United States v. David Bruce, II

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-10289
Plaintiff-Appellee,
D.C. No.
v. 1:17-cr-00077-
DAD-BAM-1
DAVID G. BRUCE II, AKA David G.
Bruce,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the Eastern District of California
Dale A. Drozd, District Judge, Presiding

Argued and Submitted August 14, 2020
San Francisco, California

Filed January 12, 2021

Before: Michael Daly Hawkins and Morgan Christen,
Circuit Judges, and James E. Gritzner,* District Judge.

Opinion by Judge Christen

*
The Honorable James E. Gritzner, United States District Judge for
the Southern District of Iowa, sitting by designation.
2 UNITED STATES V. BRUCE

SUMMARY**

Criminal Law

The panel affirmed the district court’s orders admitting
identification evidence and denying a motion for new trial in
a case in which David Bruce was convicted of conspiracy,
attempt to possess with intent to distribute heroin or
marijuana, and bribery, arising from Bruce’s involvement in
a drug smuggling scheme at the United States Penitentiary at
Atwater, California, where Bruce worked as a correctional
officer.

The panel held that the district court reasonably
concluded that the use of a Facebook photo during an
identification procedure was not so suggestive that it rendered
the witness’s identification unreliable.

The panel held that the district court did not err by
denying the motion for new trial in which Bruce argued that
the government violated Brady v. Maryland by failing to
produce evidence indicating that Atwater officer Paul Hayes
was a target of an investigation into a very similar smuggling
ring at a different federal prison, that numerous inmate
complaints had been made against Hayes prior to the Bruce
investigation, and that Hayes pressured some inmates to offer
evidence against Bruce. The panel held that the evidence was
exculpatory within the meaning of Brady and at the very least
the government was required to investigate it. Addressing
Brady’s materiality requirement, the panel cited the weight

**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 UNITED STATES V. BRUCE 3

and force of the evidence against Bruce, and concluded that
its confidence in the verdict was not undermined by the
government’s failure to disclose the exculpatory evidence.

COUNSEL

Amanda K. Moran (argued) and Janay D. Kinder, Moran Law
Firm, Fresno, California, for Defendant-Appellant.

Vincenza Rabenn (argued), Assistant United States Attorney;
Camil A. Skipper, Appellate Chief; McGregor W. Scott,
United States Attorney; United States Attorney’s Office,
Sacramento, California; for Plaintiff-Appellee.

OPINION

CHRISTEN, Circuit Judge:

David Bruce appeals his convictions for conspiracy,
18 U.S.C. § 371, Attempt to Possess with Intent to Distribute
Heroin or Marijuana, 21 U.S.C. §§ 846, 841(a)(1), and
Bribery: Public Official Accepting a Bribe, 18 U.S.C.
§ 201(b)(2)(C). The charges arose from Bruce’s involvement
in a drug smuggling scheme at the United States Penitentiary
at Atwater, California, where Bruce worked as a correctional
officer. After a jury trial, Bruce was convicted and sentenced
to 78 months in prison.

Bruce raises two issues on appeal. First, he argues the
district court erred by admitting testimony from another
participant in the smuggling scheme who identified Bruce
from a Facebook photo. We conclude the district court did
4 UNITED STATES V. BRUCE

not abuse its discretion by admitting the government’s
identification evidence. Second, Bruce argues he is entitled
to a new trial because the government violated the discovery
obligations imposed by Brady v. Maryland, 373 U.S. 83
(1963). In particular, Bruce argues the government violated
his right to due process because it failed to disclose evidence
of another prison guard’s alleged malfeasance. We agree
with Bruce that at least some of the withheld evidence was
exculpatory, but conclude it was not material within the
meaning of Brady. The district court did not err by denying
Bruce’s motion for a new trial.

I.

On December 12, 2015, Thomas and Tracy Jones were on
their way to visit an inmate at the United States Penitentiary
in Atwater, California (Atwater), when guards conducting
random car searches stopped them at a checkpoint. As the
officers began their search, Jones admitted there were drugs
in the car he was driving. The officers found four vacuum-
packed bags of marijuana, a package of heroin, and three
marijuana cigarettes.

Jones agreed to cooperate after investigators suggested
that if he did not do so, he and his wife could face a lengthy
incarceration, and he spoke to the investigators at length.
Jones told the investigators that he and his wife had
developed an online relationship with an inmate named
Devonne Randolph over the course of the preceding year, and
that they began visiting Randolph at Atwater. After Jones
and his wife agreed to receive packages and cash for
Randolph, packages containing money and “little medicated
strips” began to arrive at their home. Jones also reported
receiving transfers of cash from people associated with other
 UNITED STATES V. BRUCE 5

Atwater inmates, and he told the officers that Randolph gave
him a telephone number to send text messages to someone he
referred to as “Officer Johnson” when packages arrived.
According to Jones, Randolph said that Officer Johnson
would deliver the packages to Randolph in prison. Jones
admitted making a delivery to Officer Johnson in September
2015, and another in November. Both deliveries took place
in a parking lot near Atwater. Jones recounted entering
Officer Johnson’s black Jeep Cherokee, handing him the
packages, and leaving.

