograph that the defense was never given. Second, the
government failed to notify the defense that, following Sipe’s indictment, Border
Patrol agents caught Guevara escorting two other illegal aliens. The agents
chose not to arrest Guevara when he showed them a card given to him by
prosecutors. The court found no Brady violation because the defense learned of
the stop independently, but the court expressed its concern over the role one of
the agents, Agent Mercado, played in Guevara’s release. Mercado had testified
that the decision to release Guevara was based on objective guidelines, not on
a desire to influence his testimony. But the defense learned from an unknown
informant that Mercado was related to Guevara’s boss, Leonardo Ramirez, a known
trafficker. The prosecutors protested that there was no credible evidence

6
recounted the events we have detailed. In addition, BPAs Cruce,

Smith, Gonzales, and Fortunato testified that during their years of

service, they seldom needed to use “intermediate force” to subdue

an alien or to defend themselves. They noted that all agents are

taught not to strike a person’s head or face unless deadly force is

necessary. After a five-day trial, the jury found Sipe guilty of

violating 18 U.S.C. § 242 by using excessive force.

Following the verdict, the Presentence Report became a source

of controversy when it became apparent that the government had

disclosed information to the probation officer that it did not

disclose to the defense. Sipe was first alerted to the government’s

nondisclosures by a statement in the PSR indicating that Cruce

disliked Sipe. Sipe immediately complained that this statement was

contrary to Cruce’s grand jury testimony. The government traced

the source of the probation officer’s statement in the PSR to a

Prosecution Memorandum that was prepared by the line attorney

assigned to the case. The memorandum stated in relevant part:

Cruce admits to disliking the subject [Sipe]
even before this incident. Cruce said that
[Sipe] has an abrasive personality, keeps to
himself, and is generally disliked by most of
the other agents.

connecting Ramirez and Mercado, but eventually admitted that they knew about a
“distant” relationship between the two men. When Mercado was recalled to the
stand, he revealed that Ramirez was his uncle. Mercado testified that he had
informed the two government attorneys about the relationship the week before he
testified the first time.

7
Sipe moved for the production of the government’s entire

investigative file. After reviewing the material produced, Sipe

identified four additional pieces of exculpatory or impeachment

information that the government had failed to provide.

First, Sipe discovered that the government had taken several

photographs of the arrest scene. Guevara himself is in the

photographs, apparently posing to demonstrate where he was located

in the reeds when Sipe struck him. Second, Sipe learned that

Alexander Murillo, one of the government’s witnesses, had a

criminal history. Specifically, Murillo had been charged in the

past with filing a false police report, theft, and harassment,

although there had been no convictions. Third, Sipe learned that

the government interviewed one Herica Rodriguez before trial.

Rodriguez, one of Sipe’s fellow EMT students, told government

investigators that Sipe was a “nice person” and that she did not

hear him make any statements suggesting that he disliked or

disrespected aliens.

Finally, despite the government’s written assurance to the

defense that the only benefit given to the testifying aliens was

permission to remain and work in the United States pending trial,

Sipe learned that the aliens received numerous other benefits from

the prosecutors. For example, they were given Social Security

cards, paid witness and travel fees, allowed to travel to and from

Mexico to visit family, permitted to travel to North Carolina to

work, and allowed to use government phones to contact relatives in

8
Mexico. The failure of the government to divulge this information

cast two other prosecutorial nondisclosures in a new light. First,

Sipe discovered that the two aliens in the brush with Guevara,

Sanchez and Diaz, who testified at trial, had been living with

Guevara and his wife during the months before trial. They had

testified at trial that they did not know Guevara before the

fateful crossing, supporting the government’s portrayal of Guevara

as a poor illiterate with only one hand who was crossing in search

of work, meeting up with them only by happenstance. This evidence

countered defense suggestions that Guevara was not a migrant worker

but a “coyote,” an oftentimes dangerous transporter of illegal

aliens who was engaged in leading Sanchez, Diaz, and others across

the border. Relatedly, the government failed to disclose that

before trial, Guevara was intercepted by Border Patrol agents in

the company of illegal aliens and that the arresting agents

released Guevara when he displayed a card given to him by

prosecutors. Since Guevara had been granted free passage in his

deal with the government, his arrest with illegal aliens was

evidence that he was a transporter, as well as evidence of the

extent of the government’s support accorded him in order to obtain

his testimony. As the defense termed it, Guevara was given a “get

out of jail card.”

Armed with this newly discovered evidence, Sipe supplemented

his Rule 33 motion for a new trial. After a hearing, the district

court granted his motion. The district judge cited two distinct

9
grounds for his decision: the prosecution’s Brady violations, and

the interest of justice under Rule 33. In an oral ruling from the

bench, he noted that in his twenty plus years on the bench, he had

never granted a Rule 33 motion. He explained:

I don’t . . . make this decision lightly. It
is the Court’s view that in the interest of
justice, [Sipe’s motion for a new trial]
should be granted. And also there is a
reasonable probability that had the evidence
been disclosed to the Defense, the result of
the proceeding would have been
different . . . . And that’s the standards --
those are the standards the Court has used
here.

That the district court was addressing both the Brady

contention and the fundamental fairness of the trial under Rule 33

is plain. The Judge expressed his disquiet at the withholding of

the evidence concerning Cruce’s stated dislike of Sipe, the effect

of the government support given to the aliens upon their

reliability, and their evolving testimony. Moreover, the trial

court found that their trial testimony at times was not only

contrary to statements they made to the government before the

benefits were given, the testimony was also challenged by the

physical fact that Diaz and Sanchez could not in all likelihood

have seen Sipe and Guevara through the dense canebrake. Indeed,

the court asked at trial, “How could you -- how could people have

really seen what was going on here . . . ?” These discrepancies

stood in stark contract to the unchallenged fact that Sipe had made

hundreds of arrests as a border patrol agent without complaint and

10
the complete absence of evidence that Sipe had previously used

excessive force.

Specifically with regard to Sipe’s Brady claim, the trial

court focused on five pieces of withheld evidence: (1) the

statement in the Prosecution Memorandum regarding Cruce’s dislike

for Sipe; (2) documentation concerning the prior criminal history

of Alexander Murillo, a government witness; (3) a summary of an

interview with Rodriguez, who stated that Sipe was a “nice person”

who had not, to her knowledge, evidenced disrespect for aliens; (4)

information regarding additional benefits provided by the

government to the testifying illegal aliens; and (5) the

photographs in which Guevara reenacts his actions the night of his

capture. The court ultimately concluded that this evidence was

improperly withheld and that a new trial was justified.

II

On appeal, the government focuses exclusively on the district

court’s Brady determination. The government contends that none of

the information withheld from Sipe constitutes Brady material

because it was not favorable, was not withheld, and was not

material. In addition, the government asserts that, even if some

or all of the evidence is Brady material, its cumulative effect

does not undermine the jury verdict because none of the evidence

bears directly on the central issue in the case -- whether Sipe

used excessive force.

11
 Although we recognize that this is an extremely close

question, we agree with the district court that the prosecution

violated its duty under Brady to disclose exculpatory information.

We are particularly troubled by the prosecution’s affirmative

misrepresentation concerning the scope of the benefits provided to

the testifying aliens and its failure to divulge evidence that its

star witness, Agent Cruce, personally disliked Sipe. While the

record unquestionably contained significant evidence of Sipe’s

guilt, the prosecution’s withholdings prevented Sipe from exposing

significant weaknesses in the government’s case at every turn.

Even if none of the nondisclosures standing alone could have

affected the outcome, when viewed cumulatively in the context of

the full array of facts, we cannot disagree with the conclusion of

the district judge that the government’s nondisclosures undermined

confidence in the jury’s verdict. We find no error in the grant of

a new trial under these facts.

A

In Brady v. Maryland, the Supreme Court explained that “the

suppression by the prosecution of evidence favorable to an accused

upon request violates due process where the evidence is material

either to guilt or to punishment, irrespective of the good faith or

bad faith of the prosecution.”8 To establish a Brady violation, a

defendant must make three showings: “The evidence at issue must be

8
Brady, 373 U.S. at 87.

12
favorable to the accused, either because it is exculpatory, or

because it is impeaching; that evidence must have been suppressed

by the State, either willfully or inadvertently; and prejudice must

have ensued.”9

The final prong of this test involves determining whether the

concealed evidence is material.

