Wilson v. Whitley

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

_____________________

No. 93-3201
_____________________

LEO WILSON,

Petitioner-Appellee,

versus

JOHN P. WHITLEY, Warden,
Louisiana State Penitentiary,

Respondent-Appellant.

_________________________________________________________________

Appeal from the United States District Court
for the Eastern District of Louisiana
_________________________________________________________________

(July 28, 1994)

Before SMITH and BARKSDALE, Circuit Judges, and WALTER, District
Judge:1

RHESA HAWKINS BARKSDALE, Circuit Judge:

Louisiana challenges the habeas relief granted Leo Wilson on

his state conviction for armed robbery, the issue being whether the

prosecution violated Brady v. Maryland, 373 U.S. 83 (1963), by not

disclosing a police report that could have been used to impeach the

credibility of one of the two victims (Leonard Pierce), the sole

witness to definitely identify Wilson. The determinative question

is whether the report was "material"; this is, whether "there is a

reasonable probability that, had the [report] been disclosed to

[Wilson], the result of the [jury trial] would have been

1
District Judge of the Western District of Louisiana,
sitting by designation.
different." United States v. Bagley, 473 U.S. 667, 682 (1985).

This case presents a close call; but, because we conclude that

there is not a reasonable probability that the result of the trial

would have changed, we REVERSE and REMAND.

I.

In March 1983, a jury convicted Wilson for the armed robbery

in 1982 of Pierce and Charles Bowie. He was sentenced to two

concurrent 50-year terms of imprisonment at hard labor, without the

benefit of probation, parole, or suspension of sentence. The

conviction was affirmed on direct appeal. State v. Wilson, 463 So.

2d 655, 656 (La. Ct. App. 4th Cir. 1985), writ denied, 466 So. 2d

466 (La. 1985).

After exhausting state remedies, State v. Wilson, 587 So. 2d

691 (La. 1991), Wilson sought federal habeas relief, claiming,

inter alia, that his conviction was obtained in violation of due

process because the prosecution suppressed material evidence

(police report) favorable to his defense. After an evidentiary

hearing, the magistrate judge found that the prosecution had not

disclosed the report, which included Pierce's description of the

robbery to the investigating officers. And, after comparing the

versions of the robbery presented in the report and in Pierce's

trial testimony, the magistrate judge found that they differed in

material respects, and recommended that relief be granted pursuant

to the due process claim.2 In a most thorough opinion, the

2
Wilson also claimed that his trial counsel was
ineffective for failing to object to the judge entering the jury
room to deliver photographs used for a photographic line-up,
asserting that this tended to indicate the court's endorsement of
Pierce's in-court identification. Neither the magistrate judge
district court adopted the recommendation and granted habeas

relief.

II.

In Brady v. Maryland, the Supreme Court held 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 punishment, irrespective of the good faith or

bad faith of the prosecution". 373 U.S. at 87. "The guiding

principle of Brady is that a jury should be permitted to hear and

evaluate all relevant evidence going to a defendant's guilt or

punishment". Fulford v. Maggio, 692 F.2d 354, 357 (5th Cir. 1982),

rev'd in part on other grounds, 462 U.S. 111 (1983). As stated in

United States v. Bagley:

The Brady rule is based on the requirement of
due process. Its purpose is not to displace the
adversary system as the primary means by which
truth is uncovered, but to ensure that a
miscarriage of justice does not occur. Thus, the
prosecutor is not required to deliver his entire
file to defense counsel, but only to disclose
evidence favorable to the accused that, if
suppressed, would deprive the defendant of a fair
trial.

473 U.S. at 675 (footnotes omitted).

For obvious due process (fair trial) reasons, impeachment

evidence, as in issue here, is covered by Brady. United States v.

Bagley, 473 U.S. at 676. The Court had earlier held in Giglio v.

United States, 405 U.S. 150 (1972), that, "[w]hen the `reliability

of a given witness may well be determinative of guilt or

innocence,' nondisclosure of evidence affecting credibility falls

nor the district court reached this Sixth Amendment claim.
within [Brady's] general rule". Id. at 154 (quoting Napue v.

Illinois, 360 U.S. 264, 269 (1959)).

To prevail under Brady, Wilson must show that (1) the report

was not disclosed,3 (2) it contained evidence favorable to his

defense, and (3) that evidence was material. United States v.