When asked to describe Officer Johnson, Jones said
Johnson was “Hispanic looking” with dark curly hair. Jones
also described Officer Johnson wearing a Pittsburgh Steelers
hat and having a raspy voice, a heavyset build, and dark skin.
One of the officers recalled seeing another correctional
officer sporting a Steelers hat at an off-duty event. He
showed Jones a Facebook photo from the event that included
David Bruce and one other person. Bruce was the only one
in the photo wearing a Steelers hat. Without hesitation, Jones
identified Bruce as Officer Johnson.

In the days following the checkpoint interview, Jones
assisted Atwater agents in setting up an additional meeting.
An agent went to the parking lot as Jones had done before and
sent a text message announcing his arrival. Within a few
minutes, Bruce appeared driving one of two cars he owned.
Though there was “[p]lenty of parking available,” Bruce
circled the parking lot twice and slowed down each time he
passed Jones’s car. The agents stopped Bruce, who denied
being there for a drug deal but surrendered his telephone for
a forensic examination. Approximately fifteen months later,
in March 2017, Bruce was arrested and indicted for
6 UNITED STATES V. BRUCE

conspiracy, attempted possession with intent to distribute
heroin or marijuana, and accepting a bribe as a public officer.

As Bruce’s case proceeded toward trial, the government
filed an ex parte motion for in camera review. The motion
sought permission to not disclose certain information about
two Atwater officers, including Officer Paul Hayes. The
motion informed the district court that Hayes was present
during the initial search of Jones’s vehicle, but explained the
government did not intend to call him as a trial witness. The
motion disclosed to the court that Hayes’s personnel file
contained incriminating information, including more than
seventy inmate complaints about him, and that he was under
investigation for smuggling drugs into another prison. The
court granted the government’s motion and the information
concerning Hayes was not produced to defense counsel. Also
pretrial, the court denied Bruce’s motion in limine to exclude
all testimony concerning Jones’s identification of Bruce.

The government’s trial witnesses included Jones, who
told the jury he was testifying in the hope that he would not
be charged, and Robert Rush, an Atwater inmate who
described himself as Bruce’s friend. Rush testified that he
helped Bruce orchestrate the smuggling scheme, that Bruce
smuggled contraband into the prison, and that Rush sold it to
other inmates and split the proceeds with Bruce. Rush also
testified that Atwater guards pressured him to testify against
Bruce.

The government’s other witnesses included a Western
Union representative who linked money transfers from
Rush’s friends and family to Bruce, and established that
Bruce collected at least some of the money transfers using his
California driver’s license. A T-Mobile representative
 UNITED STATES V. BRUCE 7

testified that someone purchased a prepaid cell phone within
the same time frame as the investigation into the smuggling
ring and within the same geographic market as Atwater. The
witness explained that this type of phone did not require
verification of the purchaser’s full name, Social Security
number, or address. Federal agents linked calls and texts
from the cell phone to associates of various inmates and to
Jones. Officers from Atwater corroborated Jones’s account
of the events on the day he and his wife were stopped at the
checkpoint, and described the investigation that followed the
checkpoint stop.

The defense trial theory focused on demonstrating
reasonable doubt about Bruce’s participation in the narcotics
smuggling ring. Bruce chose to testify, and although he
conceded he was financially involved with inmates, he
claimed these financial ties were limited to sports betting.
Bruce testified that he drove a black Jeep Cherokee—the
same kind of car Jones described Officer Johnson
driving—and admitted that he knowingly violated prison
policy by having a financial relationship with Rush. Bruce
also admitted that he passed messages to inmates from
outside the prison, and that he received money from Rush’s
girlfriend. Bruce testified that he viewed this payment as a
“kind gesture” from Rush for his assistance with Rush’s
sports gambling. Bruce denied any other wrongdoing. The
jury convicted Bruce on all counts.

Shortly after Bruce’s verdict, the government indicted
Hayes for taking part in a drug smuggling scheme at
Victorville, a different federal prison in California. Hayes
had transferred to work at Victorville prison after
participating in the investigation at Atwater. The indictment
charged Hayes with similar crimes and revealed that the
8 UNITED STATES V. BRUCE

investigation into Hayes’s actions at Victorville began in July
of 2018, approximately sixteen months after Bruce was
indicted and seven months before Bruce’s trial started.
Bruce’s defense team immediately investigated the charges
against Hayes by conducting follow-up interviews at Atwater.
This time, inmate Rush provided significantly more detail
about the guards’ efforts to get him to cooperate with their
investigation and their efforts to persuade him to testify
against Bruce.

Rush told the defense team that Hayes was part of a group
of officers who threatened to keep Rush in segregated
housing unless he testified at Bruce’s trial. According to
Rush, the same group threatened to arrest Rush’s family and
friends. Devonne Randolph, the inmate Jones and his wife
intended to visit on the day they were stopped at the
checkpoint, did not testify at Bruce’s trial but Randolph told
the defense team in a post-trial interview that rumors among
inmates and staff suggested it was “common knowledge” that
Hayes also smuggled drugs into Atwater while he was
employed there. Randolph described correctional officers at
Atwater using much more extreme measures to persuade him
to give information about “whatever cops was allegedly
breaking the law”—including threatening to physically
assault him if he did not cooperate with the investigation. But
Randolph told the defense team that he had no personal
interactions with anyone called Officer Johnson, and that he
did not know David Bruce.