[T]he materiality inquiry is not just a matter of
determining whether, after discounting the inculpatory
evidence in light of the undisclosed evidence, the
remaining evidence is sufficient to support the jury's
conclusions. Rather, the question is whether “the
favorable evidence could reasonably be taken to put the
whole case in such a different light as to undermine
confidence in the verdict.”10

When there are a number of Brady violations, a court must analyze

whether the cumulative effect of all such evidence suppressed by

the government raises a reasonable probability that its disclosure

would have produced a different result.11

“The materiality of Brady material depends almost entirely on

the value of the evidence relative to the other evidence mustered

by the state.”12 Thus, “when the undisclosed evidence is merely

cumulative of other evidence [in the record], no Brady violation

9
Strickler v. Green, 527 U.S. 263, 281-82 (1999).
10
Id. at 290 (quoting Kyles v. Whitley, 514 U.S. 419, 434-35 (1995)).
11
Kyles, 514 U.S. at 421-22 (1995); United States v. Freeman, 164 F.3d
243, 248 (5th Cir. 1999).
12
Smith v. Black, 904 F.2d 950, 967 (5th Cir. 1990), vacated on other
grounds, 503 U.S. 930 (1992).

13
occurs.”13 Similarly, when the testimony of the witness who might

have been impeached by the undisclosed evidence is strongly

corroborated by additional evidence supporting a guilty verdict,

the undisclosed evidence generally is not found to be material.14

Conversely, if the impeaching evidence “would seriously undermine

the testimony of a key witness on an essential issue or there is no

strong corroboration, the withheld evidence has been found to be

material.”15 However, the State bears no responsibility to direct

the defense toward potentially exculpatory evidence that is either

known to the defendant or that could be discovered through the

exercise of reasonable diligence.16

B

In general, we review a denial or grant of a criminal

defendant’s motion for new trial for an abuse of discretion.17

There is some confusion in our circuit, however, regarding whether

we apply an abuse of discretion standard when a new trial is

granted because of Brady violations. In some cases, we have

13
Spence v. Johnson, 80 F.3d 989, 995 (5th Cir. 1996).

14
Wilson v. Whitley, 28 F.3d 433, 439 (5th Cir. 1994).

15
United States v. Weintraub, 871 F.2d 1257, 1262 (5th Cir. 1989).

16
Rector v. Johnson, 120 F.3d 551, 558-59 (5th Cir. 1997).
17
Pryor v. Trane Co., 138 F.3d 1024, 1025-26 (5th Cir. 1998); United
States v. Robertson, 110 F.3d 1113, 1118 (5th Cir. 1997)

14
conducted a de novo review,18 while in others we have asked only

whether the district court abused its discretion.19 Our sister

circuits are equally divided on the subject.

The confusion stems in part from the mixed nature of the Brady

inquiry. Whereas we typically analyze legal issues de novo, a

Brady determination is inevitably a contextual inquiry, involving

questions of both law and fact. Moreover, it is intimately

intertwined with the trial proceedings: because the court must

judge the effect of the evidence on the jury’s verdict, the Brady

decision can never be divorced from the narrative of the trial. In

addition, the court must consider not simply the withheld evidence

in isolation, but also the quantity and quality of other evidence

in the record.

In comparison to a district court ruling on a motion for new

trial, an appellate court reviewing a Brady violation is at an

inherent disadvantage. Gauging the effect that undisclosed

18
See, e.g., United States v. Runyan, 290 F.3d 223, 246 (5th Cir. 2002);
United States v. Hughes, 230 F.3d 815, 817 (5th Cir. 2000); United States v.
Gonzales, 121 F.3d 928, 946 (5th Cir. 1997); United States v. Dixon, 132 F.3d
192, 199 (5th Cir. 1997); see also United States v. Lee, 88 Fed.Appx. 682 (5th
Cir. 2004) (unpublished). Each of these cases relies for support on either
United States v. Green, 46 F.3d 461, 464 (5th Cir. 1995), or Felder v. Johnson,
180 F.3d 206, 212 (5th Cir. 1999). Both Green and Felder state that we review
Brady determinations de novo, but both cases arose in a distinct procedural
posture: Green did not involve a motion for a new trial, and Felder was a habeas
case.

19
See, e.g., Burton v. United States, 237 F.3d 490, 493 (5th Cir. 2000);
United States v. Cisneros, 112 F.3d 1272, 1277-78 (5th Cir. 1997); United States
v. Shugart, 117 F.3d 838, 847-48 (5th Cir. 1997); United States v. Williams, 985
F.2d 749, 757 (5th Cir. 1993); United States v. Burns, 668 F.2d 855, 859-60 (5th
Cir. 1982); see also United States v. Nix, 84 Fed. Appx. 415 (5th Cir. 2003).

15
evidence might have had on the outcome of the trial is difficult in

any event, but it is made more so when it must be based on a cold

record. The district judge, by contrast, has at least had the

opportunity to hear the testimony at trial firsthand, view the

demeanor of the witnesses, observe the ebb and flow of the evidence

at trial, and evaluate the strengths and weaknesses of the

government’s case. When, as here, the balance of evidence

presented is close, the outcome of the case will often hinge on a

subjective and personal evaluation of the evidence and the

witnesses. In such a context, some degree of appellate deference

makes sense.

We think there is a reconciling theme in our facially

competing approaches to Brady-based new trial questions -- adhering

to decisions that examine the Brady question anew, while

acknowledging that we must proceed with deference to the factual

findings underlying the district court’s decision. This gives play

to the trial court’s superior understanding of the trial, evidence,

and witnesses, while reviewing the ultimate constitutional question

afresh. It also recognizes that in the new trial context concerns

respecting finality are less strong. We turn now to the evidence

at issue in this appeal.

C

In assessing the Brady evidence, we must place the facts that

form the substance of our analysis in the context of the specific

16
elements of the charged offense. Sipe was charged and convicted of

violating 18 U.S.C. § 242, which prohibits an individual acting

under color of law from willfully depriving any person of rights

protected by the Constitution or laws of the United States.

At Sipe’s trial, the district court properly instructed the

jury on the elements of a § 242 violation, including the element of

willfulness.20 The Court instructed the jury that an act is done

willfully if “it is done voluntarily and intentionally and with the

specific intent to do something the law forbids.” The Court

further described willful conduct as conduct engaged in “with a bad

purpose or evil motive to disobey or disregard the law.” The Court

defined specific intent as a knowing violation of the law in which

the defendant purposefully intends to violate the law.21

It is a given that the jury was persuaded beyond a reasonable

doubt that Sipe willfully violated Guevara’s legal rights. The

inquiry with which we are presented, however, is whether the

cumulative effect of the evidence withheld by the government at

trial could reasonably be taken to put the whole case in such a

20
The four elements contained in the Court’s jury instruction are as
follows: (1) the defendant acted under color of law; (2) the defendant’s conduct
deprived Guevara of a constitutional right; (3) the defendant used force that
was not reasonably necessary under the circumstances; and (4) the defendant acted
willfully.
21
We have explicitly approved the phrasing of this jury charge, noting
that it comports with the Supreme Court’s teaching in Screws v. United States
that the term “willfully” implies conscious purpose to do wrong and intent to
deprive another of a right guaranteed by the Constitution or other federal law.
United States v. Garza, 754 F.2d 1202, 1210 (5th Cir. 1985)(citing Screws v.
United States, 325 U.S. 91, 101-7 (1945)).

17
different light as to undermine confidence in the verdict. If so,

Sipe is entitled to a new trial.

The Court also instructed the jury that conviction could rest

only on a finding beyond reasonable doubt that Sipe used force that

was “greater than the force which would have been reasonably

necessary under the circumstances to an ordinary and reasonable

officer in the same circumstances.”22 This instruction demonstrates

the essentially objective nature of the test for ascertaining

whether unreasonable force was used – objective in the sense that

it is informed by all the facts and circumstances.

We face a similar inquiry regarding the element of

willfulness. With these considerations in mind, we now examine

each item of evidence withheld by the government.