Bruce moved for a new trial based on Brady v. Maryland,
373 U.S. 83 (1963), arguing the government violated its
obligation to produce exculpatory evidence. Bruce argued
the government purposely failed to disclose that Hayes was
a target in the Victorville investigation, and that many
 UNITED STATES V. BRUCE 9

inmates had lodged complaints against Hayes while he
worked at Atwater. The government urged the court to deny
the motion. It argued it had no obligation to produce the
evidence concerning Hayes because Federal Rule of Evidence
608 would have prevented Bruce from using it for
impeachment purposes. The government also argued the
evidence of Hayes’ misconduct did not negate the plethora of
evidence against Bruce, and that the government had no
reason to know the extent of Hayes’s involvement in the
Atwater investigation because the investigation reports
contained little mention of Hayes. The district court agreed
with the government. It ruled the previously undisclosed
information did not undermine the court’s confidence in
Bruce’s verdict, and denied the motion for a new trial. Bruce
timely appealed.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We
affirm the district court’s orders admitting the identification
evidence and denying Bruce’s motion for new trial.

II.

We review de novo “[t]he constitutionality of pretrial
identification procedures.” United States v. Carr, 761 F.3d
1068, 1073 (9th Cir. 2014). We likewise review de novo the
denial of a motion for a new trial arising from the
government’s duty to produce exculpatory evidence pursuant
to Brady.1 United States v. Pelisamen, 641 F.3d 399, 408 (9th
Cir. 2011).

1
We recognize there is some tension in our case law concerning the
correct standard of review for these appeals. See United States v.
Endicott, 803 F.2d 506, 514 (9th Cir. 1986). The outcome here does not
depend on the standard of review.
10 UNITED STATES V. BRUCE

III.

We first address Bruce’s argument that the district court
erred by allowing the government to admit evidence that
Jones identified Bruce. In the district court, Bruce argued
Jones’s identification was unreliable because Jones identified
Bruce under circumstances that were impermissibly
suggestive. Specifically, after Jones described Officer
Johnson wearing a Steelers’ hat, he was shown a Facebook
photo in which Bruce was the only one wearing a Steelers’
hat, and he selected Bruce from the photo.2 The district court
was not convinced, and it denied the motion to exclude
Jones’s identification of Bruce. The court reasoned the
circumstances in Bruce’s case were unlike those in which
witnesses testify after one brief exposure to a suspect during
the commission of a crime or while witnessing a startling
event. Rather than resting on a single, quick view, Jones was
in close proximity to “Officer Johnson” on at least two prior
occasions when the two met to pass contraband. The court
determined Jones was capable of providing reliable testimony
about whether Bruce was the person he met without being
unduly influenced by the Facebook photo.

To review the constitutionality of a pretrial identification
procedure, we consider whether the “procedure was so
impermissibly suggestive as to give rise to a very substantial
likelihood of irreparable misidentification.” Simmons v.
United States, 390 U.S. 377, 384 (1968); see also Neil v.
Biggers, 409 U.S. 188, 198 (1972) (“It is the likelihood of
misidentification which violates a defendant’s right to due

2
Tracy Jones did not testify and the record is silent as to whether she
accompanied Thomas to the meetings with Officer Johnson, or was
otherwise able to identify him.
 UNITED STATES V. BRUCE 11

process . . . .”). Three factors guide our review: (1) whether
“the pretrial identification procedure was impermissibly
suggestive”; (2) whether “it was sufficiently reliable such that
it does not implicate the defendant’s due process rights”; and
(3) “even if the pretrial identification procedure was
suggestive and the identification was unreliable, this court []
examine[s] the district court’s failure to exclude the
identification for harmless error.” Carr, 761 F.3d at 1074–75
(citing Ocampo v. Vail, 649 F.3d 1098, 1114 (9th Cir. 2011)).

An identification procedure is suggestive when it focuses
upon a single individual thereby increasing the likelihood of
misidentification. United States v. Montgomery, 150 F.3d
983, 992 (9th Cir. 1998). We examine the totality of the
circumstances to determine whether an identification
procedure was unduly suggestive. United States v. Bagley,
772 F.2d 482, 492 (9th Cir. 1985); Neil, 409 U.S. at 196.
Among other factors, we have considered the witness’s
opportunity to view the person being identified, the witness’s
degree of attention, the accuracy of the witness’s prior
description, the level of certainty demonstrated by the witness
at the confrontation, and the length of time between the prior
observation of the suspect and the confrontation. Neil,
409 U.S. at 199–200. “Any weaknesses in eyewitness
identification testimony can ordinarily be revealed by
counsel’s careful cross-examination of the eyewitnesses.”
United States v. Labansat, 94 F.3d 527, 530 (9th Cir. 1996).

Bruce argues that the use of the single Facebook photo
violates longstanding precedent condemning identification
techniques that focus attention on only one person. He argues
such techniques are inherently suggestive and that the use of
the Facebook photo was especially suggestive in this case
because, according to Bruce, he and Hayes look alike: both
12 UNITED STATES V. BRUCE

have Hawaiian and Caucasian ancestry and “nearly identical
body styles.” Bruce points out that Jones’s trial testimony
was inconsistent about whether he told the Atwater officers
that Officer Johnson always wore a hat, and he argues that
Jones must have guessed about Johnson’s height because
Johnson was sitting in his car both times Jones met with him.

Bruce is correct that Jones was uncertain in his trial
testimony about whether he told the officers who stopped him
that Officer Johnson always wore a hat. Jones was also
unsure about whether he had said the hat was a Steelers hat.
And Jones testified that Officer Johnson was about “five-four,
five-five,” only to later admit that he could not be sure of this
detail because he had never seen Officer Johnson standing.3
Bruce contends these inconsistencies in Jones’s trial
testimony show he was never sure of his identification and
that the evidence of Jones’s identification should have been
excluded for this reason. We disagree.

We are persuaded the district court reasonably concluded
the use of the Facebook photo was not so suggestive that it
rendered Jones’s identification unreliable. See Neil, 409 U.S.
at 199–200. Unlike witnesses who are startled by a crime in
progress, Jones ventured out to meet with “Officer Johnson”
on two occasions and voluntarily got into his car both times.
The two men were in close proximity and the second meeting
took place just 15 days before Jones was stopped and
questioned at the checkpoint. The Atwater officers testified
that Jones identified Bruce from the photo without hesitation,
and Jones testified that he was certain of the identification at
the time he made it in 2015. Jones explained to the jury that
before he was shown the Facebook photo, he accurately

3
The record indicates Bruce is five-feet ten-inches tall.
 UNITED STATES V. BRUCE 13

described details concerning Officer Johnson’s beard, hair
color, body type, and clothing. Jones also recalled that
Officer Johnson drove a black Jeep Cherokee.

More than three years passed between the day Jones
identified Bruce from the Facebook photo and the day Jones
testified at Bruce’s trial. The jury was able to consider
whether the passage of time may have accounted for the
discrepancies between the identification Jones made in 2015
and the details he was able to recall at trial. The jury was also
able to consider defense counsel’s cross-examination of Jones
and it heard the testimony of other witnesses who had been
present during the interview following the checkpoint stop.
See United States v. Higginbotham, 539 F.2d 17, 23 (9th Cir.
1976) (finding no prejudice resulted from admission of
identification evidence because jury heard cross-examination
of identifying witness). Certainly, the jury had reason to
question Jones’s credibility because it knew investigators
suggested to Jones that he and his wife could avoid charges
if Jones cooperated, and the jury knew Jones was eager to
cooperate. Bruce contends that Jones’s description of
Johnson matched Hayes as well as Bruce, but he did little to
develop or support this argument in the district court and the
record does not allow us to meaningfully assess this
comparison on appeal. Even if the Facebook photo was
suggestive, our consideration of the totality of the
circumstances persuades us that the district court did not err
by admitting this identification evidence.

IV.

Bruce next argues the district court erred by denying his
motion for a new trial because the government violated Brady
14 UNITED STATES V. BRUCE

by failing to produce evidence of Hayes’s misconduct.4 The
government’s pretrial motion sought an order permitting it to
not disclose: (1) over seventy inmate complaints about Hayes,
including some that alleged physical abuse; (2) that Hayes
had been charged with domestic violence and was arrested for
violating a protective order; (3) that two other investigations
against Hayes were pending for physical abuse of inmates
and for threatening inmates; and (4) that as of July 2018,
Hayes was being investigated for smuggling contraband
drugs into an unspecified prison, and had been observed
meeting an inmate’s girlfriend in a Home Depot parking lot
and accepting a small package from her. The motion
disclosed that an inmate instructed his girlfriend to meet an
orange SUV with “Vegas plates” in a parking lot and that the
description of the vehicle matched one that Hayes owned.
The motion acknowledged that Hayes had been present at the
Atwater checkpoint in 2015 and helped search Jones’s car,
but it argued the information about Hayes’s alleged
malfeasance need not be disclosed because other witnesses
could testify about the contraband found in Jones’s car.5
Under a heading titled “Expected Defense Arguments,” the
government’s motion only stated that if the evidence
regarding Hayes were disclosed to the defense, the defense
might seek to call him for the sole purpose of bringing out
impeachment evidence. The government asserted that
Evidence Rule 608 would not allow the evidence to be used

4
Bruce also made passing mention of Giglio v. United States,
405 U.S. 150 (1972), and United States v. Henthorn, 931 F.2d 29 (9th Cir.
1991), but on appeal, he frames his claim as a Brady argument.
5
On appeal, Bruce repeatedly asserts that Hayes found the contraband
in Jones’s car, but as the district court recognized, the record shows a
different officer found the drugs.
 UNITED STATES V. BRUCE 15

in this way. The motion did not anticipate any other
arguments the defense might raise regarding the
discoverability of the withheld evidence.6

Bruce filed a motion for new trial after Hayes was
indicted. The motion argued the government had been aware
that Hayes was a target in the Victorville investigation and
that it violated its duty to disclose this information. More
specifically, Bruce charged the government “purposefully
crafted” its case to avoid relying on Hayes so it could
withhold evidence reinforcing Bruce’s theory that a different
culprit was responsible for smuggling contraband into
Atwater. See U.S. v. Bagley, 473 U.S. 667, 676 (1985).
Bruce cited post-trial interviews with inmates Rush and
Randolph as proof that Hayes had been extensively involved
in the Atwater investigation and contended the government’s
pre-trial motion left the district court in the dark by
minimizing Hayes’s involvement in the investigation into
Bruce’s smuggling. In response, the government conceded it
had intentionally avoided calling Hayes as a witness because
it knew Hayes was subject to being impeached, but the
government maintained it had complied with Brady.