1

The first item of evidence at issue -- the Prosecution

Memorandum revealing Cruce’s dislike for Sipe -- is perhaps the

most difficult to evaluate. The district court easily concluded

that the government suppressed the information and that it was

favorable to Sipe. The court also found the Memorandum to be

material, at least when viewed collectively with the other items of

22
This instruction comports with clearly established law in this circuit
regarding use of excessive force under § 242. See Bazan v. Hidalgo Co., 246 F.3d
481, 487 (5th Cir. 2001) ("It is clearly established law in this circuit that in
order to state a claim for excessive force in violation of the Constitution, a
plaintiff must allege (1) an injury, which (2) resulted directly and only from
the use of force that was clearly excessive to the need; and the excessiveness
of which was (3) objectively unreasonable.").

18
undisclosed evidence.23 As we will explain, there is a good

argument that the government violated its duty under Brady by

failing to disclose this information to Sipe, but we rest on the

easier conclusion that its prejudicial force is found in the

cumulative effect of the government’s nondisclosures.

The evidentiary value of the Prosecution Memorandum lies in

its relationship to Cruce’s testimony before the Grand Jury. The

Prosecution Memorandum states:

Cruce admits to disliking the [Sipe] even
before this incident. Cruce said that [Sipe]
has an abrasive personality, keeps to himself,
and is generally disliked by most of the other
agents. Cruce said that, while he never
witnessed the subject hit anyone before, he is
often verbally abusive and bullish toward the
aliens.

During his Grand Jury testimony, however, Cruce presented a

different view. When asked about his relationship with Sipe, and

in particular whether he and Sipe would have a cup of coffee

together, Cruce responded:

No. I really -- honestly, I don’t get along
with him that well. He kind of has an abusive
personality, and I just have never gotten
along with him. Not that I dislike him, but
he’s not somebody I associate with.

The district court was persuaded that the Prosecution Memorandum

contradicted this statement, discrediting the government’s argument

that the statement in the Prosecution Memorandum was an

23
The district court did not specify whether it considered the Memorandum
to be material by itself.

19
inarticulate statement of the drafting attorney’s impressions of

Cruce.24

The government disputes the district court’s decision on

several grounds. First, the government argues that Sipe knew of or

could have discovered with reasonable diligence that Cruce disliked

him. Second, the government contends that the Prosecution

Memorandum is not truly favorable to Sipe. Third, the United

States urges that the Memorandum is merely cumulative of other

information given to Sipe, such as the Grand Jury testimony itself.

Relatedly, the government contends that Sipe had an adequate

opportunity to cross-examine Cruce on the topic. Finally, the

government argues that even if the Prosecution Memorandum otherwise

satisfies the Brady requirements, its revelation of Cruce’s

possible bias is too insignificant to create a reasonable

probability that the verdict would be different. We are not

persuaded.

The government’s argument that Sipe knew of or could have

discovered this information through reasonable diligence is

disingenuous at best. Sipe, it must be remembered, was provided

only with Cruce’s Grand Jury testimony -- testimony in which Cruce

explicitly states, under oath, that he does not dislike Sipe. Even

though Cruce criticizes Sipe in that testimony, his comments reveal

only that he and Sipe were not personal friends. They did not

24
The government does not argue that the court clearly erred in finding
that Cruce made the statement in the Prosecution Memorandum.

20
indicate that Cruce harbored any personal dislike of Sipe. Indeed,

the government knew that Sipe believed that he and Cruce got along:

Sipe told prosecutors that he had “no problem with any other Border

Patrol Agents,” including Cruce, Gonzales, and Smith. The

government cannot reasonably argue that Sipe either knew of Cruce’s

dislike or should have discovered it through reasonable diligence.

We similarly reject the government’s argument that the

Prosecution Memorandum was not favorable to Sipe. The Memorandum

suggests that Cruce’s testimony may have been motivated by personal

animosity, and thus provides Sipe with a source for impeaching

Cruce for bias. Indeed, the Memorandum might also have helped Sipe

impeach other government witnesses because it indicates that Sipe

“is generally disliked by most of the other agents.”

The government responds that if Sipe had cross-examined Cruce

regarding his dislike for Sipe, then the government could have

explored the basis of Cruce’s dislike and introduced evidence that

Sipe was disrespectful toward aliens. The Prosecution Memorandum,

then, could not truly be deemed favorable evidence because it would

be inculpatory as well as exculpatory.25 The government, however,

25
There is support for the view that evidence that is both exculpatory and
inculpatory does not qualify as “favorable” under Brady. See, e.g., United
States v. Polland, 994 F.2d 1262, 1267 (7th Cir. 1993) (holding that Brady does
not require disclosure of evidence that is “more inculpatory than exculpatory”);
United States v. Gonzales, 90 F.3d 1363, 1369 (8th Cir. 1996) (“If the evidence
is inculpatory, then Brady is not violated, regardless of the effect at trial of
the nondisclosure.”). Some courts have reached the opposite conclusion, however.
See, e.g., United States v. Howell, 231 F.3d 615, 625 (9th Cir. 2000) (“That the
information withheld may seem inculpatory on its face in no way eliminates or
diminishes the government’s duty to disclose [exculpatory] evidence of a flawed
police investigation. Furthermore, the mistakes constituted textbook examples

21
offers us nothing other than conclusory assertions to support its

contention that the Memorandum would have led to the introduction

of inculpatory evidence: we are not provided with any description

of this alleged evidence or told what form it might have taken.

That said, the problem with the government’s argument runs deeper.

In essence, it permits the government to usurp the role of the

court and unfairly limit the options of a criminal defendant. Sipe

should have been allowed to decide whether to risk the introduction

of such evidence; the court should have been allowed to weigh the

inculpatory evidence to determine whether it would be admissible;

and the jury, ultimately, should have been entitled to determine

whether Cruce was truthful or biased.

We thus have little difficulty concluding that the first two

prongs of the Brady test are satisfied here: the Prosecution

Memorandum was both favorable to Sipe and suppressed by the

government. Materiality, however, is more difficult to evaluate.

As a preliminary matter, we reject the government’s suggestion

that the Prosecution Memorandum can be casually dismissed as

“cumulative” evidence. The government insists that the Memorandum

is “virtually identical” to the Grand Jury testimony that the

government produced to Sipe, but this argument finds little

purchase in the text of the document. In the Memorandum, Cruce

explicitly states his dislike for Sipe, while before the Grand

of impeachment evidence as to where the officers found the money.”).

22
Jury, he clearly said “[n]ot that I dislike him.” It is possible

to explain away the differences in these statements -- and indeed

the government expends considerable effort doing so in its briefs

-- but such argument is properly reserved for the jury. The

government’s intricate explanation does not change the fact that

this evidence contradicts Cruce’s sworn Grand Jury testimony.26

We note, too, that Cruce was a key government witness. The

government recognized that its case was founded largely on

unsympathetic witnesses: Guevara, Diaz, and Sanchez were all

intercepted by border patrol agents illegally entering the country.

Guevara, the victim, had changed his description of the alleged

attack many times, and in some versions, he exonerated Sipe. After

the attack, Guevara was again stopped by Border Patrol agents in

the company of illegal aliens, raising suspicions that he was a

coyote helping aliens enter the country illegally. Other incidents

further undermined Guevara’s credibility: he was involved in some

kind of an altercation with Agent Smith, and he had been accused of

stealing a woman’s bag. To complicate matters even further, the

prosecutors provided the aliens with significant benefits in return

26
The district court rejected the government’s argument that the
Memorandum recorded the transcribing attorney’s mental impressions, concluding
instead that Cruce actually made the statement recorded in the Prosecution
Memorandum. The government does not challenge the court’s finding as clearly
erroneous, and we are left with two starkly conflicting statements: a statement
by Cruce to prosecutors that he disliked Sipe, and a statement by Cruce to the
grand jury that he did not dislike Sipe. These statements are simply not the
same, as the government would have us believe.

23
for their testimony. The government itself conceded to the

district court that Guevara was not a sympathetic figure, noting:

As is usual in excessive force cases, we do
not expect that sympathy for the victim will
carry the jury to a conviction. He is an
illegal alien who repeatedly crosses the
border and has displayed a disrespect for the
law. Also, he has not been candid about the
theft of the woman’s bag the night before the
incident.

The government relied on Cruce to pull together and lend

credibility to the testimony of these illegal aliens, painting him

as the “best judge of what is reasonable out there.” We have

little doubt that his testimony was central to the jury’s

determination that Sipe’s actions were inappropriate. Given this

characterization, evidence that Cruce was personally biased against

Sipe would have been valuable as an impeachment tool; it may well

have affected the outcome of the case.27

Even so, the government insists that Sipe was “on notice” that

Cruce disliked him and that Sipe could have cross-examined Cruce on

the subject but “chose” not to do so. The government’s argument,

however, presumes that Cruce’s dislike of Sipe was evident from the

Grand Jury testimony and that Cruce could be impeached for bias

based on the Grand Jury testimony alone.28 As far as Sipe knew from

27
The government, incidentally, has pointed to no other evidence in the
record that exposed Cruce to impeachment for bias. The Prosecution Memorandum,
then, may have been Sipe’s only means of attacking Cruce.
28
Similarly, the government’s claim that Cruce’s statements in the
Prosecution Memorandum were simply “more detailed” than his grand jury testimony
must be rejected. The government cites to United States v. Villafranca, 150 F.3d
374 (5th Cir. 2001), for the proposition that Brady is not violated when the

24
the Grand Jury testimony, if Cruce were asked at trial about his

feelings toward Sipe, Cruce would simply have repeated that he did

not dislike Sipe. This would only have bolstered Cruce’s testimony

and done nothing to undercut his credibility. The government’s

suggestion that the defense could have cross-examined him based on

the grand jury testimony, then, is unreasonable. No defense

attorney would have asked a question knowing that the answer could

only harm his client. Even if Sipe was in some sense “on notice”

that Cruce did not like him, Sipe was unable to use this suspicion

at trial.

Most significantly, it appears from our review of the record

that Sipe did not possess other information with which to impeach

Cruce’s credibility. Evidence of Cruce’s dislike, therefore, would

have provided Sipe’s only avenue of impeachment, and the evidence

thus takes on added importance. In cases such as this, we have

been more likely to find that the withheld evidence constitutes

Brady material.29

The government offers one final reason why Sipe should have

discovered Cruce’s dislike: the two men were personal

acquaintances. Sipe cites to two Fifth Circuit cases, United

government fails to provide a more detailed version of a witness’s testimony, at
least when the defendant has the opportunity to cross-examine the witness on the
subject. Here, however, the Prosecution Memorandum was not simply more detailed;
it contradicted a portion of Cruce’s sworn grand jury testimony.
29
See, e.g., United States v. Hughes, 230 F.3d 815, 820-21 (5th Cir. 2000)
(finding suppressed evidence to be immaterial because the witness’s testimony did
not go untested at trial and was impeached on various grounds).

25
States v. Nixon30 and United States v. Fogg,31 for the proposition

that a court may assume that information is known or available to

a defendant when he has a personal relationship with the individual

who possesses the information. Neither case supports the

government’s argument. In Fogg, we held that the defendant should

have discovered the grand jury testimony of two witnesses, in part

because they were acquaintances. However, Fogg stressed the

defendant’s “close relationship” with the two witnesses. In the

case at bar, Cruce’s statements -- both in the Prosecution

Memorandum and in his grand jury -- reveal that Sipe and Cruce were

not close. Nixon is similarly inapposite. In Nixon, we concluded

that the defendant “knew or should have known” that the government

had helped one of the government’s witnesses by intervening in a

friend’s criminal prosecution. Our conclusion may have been based

on the defendant’s personal relationship with the witness, although

we did not say so explicitly. Even assuming that the relationship

was important to our holding, the connection between the defendant

and the witness in Nixon was much closer than that between Sipe and

Cruce, who, again, “did not associate” with each other. In any

event, it seems inappropriate on the facts of this case to presume

that Sipe recognized Cruce’s dislike simply because they were

30
881 F.2d 1305 (5th Cir. 1989).
31
652 F.2d 551 (5th Cir. 1981).

26
acquaintances, particularly when Cruce made a sworn statement to

the contrary.

After all, Cruce’s testimony was not the only or even the most

important evidence offered against Sipe. In addition, the

Memorandum provided impeachment evidence which the jury may have

chosen not to credit. Given these facts, it is difficult to assert

with confidence that the outcome of the trial would have been

different had the Memorandum alone not been withheld.

But this is only the beginning of the inquiry, not its end.

Materiality does not turn on the Memorandum’s effect in isolation.

With a number of alleged Brady violations at issue, we must

determine whether the “cumulative effect of all such evidence

suppressed by the government ... raises a reasonable probability

that its disclosure would have produced a different result.”32 As

suggested earlier, there is a stronger case that Cruce’s dislike is

material when viewed cumulatively with other impeachment evidence.

2

The second item of withheld evidence relates to the criminal

history of one of the government’s testifying witnesses, Alexander

Murillo. Murillo was a classmate of Sipe’s who testified that Sipe

told him during a smoking break that Sipe “hit a tonk over the head

32
Kyles, 514 U.S. at 421-22.

27
with his flashlight.”33 According to Murillo, Sipe admitted that

the alien was not armed and joked about the incident. Following

trial, Sipe learned that the prosecution failed to produce

information regarding four incidents in Murillo’s past:

1. On May 1, 1991, Murillo was found not
guilty of submitting a false police
report;

2. In 1997, he was charged with harassment,
although charges against him were
dismissed on September 3, 1997;

3. On May 30, 2000, charges for driving with
a suspended license were dismissed; and

4. On November 2, 1994, Murillo received a
deferred adjudication for misdemeanor
theft.

The government contends that Murillo’s brushes with the law are

immaterial under Brady. The government makes two arguments: first,

that the acquittal and deferred adjudication are inadmissible and

therefore not material; and second, that even if they are

admissible, they are immaterial given the corroborating evidence in

the record, the insignificance of the criminal activity for

impeachment purposes, and their irrelevance to the issue of whether

Sipe used excessive force.

33
Sipe explained that “tonk” is the sound heard when a “wetback” is hit
over the head with a flashlight. Sipe also said that the alien had “gotten too
big for his britches.”

28
 Evidence may be material under Brady even though it is

inadmissible.34 When assessing the materiality of inadmissible

evidence, we apply the general Brady test and “ask only . . .

whether the disclosure of the evidence would have created a

reasonable probability that the result of the proceeding would have

been different.”35 Because of the requirement that the outcome of

the proceeding be affected, we often consider whether the

suppressed, inadmissible evidence would have led to admissible

evidence.36

As a preliminary matter, the government is correct that

Murillo’s criminal history would have been inadmissible under Rule

609 of the Federal Rules of Evidence. In certain circumstances,

Rule 609 allows evidence of a witness’s criminal convictions to be

admitted in order to attack the witness’s credibility,37 but Murillo

34
Spence v. Johnson, 80 F.3d 989, 1005 n.14 (5th Cir. 1996).
35
180 F.3d 206, 212 (5th Cir. 1999).

36
Id. Feder v. Johnson.
37
Rule 609 provides, in pertinent part, that, for purposes of attacking
the credibility of a witness:
(1) evidence that a witness other than an accused has
been convicted of a crime shall be admitted, subject to
Rule 403, if the crime was punishable by death or
imprisonment in excess of one year under the law under
which the witness was convicted, and evidence that an
accused has been convicted of such a crime shall be
admitted if the court determines that the probative
value of admitting this evidence outweighs its
prejudicial effect to the accused; and
(2) evidence that any witness has been convicted of a
crime shall be admitted if it involved dishonesty or
false statement, regardless of the punishment.
FED. R. EVID. 609.

29
was not actually convicted of any of the offenses listed above.