During the hearing on Bruce’s motion for new trial, the
district court took issue with the government’s pre-trial

6
But see DEP’T OF JUSTICE, POLICY REGARDING DISCLOSURE OF
EXCULPATORY AND IMPEACHMENT INFORMATION: DISCLOSURE OF
EXCULPATORY AND IMPEACHMENT INFORMATION BEYOND THAT WHICH IS
CONSTITUTIONALLY AND LEGALLY REQUIRED, 9-5.001(C) (2020),
https://www.justice.gov/jm/jm-9-5000-issues-related-trials-and-other-c
ourt-proceedings#:~:text=Brady%20v.,material%20to%20guilt%20or%
20punishment. (requiring disclosure of qualifying evidence without regard
to admissibility). The same policy requires disclosure of qualifying
evidence without regard to materiality. Id.
16 UNITED STATES V. BRUCE

description of the role Hayes played in the Atwater
investigation. The court described the government’s pretrial
motion as creating “the impression that . . . Hayes was just
one of the officers who happened to be present at the . . .
checkpoint,” and observed that the government’s pre-trial
motion “le[ft] out any other involvement by Hayes” in the
investigation. The court questioned why the government
presented such sparse details in its pre-trial motion, and
suggested that it might have “thought a little harder” about
the motion had it known the full extent of Hayes’s
involvement. The government again conceded that
“additional facts [] could have been provided” in the ex parte
motion, but it argued the undisclosed information did not
satisfy Brady’s materiality test because it did not negate any
of the evidence against Bruce. The government stressed that
it understood Hayes had played only a small role in
developing the case against Bruce at the time it prepared its
ex parte motion. The government also repeated its argument
that Bruce would not have been able to introduce evidence of
Hayes’s misconduct.

The district court agreed with the government that there
had been no Brady violation. The court ruled there was
“overwhelming evidence that support[ed] the jury’s verdict
[against Bruce] completely and totally,” and it pointed out
that no witness had recanted his trial testimony, and that the
post-trial interviews did not controvert any of the
government’s other evidence. The court found “nothing to
support” Bruce’s theory that Hayes was the real perpetrator
at Atwater, and it denied Bruce’s motion for new trial.
 UNITED STATES V. BRUCE 17

A.

In Brady v. Maryland, the Supreme Court held that
prosecutors must disclose to the defense “evidence favorable
to an accused . . . [that] is material either to guilt or to
punishment” prior to trial. 373 U.S. at 87. This duty extends
“irrespective of the good faith or bad faith of the
prosecution.” Id. We have explained that failing to disclose
material, favorable evidence violates due process because it
compromises the integrity of the defendant’s trial. United
States v. Shaffer, 789 F.2d 682, 687 (9th Cir. 1986). For this
reason, “[t]he prosecution’s duty to disclose favorable
evidence is not dependent upon a request from the accused,
and even an inadvertent failure to disclose may constitute a
violation.” Bailey v. Rae, 339 F.3d 1107, 1113 (9th Cir.
2003) (citing United States v. Agurs, 427 U.S. 97, 107
(1976)).

The second part of the Brady test—that the non-disclosed
evidence be “material”—limits Brady’s reach. See id. (“To
be sure, not every violation of the duty to disclose constitutes
a Brady violation.”). “[T]here is never a real ‘Brady
violation’ unless the nondisclosure was so serious that there
is a reasonable probability that the suppressed evidence
would have produced a different verdict.” Strickler v. Greene,
527 U.S. 263, 281 (1999). “A ‘reasonable probability’ is a
probability sufficient to undermine confidence in the
outcome.” Bagley, 473 U.S. at 682; see also Kyles v. Whitley,
514 U.S. 419, 434 (1995).

To succeed on his Brady claim, Bruce was required to
show: (1) the evidence at issue was favorable to him, either
because it was exculpatory or impeaching; (2) the evidence
was suppressed by the State, either willfully or inadvertently;
18 UNITED STATES V. BRUCE

and (3) that he was prejudiced. Shelton v. Marshall, 796 F.3d
1075, 1083 (9th Cir.) (quoting Strickler, 527 U.S. at 281–82)
amended on reh’g, 806 F.3d 1011 (9th Cir. 2015). Because
there is no doubt the government did not disclose the
challenged evidence, we consider only whether it was
exculpatory and material.

B.

Bruce identifies two categories of undisclosed
information from the government’s motion in limine that he
contends are exculpatory: (1) evidence that Hayes was a
target of an investigation into a very similar smuggling ring
at Victorville; and (2) evidence showing that numerous
inmate complaints had been made against Hayes prior to the
Bruce investigation. Somewhat more obliquely, Bruce
suggests the government should have disclosed that Hayes
pressured some inmates to offer evidence against Bruce.