Thus, they would not be admissible under Rule 609.38

However, Rule 608(b) gives a district court discretion to

allow questioning on a witness’s prior bad acts, including those

that did not result in a conviction, if they are relevant to the

witness’s character for truthfulness.39 The district court

concluded that it would have “given very serious consideration” to

allowing Sipe to cross-examine Murillo on three of the charges --

the false police report, harassment, and misdemeanor theft charges

-- “because of the serious nature involved with regards to the

witness' credibility.” Of Murillo’s prior acts, however, only the

false police report satisfies Rule 608(b)’s requirements.40 Since

38
See, e.g., United States v. Parker, 133 F.3d 322, 327 (5th Cir. 1998);
United States v. Abadie, 879 F.2d 1260, 1267 (5th Cir. 1989); United States v.
Georgalis, 631 F.2d 1199, 1203 (5th Cir. 1980) (holding that Rule 609 was
violated when prosecutor attempted to cross-examine defendant about his deferred
adjudication for felony check fraud); United States v. Dotson, 555 F.2d 134, 135
(5th Cir.1977) (holding that defendant truthfully stated on firearm purchase form
that he had no felony convictions, given the fact that adjudication of guilt was
deferred and sentence suspended on his prior offense of felony receipt of a
stolen car).
39
Rule 608(b) provides that:
Specific instances of the conduct of a witness, for the
purpose of attacking or supporting the witness’
character for truthfulness, other than conviction of
crime as provided in rule 609, may not be proved by
extrinsic evidence. They may, however, in the discretion
of the court, if probative of truthfulness or
untruthfulness, be inquired into on cross-examination of
the witness (1) concerning the witness’ character for
truthfulness or untruthfulness, or (2) concerning the
character for truthfulness or untruthfulness of another
witness as to which character the witness being
cross-examined has testified.
40
Murillo’s deferred adjudication for misdemeanor theft might conceivably
satisfy Rule 608(b) as well. It is unclear from the record whether his theft
charge was a crime involving dishonesty, such as “theft by deception” or “theft

30
this charge implicates truthfulness or untruthfulness, the district

court would have acted within its discretion by allowing Sipe to

cross-examine Murillo on this subject.41

However, we cannot say that evidence of Murillo’s prior

acquittal puts the whole case in such a different light as to

undermine confidence in the verdict, at least when viewed in

isolation. In concluding otherwise, the district court focused on

Murillo’s importance to the government’s case, noting that he “kind

of pulled it all together with regards to what your [the

government’s] theory of the case was and the whole flavor of the

case, which was: ‘He did this and he did this in this fashion,

because of the type of person he is. And part of the type of what

he is . . . part of his personality is he has no respect for the

people he deals with.” However, the evidence of the false police

forgery.” If so, then it would likely be admissible under Rule 608(b) as
evidence of his truthfulness. Compare, e.g., United States v. Newman, 849 F.2d
156, 163 (5th Cir. 1988) (holding prior convictions for “theft by deception” and
“theft-forgery” were properly admitted under Rule 609(a)(2)) with Coursey v.
Broadhurst, 888 F.2d 338, 341 (5th Cir. 1989) (holding that felony theft of
cattle is not a crime involving dishonesty or false statements under Rule
609(a)(2)).

41
A district court’s discretion under Rule 608(b) is substantial. See
United States v. Farias-Farias, 925 F.2d 805, 809 (5th Cir. 1991) (citing United
States v. Mateos-Sanchez, 864 F.2d 232, 236 (1st Cir. 1988)).
The government responds that admitting evidence of Murillo’s acquittal of
filing a false police report would mislead the jury, be unduly prejudicial, or
confuse the issues in violation of Rule 403. Murillo, after all, was acquitted
of the false police report charge more than ten years before Sipe’s trial. The
government cites cases that have excluded such questioning, but each of the cases
involved situations where the prosecution sought to question the defendant about
his own prior alleged misconduct. In this case, by contrast, it is a government
witness whose prior acquittals are in play. The government has offered us nothing
to indicate that the district court would have abused its discretion by admitting
Murillo’s false police report.

31
report would have done little to undermine his testimony. Although

Murillo testified about several statements that Sipe made to him,

these statements were largely corroborated by other witnesses,

including fellow EMT classmates Rene Garza and Sanchez and BPA

Garcia. Moreover, the withheld information about which Sipe

complains is an acquittal -- not a conviction -- and it occurred

over ten years before Sipe’s trial. Under the circumstances, it is

difficult to see how the prior acquittal could possibly place “the

whole case in such a different light as to undermine confidence in

the jury verdict.”42 We will shortly return to this evidence in

considering the cumulative effect of all withheld evidence.

3

The third item of disputed evidence concerns notes of an

interview that the prosecution conducted with Herica Rodriguez, one

of Sipe’s fellow EMT students who was not called as a witness at

trial. According to these notes, Rodriguez considered Sipe to be

a “nice guy,” and she stated that she never heard him use

derogatory terms to describe aliens. She also heard Sipe say that

he was under investigation for “knock[ing] an alien over the head

with his flashlight,” although she remembered no other details

about the incident.

The government makes two arguments. First, the government

denies that it “suppressed” Rodriguez’s statements because

42
Kyles, 514 U.S. at 435 (1995).

32
Rodriguez was known to Sipe and he had every opportunity to obtain

her statement and present her as a witness. Second, the government

argues that Rodriguez’s statements were not truly “favorable” to

Sipe; they were at best neutral.

We agree with the government on both fronts. First, as we

have noted, the State has no obligation to produce potentially

exculpatory evidence that is either known to the defendant or that

could be discovered through the exercise of reasonable diligence.43

Sipe could have contacted Rodriguez himself, determined whether she

could testify to his character, and put her on the witness stand.

Rodriguez was a fellow student and a personal acquaintance of

Sipe’s. There is no indication from the record that Rodriguez was

hostile to Sipe or refused to speak with him.44 In fact, her

statements to the prosecutors indicate that she would have

supported him. In similar circumstances, we have refused to find

Brady violations because a defendant is deemed to have access to

personal acquaintances and associates.45 Indeed, Sipe did call

43
Rector, 120 F.3d at 558-59 (5th Cir. 1997).
44
For this reason, Rodriguez was in a very different position from Cruce,
who would arguably have been uncooperative.

45
See Fogg, 652 F.2d at 559 (finding no Brady violation when the
prosecution failed to turn over the grand jury testimony of individuals who were
friends of defendant); see also Friend v. Rees, 779 F.2d 50 (6th Cir. 1985)
(rejecting a defendant’s claim that a witness’s identity was concealed, noting
that the witness “was surely known to Friend and her version was available to him
upon his or his attorney's inquiry”); United States v. Nicholson, 525 F.2d 1233,
1239 (5th Cir. 1976) (noting, in rejecting a Brady claim, that “[i]t appears that
appellants both knew the witnesses and could have examined them before trial”).

33
Cesar Garcia, his EMT instructor, demonstrating that he had access

to members of his EMT class. Sipe offers no explanation why he

could not have discovered Rodriguez’s statements through reasonable

effort. For that reason, and given his obvious ability to learn of

her statement through the exercise of reasonable diligence,

Rodriguez’s statements are not Brady material.

We also reject Sipe’s argument that Rodriguez’s statements

were “favorable” to Sipe. Her statements are most fairly

categorized as neutral evidence that the government had no

obligation to produce.46 While it is true she labeled him a “nice

guy,” this statement, by itself, is of such marginal utility that

it can hardly be considered favorable; by itself, it does nothing

to contradict the government’s claim that he was disrespectful of

aliens. Her most helpful statement was that she had never heard

him use derogatory terms to describe aliens, but even this

statement can hardly be called “favorable.” After all, Rodriguez

did not state that Sipe did not use those terms, only that she had

not heard him use those terms. Her statement speaks only to her

own lack of knowledge, not to Sipe’s character. The favorableness

prong of Brady requires more.47

46
See United States v. Johnson, 872 F.2d 612, 619 (5th Cir. 1989).
47
We have refused in the past to find far more beneficial evidence to be
“favorable” under Brady. For example, in Andrews v. Collins, 21 F.3d 612 (5th
Cir. 1994), we concluded that evidence that a witness was unable to identify the
defendant was neutral rather than exculpatory. See also United States v. Rhodes,
569 F.2d 384, 388 (5th Cir. 1978) (holding that the prosecutor had no Brady duty
to disclose that a witness could not positively identify the defendant).

34
 Because Rodriguez’s statements were neither suppressed nor

favorable, they cannot be material under Brady and we will not

factor them into our cumulative analysis of the impact of the

various asserted Brady violations.48

4

The government’s failure to provide Sipe with a complete

description of the benefits accorded the testifying aliens --

Guevara, Sanchez, and Diaz -- is much more troubling. In response

to Sipe’s interrogatories, the government stated in writing that

the aliens were allowed to remain and work in the United States

pending trial and specified that “no other promises or advantages”

had been given. That was not true. The aliens were given other,

significant benefits, including Social Security cards, witness

fees, permits allowing travel to and from Mexico, travel expenses,

living expenses, some phone expenses, and other benefits. They

were essentially given all, and more, of the benefits they were

arrested for trying to obtain illegally – benefits so valuable that

they took great risks to obtain them by crossing the border

illegally.

The district court noted that Sipe “could have gathered this

information, possibly,” but nonetheless found that the government

Similarly, in United States v. Dillman, 15 F.3d 384 (5th Cir. 1994), we concluded
that a witness’s statement that she could not remember a meeting was neutral, not
exculpatory evidence.
48
See Freeman, 164 F.3d at 249.

35
suppressed it. The court relied heavily on the prosecutors’

affirmative representation to Sipe that the only advantage given

the aliens was permission to remain in the country and work. The

court also concluded that the information would have been important

to an effective cross-examination of the witnesses regarding

further advantages given to them in order to induce them to remain

in the country to testify.

On appeal, Sipe paints a sinister picture. He recites

statements by prosecutors that the aliens needed to be “kept in

orbit”; that the agents needed to maintain “close control” over the

witnesses; that they must be kept “in pocket”; and that the aliens

needed to be “re-commit[ted] to the cause.” This evidence, which

was withheld from Sipe, reveals that the aliens were dependant upon

the government for their most basic needs, such as visiting and

communicating with their families. Sipe urges that the sheer scope

of the benefits would have provided him with powerful evidence to

discredit their testimony.

For its part, the government asserts that the undisclosed

information about the benefits the aliens received is immaterial.

First, the government argues that the information regarding the

benefits given to the aliens was readily available to Sipe, in

large part because Sipe cross-examined the witnesses on the stand

about the benefits they received. Second, the government notes

that Sipe knew that the aliens were given some benefits: they were

allowed to remain in and work in the United States pending trial.

36
That they were given additional benefits, like Social Security

cards, witness fees, and travel fees, is only additional cumulative

evidence of bias and thus immaterial under Brady.

Although materiality determinations under Brady are always

difficult, we find this to be a particularly close question. On

the one hand, we recognize that Sipe did know that the aliens were

given some benefits to ensure their cooperation at trial, and he

cross-examined them on the subject in an effort to impeach their

testimony. Our focus then is upon the additional benefits that

they were given. Sipe states in his brief that this evidence would

allow him to impeach the three aliens for bias -- that the jury

would conclude that the aliens’ testimony was influenced by their

interest in receiving the government benefits. But an argument can

be made that Sipe could have accomplished this impeachment with the

evidence he had. He was told that the aliens were allowed to stay

in the United States and work pending trial. This information

alone indicates that the aliens would have been eager to appease

the prosecutors to ensure that they were allowed to remain in the

country, and Sipe could have exposed this bias at trial. Sipe was

thus able to attack the aliens’ credibility on the very issue of

their dependence on the government. As one of our sister circuits

has noted, evidence which impeaches an already impeached witness is

by definition cumulative; its suppression does not give rise to a

37
Brady violation.49 We have similarly noted that “‘[s]uppressed

evidence is not material when it merely furnishes an additional

basis on which to impeach a witness whose credibility has already

been shown to be questionable.’”50

On the other hand, the sheer scope of the benefits given the

aliens, the disturbing evidence regarding the government’s control

over the witnesses, and the fact that Guevara changed his account

of the incident after dealing with the prosecutors gives us pause.

When coupled with the government’s affirmative statements that “no

other benefits were given,” plus compelling evidence in the record

that Sanchez and Diaz could not have seen what they claimed to see

the night of the attack, we question whether Sipe was effectively

able to attack the credibility of the alien witnesses or challenge

the government’s theory of the case.51 The undisclosed evidence is

not merely cumulative of other evidence in the record; rather, it

49
United States v. Kozinski, 16 F.3d 795, 819 (7th Cir. 1994) (“Evidence
that impeaches an already thoroughly impeached witness is the definition of
‘cumulative impeachment’ evidence and its suppression cannot give rise to a Brady
violation.”).
Guevara, to be sure, was impeached on many matters, including his alleged
theft of a woman’s bag, his repeated illegal entries into the United States, and
his struggle with BPA Smith.

50
Felder, 180 F.3d at 213 (5th Cir. 1999) (quoting United States v. Amiel,
95 F.3d 135, 145 (2d Cir.1996)).
51
In this respect, this case differs from United States v. Villafranca,
260 F.3d 374 (5th Cir. 2001), where we concluded that the government committed
no Brady violation by failing to reveal the size of a bonus paid to an informant.
Villafranca was based in large part on our observation that “[a]t trial, the
defense was able to fully explore the meaning of the contract and the likely
bonus at trial.” Id. at 379. Here, by contrast, Sipe could broach the general
subject of their bias, but after being misled about the scope of the benefits
given, he could not “fully explore” the source of their bias.

38
changes the tenor of the aliens’ testimony, places their

“cooperation” with the government in context and provides an

explanation for Guevara’s ever-changing account of the attack.

The government argues that the evidence cannot be material

under Brady because it does not deal directly with the central

issue in the case: whether Sipe used excessive force in arresting

Guevara. Given the tangential nature of the evidence, and the fact

that Sipe had some information with which to impeach the aliens,

the government urges that we look past its failure to disclose. We

cannot so easily ignore the government’s lack of candor. Sipe made

a specific request for information regarding benefits given to the

testifying aliens. The government responded in equally specific

terms, explaining that the aliens were “allowed to remain and work

in the country pending the trial of David Sipe. No other promises

or advantages have been given.” We have remarked in the past that

“reversal for suppression of evidence by the government is most

likely where the request for it was specific.”52 Here, the

government’s affirmative misrepresentation that the aliens received

no benefits effectively pushed Sipe off track, taking from him

powerful evidence exposing the witness’s bias.

52
Lindsay v. King, 769 F.2d 1034,1041 (5th Cir. 1985); James v. Whitley,
926 F.3d 1433, 1439 (5th Cir. 1991) (“It may be proper to weigh in favor of the
accused ‘the more specifically the defense requests certain evidence, thus
putting the prosecutor on notice of its value.’”(quoting Bagley, 473 U.S. at 683
(opinion of Blackmun, J.)).

39
 More importantly, the aliens’ testimony formed the heart of

the government’s case. Guevara, the victim, testified at trial

that Sipe attacked him even though he put up no resistance.

Evidence that Guevara was given substantial benefits to fabricate

his story would have had a profound impact on his already suspect

credibility.53 Guevara, after all, was not only an alien who had

been caught illegally entering the country; he had also provided

multiple versions of the attack. In at least one of the stories he

told investigators, he completely exonerated Sipe. Similarly, the

“eye-witness” accounts provided by Dias and Sanchez would be

particularly vulnerable, especially when viewed together with

evidence indicating that they could not have seen Guevara crouching

in the dense reeds on a dark night.

5

The final pieces of evidence withheld from Sipe are

photographs taken by government investigators of the scene of the

attack. The photographs were taken on May 31, 2000, nearly two

months after the attack, from the location where Guevara stated he

was injured. Guevara himself is in the photographs, posing to

demonstrate where he was located in the reeds.

The district court considered the suppression of the

photographs to be a “minor issue,” but nonetheless concluded that

53
James v. Whitley, 926 F.2d 1433, 1439 (5th Cir. 1991) (“[I]t may be
proper to weigh in favor of the accused ‘the more specifically the defense
requests certain evidence, thus putting the prosecutor on notice of its
value.’”).

40
the Brady requirements were satisfied. The court noted that the

photos were in the possession of the government and that they were

favorable as evidence that key witnesses could not have seen the

attack as they claimed because of the tall reeds. In particular,

the court stated: “The reason I say [that the photos should have

been made available to Sipe] is because the photographs actually

contained the victim himself laying down trying to display as to

where he was.”54

Sipe argues that the photographs were valuable impeachment

evidence because they depict the dense reeds that would have

invariably obscured the eye-witnesses’ view of the attack. The

government responds that it had no obligation to produce these

photographs because Sipe could have taken them himself. The crime

scene was open and equally accessible to him.