Exculpatory evidence includes evidence that is favorable
to the defense, meaning “evidence that tends to prove the
innocence of the defendant.” Amado v. Gonzalez, 758 F.3d
1119, 1134 (9th Cir. 2014); United States v. Cano, 934 F.3d
1002, 1023 (9th Cir. 2019) (observing that Brady requires the
government disclose “material, exculpatory, or otherwise
helpful” evidence). “Any evidence that would tend to call the
government’s case into doubt is favorable for Brady
purposes.” Milke v. Ryan, 711 F.3d 998, 1012 (9th Cir. 2013)
(citing Strickler, 527 U.S. at 290); see also United States v.
Bundy, 968 F.3d 1019, 1038–39 (9th Cir. 2020) (citing Kyles,
514 U.S. at 437) (evidence showing tactical units surrounding
property where defendants were engaged in standoff with
federal officers, and evidence showing government
surveillance of the property, was exculpatory because it
 UNITED STATES V. BRUCE 19

rebutted government’s theory that defendants did not fear
government snipers). “To say that evidence is ‘exculpatory’
does not mean that it benefits the defense in every regard or
that the evidence will result in the defendant’s acquittal.”
Bailey, 339 F.3d at 1115. Rather, “exculpatory” connotes a
broader category of evidence that, “if disclosed and used
effectively, [] may make the difference between conviction
and acquittal.” Bagley, 473 U.S. at 676; see Bailey, 339 F.3d
at 1115 (granting new trial where government failed to
disclose reports casting doubt on star witness’s testimony,
and rejecting argument that certain passages “somehow
negate[d] the documents’ exculpatory nature”).

The obligations imposed by Brady are not limited to
evidence prosecutors are aware of, or have in their
possession. Rather, individual prosecutors have “the duty to
learn of any favorable evidence known to others acting on the
government’s behalf” as part of their “responsibility to gauge
the likely net effect of all such evidence” to the case at hand.
Kyles, 514 U.S. at 437.

Here, the government argues the withheld evidence
concerning Hayes was not exculpatory because it “was not
material to Bruce’s guilt or innocence” and did not negate the
other evidence against Bruce. This conflates Brady’s
exculpatory and materiality requirements.7 Bagley, 473 U.S.
at 676. On appeal, the government suggests the evidence
would not have been admissible pursuant to Rule of Evidence

7
The government cites United States v. Agurs, 427 U.S. 97 (1976) in
support of its argument. Agurs addresses materiality, not the standard for
determining whether evidence is exculpatory, and the three materiality
standards articulated in Agurs have since been overruled. United States
v. Shaffer, 789 F.2d 682, 687 (9th Cir. 1986).
20 UNITED STATES V. BRUCE

401 or Rule 403, but this argument also misses the mark. The
standard for relevance is easily met because evidence that one
of Bruce’s co-workers was accused of engaging in a very
similar prison smuggling ring makes it somewhat more
probable that a third party was responsible for the crimes
Bruce was accused of committing. Fed. R. Evid. 401. The
government did not raise a Rule 403 objection in the trial
court, thereby forfeiting that issue.

In the trial court and on appeal, the government’s
response failed to acknowledge its broader ethical
responsibility. See Turner v. United States, 137 S. Ct. 1885,
1893 (2017) (observing “government’s interest in a criminal
prosecution is not that it shall win a case, but that justice shall
be done”); see also Kyles, 514 U.S. at 437–40 (recognizing
“the prosecution’s responsibility for failing to disclose
known, favorable evidence rising to a material level of
importance is inescapable” and for that reason, “a prosecutor
anxious about tacking too close to the wind” will err on the
side of disclosure in order to “justify trust in the prosecutor”
and to “preserve the criminal trial . . . as the chosen forum for
ascertaining the truth about criminal accusations”); see also
id. (observing the ABA Standards for Criminal Justice “call
generally for prosecutorial disclosures of any evidence
tending to exculpate or mitigate”).

Bruce persuasively argues that evidence of Hayes’s
smuggling at Victorville was exculpatory because it
supported the defense theory that a third party was
responsible for the crimes he was accused of committing. See
United States v. Jernigan, 492 F.3d 1050, 1054 (9th Cir.
2007); Kyles, 514 U.S. at 421 (observing that Brady “turns on
the cumulative effect of all such evidence suppressed”). He
argues this is particularly so if the evidence that Hayes was a
 UNITED STATES V. BRUCE 21

target in the Victorville investigation is viewed in conjunction
with the other withheld evidence concerning Hayes.

The government strenuously argues it was entitled to
structure its case to avoid producing evidence that could have
been used to impeach Hayes and that it was free to do so
because it had no obligation to call Hayes as a witness. But
the fact the government took the step of filing an ex parte
motion seeking the court’s permission not to disclose
evidence of Hayes’s misconduct undercuts the suggestion that
the government had no reason to question whether the
undisclosed evidence was exculpatory. See Kyles, 514 U.S.
at 439 (explaining the prudent prosecutor’s better course is to
take care to disclose any evidence favorable to the defendant
in order to comply with Brady). We agree the government
had no obligation to call Hayes as a witness, but the
government still bore the burden of investigating whether
potentially exculpatory evidence existed. See Browning v.
Baker, 875 F.3d 444, 459 (9th Cir. 2017) (quoting Strickler,
527 U.S. at 280) (emphasizing prosecution’s special status in
criminal justice system heightens its burden of disclosure).