The government’s argument, however, ignores the full import of

the photographs. While it is certainly true that Sipe could have

taken his own photographs of the crime scene, the photographs

depict more than just the scene: they also contain Guevara’s self-

placement in the reeds. This self-placement is assertive conduct;

it expresses Guevara’s recollection as to where he was located when

Sipe discovered him -- i.e., that he was lying down surrounded by

54
It is unclear whether the court’s statement should be considered a
factual finding. That is, it is unclear whether the court found that Guevara’s
placement and posture in the photographs was meant to indicate where he thought
he was located the night of the attack. In any event, the government does not
dispute the district court’s characterization that Guevara was “laying down
trying to display ... where he was.”

41
tall reeds. The district court concluded as much, and the

government has not challenged this finding.

That said, we agree with the district court that this evidence

is a minor issue. The chief value of the photographs is that they

demonstrate that visibility through the reeds was not good. They

thus call into question whether Sanchez and Diaz could truly have

seen what occurred that night, and they cast doubt on the

government’s charge that Sipe deliberately struck a submissive

Guevara on the head. But Sipe could certainly have taken his own

photographs of the scene to prove these points. The State bears no

responsibility to direct the defense toward potentially exculpatory

evidence that is either known to the defendant or that could be

discovered through the exercise of reasonable diligence.55 When

viewed together with other evidence in the record, moreover, the

photographs are merely cumulative. Guevara testified at trial that

he was crouching on his knees, on all fours, surrounded by the

reeds. The photographs, it seems, do little more than repeat this

testimony in pictorial format: they depict Guevara crouching in the

reeds. We conclude that the government’s failure to produce the

photographs did not violate Brady.

6

Because multiple Brady violations are at issue, the question

we must address is whether the “cumulative effect of all such

55
Rector, 120 F.3d at 558-59.

42
evidence suppressed by the government . . . raises a reasonable

probability that its disclosure would have produced a different

result.”56 We include in this cumulative materiality analysis only

the evidence that survived Brady’s other prongs: (1) Cruce’s

statement of dislike; (2) Murillo’s acquittal on the charge of

filing a false police report; and (3) information regarding

additional benefits given to the testifying aliens.

Taken together, this evidence would have allowed Sipe to

attack the government’s case from every angle. Cruce, the

government’s star witness, could be impeached on his personal

dislike for Sipe. The aliens could be grilled on the benefits they

received from the government in exchange for their testimony.

Guevara, in particular, could be attacked for his changing story.

Even Murillo, a witness whom the government presented as a good

citizen who came forward to do his civic duty, could have been

undermined by revelations that he had, in the past, been accused of

filing a false police report. Individually, some of this evidence

troubles us. When this evidence is considered cumulatively, its

potential impact on the outcome of the trial is too strong,

especially given the other evidence in the record undermining the

government’s case. The cumulative effect of this evidence raises

a reasonable probability that its disclosure would have produced a

different result.

56
Kyles, 514 U.S. at 421-22; Freeman, 164 F.3d at 248.

43
 At the very least, this evidence would have seriously

unsettled an already weak case. The evidence against Sipe, while

sufficient for conviction, was not strong. Indeed, the government

itself admitted that its case was difficult, in no small part

because it relied on the testimony of an illegal alien who had

changed his story and two alien witnesses who likely could not have

seen what they claimed to see. If the jury had heard the evidence

that the government failed to disclose -- evidence that Cruce and

the other agents disliked Sipe; that the prosecution attempted to

maintain “close control” over the aliens to “keep the aliens in

orbit” for trial; that the prosecutors had protected Guevara from

arrest when he was detained after the incident -- the shortcomings

in the government’s case would have been more apparent.

We have considered with due respect the judgment of the

district court, which unlike us, had the opportunity to hear the

evidence firsthand, gauge the credibility of the witnesses, and

assess the importance of the various items of withheld evidence

based on its personal understanding of the trial record. We cannot

blithely ignore the court’s considered judgment.

Unquestionably, there is sufficient evidence to support a

finding of guilt in this case. It is undisputed that Guevara

suffered a cut on his scalp, and a jury could have found that a

reasonable agent would not have believed it necessary to strike

Guevara on his head. The government relies heavily on Sipe’s use

of a particularly large flashlight. Its argument throughout the

44
case contains the implication that hitting Guevara on the head with

this light not only violates the rules of the Border Patrol; it was

virtually a per se violation of the criminal law prohibition

against the use of excessive force, making the withheld evidence

wholly immaterial.

However, this implicit suggestion ignores one crucial fact:

the law’s insistence that for Sipe’s acts to rise to the level of

criminal conduct, they had to have been done wilfully and with a

bad and evil purpose. Significantly, it was undisputed that when

he came upon Guevara, Sipe had no other weapon he might

effectively deploy. His pepper spray would have been ineffectual

in the dense cane, and drawing his handgun or baton would have been

difficult and potentially hazardous given that he was operating in

the dark in with only one hand free. The question that the

government must answer beyond a reasonable doubt is not whether

Sipe needed to strike Guevara on the head; rather, the government

must show that Sipe had an evil purpose in wilfully violating

Guevara’s constitutional rights. While sufficient to support a

conviction, the facts of this case are also consistent with the

conclusion that Sipe’s use of force was a spontaneous act of poor

judgment, done while operating at night in a potentially dangerous

situation. Given the closeness of this case based solely on those

facts presented at trial, the government’s failure to disclose

copious amounts of evidence casting doubt upon the credibility of

almost all of the key witnesses severely undermines our confidence

45
in the outcome of this case. We must affirm the trial judge’s

order of a new trial.

III

In granting Sipe’s motion for a new trial, the district court

was careful to note that it also did so “in the interest of

justice.”

Under Rule 33(a), a district court “may . . . grant a new

trial if the interest of justice so requires.”57 A motion for new

trial “is addressed to the discretion of the court, which should be

exercised with caution, and the power to grant a new

trial . . . should be invoked only in exceptional cases . . . .”58

However, if “a court finds that a miscarriage of justice may have

occurred at trial, . . . this is classified as such an ‘exceptional

case’ as to warrant granting a new trial in the interests of

justice.”59

In granting Sipe’s motion, the district court focused

primarily on the Brady violations committed by the government.

But, as the court’s oral ruling on the matter reveals, there was

far more in the mix than just the five items of evidence discussed

above. Indeed, throughout the proceedings, the government’s

disclosures were inadequate. In many cases, the court discovered

57
FED. R. CRIM. P. 33(a).

58
United States v. Robertson, 110 F.3d 1113, 1120 n.11 (5th Cir. 1997)
(citation and internal quotation marks omitted).
59
Id. (citation and internal quotation marks omitted).

46
that the government had failed to reveal important information, but

Sipe was no doubt prejudiced by the delay and hindered in his

preparation for trial.

The Judge noted before granting the motion that he had never

before in his twenty years on the bench ordered a new trial. Yet

he sat through the trial, learned of the government’s repeated

nondisclosures and misrepresentations, and was troubled. While

many of these nondisclosures do not satisfy Brady’s rigid

materiality standard, they nonetheless convinced the district court

that Sipe did not receive a fair trial.

That said, we need not and therefore do not decide if his

decision could properly rest solely on the district court’s

exercise of discretion under Rule 33.

AFFIRMED AND REMANDED FOR TRIAL.

47
JERRY E. SMITH, Circuit Judge, dissenting:

The majority finds that the cumulative effect of three alleged

Brady violations is enough to warrant a new trial. Because at

least one of these alleged suppressions does not violate Brady v.

Maryland, 373 U.S. 83 (1963), the cumulative effect of the remain-

ing two alleged violations, even if true, does not undermine con-

fidence in the verdict. I therefore respectfully dissent from the

majority’s well-intentioned affirmance of the order granting a new

trial.

I.

The majority readily admits that the independent value of each

of the alleged Brady violations is minimal. The majority correctly

notes that “[w]hen there are a number of Brady violations, a court

must analyze whether the cumulative effect of all such evidence

suppressed by the government raises a reasonable probability that

its disclosure would have produced a different result” (citing

Kyles v. Whitley, 514 U.S. 419, 436-37 (1995)). Under this cumu-

lative analysis, where even the majority concedes that this is an

“extremely close question,” there is no Brady violation that merits

a new trial, in this important civil rights prosecution, because

Brady was not violated by the government’s failure to turn over the

prosecution memorandum. Absent that plank in the majority’s
analysis, the remaining violations, which are minor in nature,60 are

flatly insufficient to warrant a new trial.

Because the majority places so much weight on the prosecution

memo, I infer that in the absence of that purported violation, the

majority would not require a new trial. Because, however, the memo

was neither suppressed nor material to the central issue of the

case, its non-disclosure cannot be said to constitute a Brady

violation.

A.

For evidence to be considered suppressed for Brady purposes,

it must not have been known to the defense or discoverable to it by

the exercise of reasonable diligence. See Graves v. Cockrell, 351

F.3d 143, 154 (5th Cir. 2003). The allegedly violative evidence

goes to a dislike of defendant Sipe by a prosecution witness,

Cruce. Specifically, the prosecution memo states that “Cruce ad-

mits to disliking” Sipe. Therefore, for the non-disclosure of the

memo to be considered a Brady violation, the defense must neither

have been aware of the information it contained, nor have been able

60
The majority admits that both the evidence of Murillo’s prior acquittal
on a charge of falsifying a police report and the non-disclosure of the benefits
conferred on the alien witnesses are insufficient, by themselves, to warrant a
new trial. As the majority states, Murillo’s acquittal “could [not] possibly
place ‘the whole case in such a different light as to undermine confidence in the
jury verdict,’” and it is a “particularly close question” as to whether the
evidence of additional benefits to the witnesses was material.

49
to discover that information through the exercise of reasonable

diligence.

In Cruce’s grand jury testimony, of which defense counsel was

admittedly aware, Cruce makes it more than obvious that he did not

“get along with [Sipe] that well,” at least in part because of

Cruce’s belief that Sipe had an abusive personality. Despite what-

ever colloquial disclaimers Cruce may have used to preface or later

soften his testimony, it certainly was plain to all involved,

including the defense, that there was hostility between Cruse and

Sipe.

That the defense was cognizant of the problem is conceded by

the majority, which points out that “the defense suggested that

Cruce bore Sipe a personal animosity and seized on the moment to

put Sipe in a bad light.” It therefore is hard to understand how

the majority then can vigorously assert that “[e]ven if Sipe was in

some sense ‘on notice’ that Cruce did not like him, Sipe was unable

to use this suspicion at trial”(emphasis added). In the same

breath, the majority argues that the prosecution memo represented

the defense’s “only avenue of impeachment.” Is the reader to be-

lieve that on the one hand, the defense “suggested that Cruce bore

Sipe a personal animosity” at trial, while simultaneously believing

that Sipe was ”unable to use this suspicion at trial?”

Beyond the majority’s admission that Sipe’s defense counsel

did in fact point out the ill will the witness bore toward Sipe, it

50
is equally obvious that even had the defense not addressed this

matter at trial, it was either quite aware of Cruce’s feelings or

would have been aware in the exercise of reasonable diligence.

When asked, in front of the grand jury, whether he would have

coffee with Sipe, Cruce responded: “No. I reallySShonestly, I

don’t get along with him that well. He kind of has an abusive

personality, and I just have never gotten along with him. Not that

I dislike him, but he’s not somebody I associate with.”

Despite Cruce’s protestation to the contrary, it is evident

from this statement that Cruce does not like Sipe. He states twice

that he does not get along with Sipe, and once that Sipe has “an

abusive personality.” The grand jury testimony also relates

Cruce’s view that Sipe was “[s]ometimes rude” and was “aggressive”

toward illegal aliens.

That testimony and the “revelation” in the prosecution memo

are nearly identical in their effect on the reader. If I were

Sipe’s counsel, and those grand jury statements were disclosed to

me, I would have a pretty fair sense that the declarant held my

client in low esteem. How could anyone be surprised that Cruce

does not like Sipe after learning that Cruce does not get along

with him and regards him as abusive, rude and aggressive? The use

of a qualifying claim of respect or affection when followed by a

completely inconsistent criticism, such as Cruce’s “[n]ot that I

dislike him . . .,” or one saying “with all due respect, that’s the

stupidest idea I’ve ever heard,” cannot be taken at face value. It

51
is unlikely, at best, that anyone hearing those statements would

come away convinced that the declarant has the respect or affection

for the subject of the statement that his initial disclaimer im-

plies.2 Therefore, the prosecution memorandum cannot reasonably

form the basis of a Brady violation.

B.

The evidence underlying a Brady violation must be material.

Graves, 351 F.3d at 153. “The materiality of Brady material de-

pends almost entirely on the value of the evidence relative to the

other evidence mustered by the state.” Smith v. Black, 904 F.2d

950, 967 (5th Cir. 1990), vacated on other grounds, 530 U.S. 930

(1992). Again, with respect to this prong of the Brady analysis,

the majority’s argument is contradictory on its own terms, and the

prosecution memo was insufficiently material to find a violation of

the Brady doctrine.

The majority asserts, as evidence of the materiality of the

prosecution memo, that “[t]he government relied on Cruce to pull

together and lend credibility to the testimony of these illegal

aliens, painting him as the ‘best judge of what is reasonable out

there.’ We have little doubt that his testimony was central to the

2
This is sometimes described as the difference between the content of a
statement and its “illocutive” force. See generally J.L. Austin, How To Do
Things with Words (Harvard Univ. Press 1988); John R. Searle, Speech Acts: an
Essay in the Philosophy of Language (Cambridge University Press 1990).

52
jury’s determination that Sipe’s actions were inappropriate.” Yet,

a few paragraphs later, the majority contends that “[a]fter all,

Cruce’s testimony was not the only or even the most important evi-

dence offered against Sipe.” Moreover, as the majority notes

(quoting the district court), another witness, Murillo, not Cruce,

“‘kind of pulled it all together with regards to what [the gov-

ernment’s] theory of the case was and the whole flavor of the case

. . . .’”

The majority’s reasoning is (with due respect) confused. Was

it Cruce’s testimony that pulled together and lent credibility to

the government’s case? Or was it Murillo’s testimony that pulled

it all together? Although it is conceptually possible for the tes-

timony of both witnesses to have been central to the government’s

case, I cannot rely on the majority’s conclusional assertions to

that effect, especially when those assertions are so plainly

contradictory.

Furthermore, because the prosecution memo has questionable

value for impeachment purposes, it is not material. As Sipe sug-

gests, a sense of personal dislike, separate from professional con-

tempt, conceivably could be used as a witness impeachment tool. As

a weapon for cross-examination, however, the admitted dislike would

not have been highly effective.

In fact, a line of questioning based on Cruce’s dislike would

have allowed Cruce to describe why he disliked Sipe. His answers,

53
stemming from Sipe’s poor professional behavior and character,

would have detracted little from the credibility of his description

of the facts of the alleged crime and would have done even more to

make Sipe look bad before the jury.

This interpretation is bolstered by the fact that Sipe’s at-

torney did not vigorously attempt to pursue this line of question-

ing, despite Cruce’s admission before the grand jury that he did

not “get along” with Sipe. Such a strategic decision speaks vol-

umes about the attorney’s understanding that it was more damaging

to pursue that line of inquiry than to let it lie. There is no

hint that Cruce had a vendetta against Sipe. Rather, Cruce’s ex-

planation of why he did not like SipeSSan explanation that was

found in the grand jury testimony and the prosecution memoSSindi-

cates that Sipe was a bullish, aggressive jerk.

That is precisely the picture the prosecution was trying to

portray and the defense wanted to rebut. So, the whole notion that

Sipe would have cross-examined Cruce more thoroughly on the basis

on his “dislike” for Sipe is highly improbable. The assertion of

dislike is indicative less of a latent bias than of the usual human

reaction to an aggressive, obnoxious personSSa reaction that would

likely have been strengthened in the minds of the jury had Sipe’s

attorney more vigorously pursued this line of questioning, armed

with the prosecution memo. In short, under Brady, the prosecution

memo was not material.

54
 II.

In summary, because the majority’s decision is based on a

careful weighing of the cumulative value of three pieces of sup-

posedly material and suppressed evidence (a balance that the ma-

jority grants yields a very close call), it is obvious that any

disturbance to these precariously balanced scales of justice would

produce a different result. As I have explained, the failure to

produce the prosecution memo is not a Brady violation. Conse-

quently, the cumulative weight of the other two purported Brady

violations (a weight that even the majority admits is not great) is

insufficient to upset the verdict. I respectfully dissent.

55