The government separately argues it cannot be held
responsible for disclosing the extent of Hayes’s involvement
in the Atwater investigation because the government had no
way of knowing that Hayes had contact with Atwater inmates
who witnessed or participated in the Atwater scheme. Our
case law also forecloses this argument. “Because prosecutors
are in a ‘unique position to obtain information known to other
agents of the government,’” they have an obligation to
“disclose what they do not know but could have learned.”
Cano, 934 F.3d at 1023 (alterations omitted). Prosecutors
cannot turn a blind eye to their discovery obligations.
22 UNITED STATES V. BRUCE

We are not persuaded by the government’s separate
contention that because Hayes and Rush were identified in
the documents the government did produce, it was incumbent
upon the defense to investigate Hayes and Rush and uncover
potentially favorable evidence itself. This argument
overlooks that Bruce’s counsel had no reason to suspect that
further discovery into Hayes’s participation in the Atwater
investigation could have yielded information supporting the
defense theory. Kyles, 514 U.S. at 437.

Our conclusion that the government fell short of meeting
its Brady discovery obligation here is influenced by the ex
parte motion the government filed before trial. In it, the
government memorialized its awareness that Hayes was
present when Jones’s vehicle was stopped and that Hayes was
under investigation for introducing contraband into another
federal prison in a very similar smuggling operation. Hayes
was observed meeting an inmate’s girlfriend in a Home
Depot parking lot and accepting a small package from her.
The motion also disclosed to the court that the government
possessed an email exchange in which the inmate instructed
his girlfriend to meet an SUV matching the description of
Hayes’s SUV. In short, by the time the government filed its
motion seeking permission to withhold evidence of Hayes’s
alleged misconduct, it knew Hayes was suspected of running
a prison smuggling ring using the same method Bruce was
accused of using at Atwater. In addition, the government was
undoubtedly aware that Hayes held a supervisory position at
Atwater while Bruce’s investigation was ongoing, and the
government knew that its main trial witness, Rush, had been
moved to segregated housing and questioned by prison
officials. Whether memorialized in an investigation report or
not, the government was certainly in a position to know
Hayes was one of the officers who questioned Rush. Indeed,
 UNITED STATES V. BRUCE 23

Rush volunteered in his trial testimony that Hayes was one of
the officers who moved him to segregated housing and
threatened to keep him there if Rush did not testify against
Bruce. Despite the stark similarities between the Atwater
scheme and what was known about the smuggling at
Victorville, the record does not show, and the government
does not argue, that it ever followed up to learn what role
Hayes played in the Atwater investigation, nor that the
government took any steps to determine whether the two
smuggling rings were in fact unrelated.8

The government’s pretrial submission to the district court
limited its “Expected Defense Arguments” to a one-sentence
assertion that if the evidence were produced, the defense
might seek to call Hayes for the sole purpose of bringing out
impeachment information. Neither the ex parte motion nor
the transcript of the argument held on Bruce’s motion for new
trial show the government ever took any steps to verify that
the two smuggling rings were separate. Nor does the
government argue on appeal that it considered whether
exculpatory material might exist. The government collapses
Brady’s three-part test into an examination of materiality.

The district court was not persuaded the withheld
evidence was exculpatory, largely because Hayes was

8
Post-trial, Randolph suggested it was “common knowledge” Hayes
was involved in smuggling at Atwater. But the record on appeal does not
show whether Randolph ever admitted to having personal knowledge
about any smuggling. Nevertheless, contrary to the government’s
suggestion, it is plain the government knew the Victorville operation was
remarkably similar to the one at Atwater and the government could have
learned that Hayes played a role in the Atwater investigation that went
beyond the checkpoint stop and included having contact with inmates who
were accused or admitted to participating in the scheme.
24 UNITED STATES V. BRUCE

accused of smuggling after Bruce’s smuggling had been
uncovered and because Hayes was accused of smuggling at
Victorville rather than Atwater. Respectfully, we disagree.
The responsibility imposed by Brady includes looking
beyond evidence in the prosecutor’s file; there were striking
similarities between the two smuggling operations; Hayes
was directly involved in the Atwater investigation that led to
Bruce’s arrest and had access to some of the witnesses who
testified against Bruce; and Bruce’s trial theory argued
someone else was responsible for the smuggling at Atwater.
Under the facts presented, we conclude this evidence was
exculpatory within the meaning of Brady and at the very least
the government was required to investigate it.

C.

We evaluate the trial as a whole to determine whether the
“admission of the suppressed evidence would have created a
reasonable probability of a different result.” United States v.
Price, 566 F.3d 900, 911 (9th Cir. 2009) (internal quotation
marks omitted). “In considering whether the failure to
disclose exculpatory evidence undermines confidence in the
outcome, judges must undertake a careful, balanced
evaluation of the nature and strength of both the evidence the
defense was prevented from presenting and the evidence each
side presented at trial.” Jernigan, 492 F.3d at 1054 (internal
quotation marks omitted); see Comstock v. Humphries,
786 F.3d 701, 711–12 (9th Cir. 2015) (reversing conviction
where lack of direct evidence combined with suppression of
a witness’s “expressed doubts and recollections”
“substantially diminished, if not defeated” the state’s ability
to prove guilt beyond a reasonable doubt). Evidence is
sometimes considered material if the government’s other
evidence at trial is circumstantial, or if defense counsel is able
 UNITED STATES V. BRUCE 25

to point out significant gaps in the government’s case through
cross-examination, or if witnesses provided inconsistent and
inaccurate testimony. See Bailey, 339 F.3d at 1115–16
(granting new trial where suppressed report went “to the heart
of [the accused’s] defense and without it” the verdict was not
“worthy of confidence”).

Our decisions in Jernigan and Price are instructive. In
Jernigan, we remanded for a new trial because the
government did not disclose the existence of another bank
robber for whom the defendant “may well have been
mistaken.” 492 F.3d at 1055. When considered with other
inconsistencies in witness testimony and the lack of direct
evidence against Jernigan, the omitted evidence suggested the
defendant may have been innocent. In Price, our court
remanded for a new trial because the prosecution failed to
disclose its star witness’s past convictions, which could have
been used to undermine his credibility. The government’s
only direct evidence of Price’s guilt came from this witness’s
testimony and in its closing argument, the government urged
that the witness had no reason to lie. We explained that this
created a “central weakness” for the defense. 566 F.3d at
913–14. Coupled with Price’s showing that the government’s
other evidence was circumstantial and inconsistent, we
concluded the undisclosed information was material. Id.

Bruce argues the information the government failed to
disclose was material because it would have allowed the jury
to find reasonable doubt about whether Hayes was
responsible for the smuggling operation at Atwater. He
contends there is a substantial likelihood the verdict would
have been different if the jury had heard that Hayes was
suspected of smuggling at Victorville and knew that, as a
supervisor at Atwater, Hayes had access to the witnesses who
26 UNITED STATES V. BRUCE

testified against him. Bruce also suggests the investigation
reports suspiciously failed to document Hayes’s involvement
in the Atwater investigation, and maintains this fact could
have been used to buttress his defense theory that there was
reasonable doubt about his guilt. See Kyles, 514 U.S. at 420
(holding the State’s disclosure obligation turns on the
cumulative effect of all suppressed evidence favorable to the
defense).

Our task is to compare the evidence against Bruce with
the gaps in the evidence presented to the jury to determine
whether the undisclosed evidence undermines our confidence
in the outcome. See Price, 566 F.3d at 911. We conclude it
does not. First, though the jury did not have all the details, it
was aware that Rush was pressured to testify against Bruce.
Rush told the jury as much, volunteering that Hayes was one
of the officers who moved Rush into segregated housing and
threatened to keep him there if he did not testify. Rush also
testified that he felt additional pressure because officials
interviewed his girlfriend and his relatives during their
investigation. The jury was not left with conflicting
testimony about the prison officials’ efforts to uncover the
extent of the smuggling ring. The investigators corroborated
Rush’s account that he was moved to segregated housing, and
they testified that another inmate expressed that investigators
threatened his mother and brother during follow-up
questioning.

The evidence against Bruce was substantial and we agree
with the district court that in their post-trial interviews neither
Jones nor Rush recanted their testimony about Bruce’s
involvement. By the district court’s account, Rush “very
credibly claimed” at trial that he and Bruce were friends,
which was why Rush resisted cooperating with investigators.
 UNITED STATES V. BRUCE 27

The district court described Rush as demonstrating “no joy in
testifying against Mr. Bruce,” and observed that Jones was
“quite, quite credible,” and that his testimony had been
“devastating” to Bruce. Considerable circumstantial evidence
also implicated Bruce. Atwater investigators described
Jones’s account of the checkpoint stop and that Bruce showed
up, at the appointed time, for the meeting Jones arranged after
he agreed to cooperate. Representatives from Western Union
and T-Mobile linked Bruce to monetary transactions from
Atwater inmates’ friends and family members, and also
linked Bruce to the cell phone used to communicate with
Jones.

Bruce testified that his financial dealings with inmates
showed only that he engaged in sports gambling with them,
but the jury was not required to credit this testimony. Bruce
did not deny that he had accepted money from inmates, or
that the cell phone was used to arrange meetings to pass the
contraband. Unlike Price, the government’s case did not
bank on a single star witness; Rush and Jones corroborated
each other’s accounts and their testimony was heavily
corroborated by other evidence. 566 F.3d at 913–14; see,
e.g., Comstock, 786 F.3d at 711–12; Bailey, 339 F.3d
at 1115–16. The weight and force of the evidence against
Bruce sets this case apart from others in which we have found
Brady’s materiality element satisfied.

Though Bruce suggests the withheld evidence would have
opened the door for the jury to hear that Hayes was
smuggling drugs into Atwater, he offers no real evidence that
Hayes did smuggle contraband into Atwater. Bruce’s
speculation that Hayes may have been left alone with Jones
or his wife fares no better. He implies that Hayes may have
had an opportunity to influence their statements, but the
28 UNITED STATES V. BRUCE

investigating officers’ testimony suggests several
investigators were present when Jones and his wife were
questioned.

Because we view the trial as a whole, our confidence in
the verdict is not undermined by the government’s failure to
disclose that Hayes was a subject of an investigation at
Victorville, that numerous inmates had complained about
him, and the extent of his involvement in the Bruce
investigation. The district court did not err by denying
Bruce’s motion for a new trial.

AFFIRMED.