Sink, 586 F.2d 1041, 1051 (5th Cir. 1978), cert. denied, 443 U.S.

912 (1979). The first factor is not in issue.4

A.

3
"Brady rights are not denied where the information was
fully available to the defendant and his reason for not obtaining
and presenting such information was his lack of reasonable
diligence". United States v. Dean, 722 F.2d 92, 95 (5th Cir.
1983) (deputy sheriff who testified for defendant easily could
have told defendant the content of his police report and grand
jury statements); see also Smith v. Black, 904 F.2d 950, 964 (5th
Cir. 1990) (Brady "exempts information that the defense could
have obtained from other sources by exercising reasonable
diligence"), cert. granted and judgment vacated on other grounds,
___ U.S. ___, 112 S. Ct. 1463 (1992), reinstated in relevant part
on remand, 970 F.2d 1383 (5th Cir. 1992); United States v.
Wicker, 933 F.2d 284, 292-93 (5th Cir.) (no Brady violation where
defense made no specific request for witness fee information,
defense counsel was aware that government was paying witness'
hotel expenses during trial, and procedure for payment of witness
fees is public information), cert. denied, ___ U.S. ___, 112 S.
Ct. 419 (1991); Fulford v. Maggio, 692 F.2d at 357 (no reversible
error where disputed police report was used by defense at trial
for purposes of impeachment, despite the fact that the report
was, in all probability, wrongfully withheld by the prosecution);
United States v. Fogg, 652 F.2d 551, 559 (5th Cir. 1981)
(considering defendant's close relationship with two witnesses
who testified for Government at trial, defendant could have
obtained the contents of their grand jury statements before
trial), cert. denied, 456 U.S. 905 (1982).
4
Under Louisiana law in effect at the time of Wilson's
trial, police reports were not discoverable. See Kirkpatrick v.
Whitley, 992 F.2d 491, 496 (5th Cir. 1993). In 1984, Louisiana
amended its public records statutes to provide for public
disclosure of initial reports. See Hudson v. Whitley, 979 F.2d
1058, 1061 (5th Cir. 1992). At the federal evidentiary hearing,
Wilson testified that, in 1989, his mother obtained the report
from the district attorney's office. And, at oral argument, the
State conceded that the report was not available to Wilson until
the post-conviction proceedings.
 In order to determine whether the report contained evidence

favorable to Wilson, it is necessary to contrast, in detail, the

report and Pierce's trial testimony. The report (narrative

section) describes the robbery as follows:

Leonard Pierce stated [to] reporting officers
M. Stewart and R. Monteverde that on 9-10-82\4:30
PM he and Charles Bowie were walking lake bound on
A. P. Tureaud toward Broad St. Upon reaching N.
Broad St. and A. P. Tureaud he noticed 2 unk blk
male behind him. L. Pierce didn't pay any
attention to them and continued home down Florida
Ave. Upon reaching Florida Ave. and A. P. Tureaud
L. Pierce saw a third unk NM come from behind the
pumping station toward he and C. Bowie. L. Pierce
also states that one first two unk NM came from
behind and demand money from he and C. Bowie with
4" folding buck knife. They refused. Then the
first unk NM, with knife struck L. Pierce in face
and struggle [e]nsued. L. Pierce was then forced
on ground by NM #1 who jabbed L. Pierce in lower
back and buttock telling him to stay [on the]
ground and to give up the money. Wanted Subject #1
then went into L. Pierce's back pocket removing his
wallet and taking 1 $5.00 bill from his wallet.

Leonard Pierce also stated that w[h]il[e] this
was going on wanted subject #2 took $6.00 from
Charles Bowie and the third wanted subject stood
watch. All three wanted subjects heard a car
coming and fled down Florida to Broad St. then
unknown. Mr. Pierce and Bowie then tried to follow
them but no avail. Mr. L. Pierce then continued
home where he phoned the police. He also noticed
that his pants were cut and it was then he noticed
a small incision made by wanted subject #1 in his
lower left buttock....

Charles Bowie was contacted by phone by
Officer M. Stewart and confirmed the above
statement by L. Pierce. Mr. C. Bowie was not
injured during the armed robbery.

As discussed infra, of critical importance is the fact that

Pierce did not sign the report, and there is no evidence that he

otherwise adopted the narrative as his own statement. (Pierce did

not testify at the federal evidentiary hearing.)
 At trial, Pierce gave the following account of the robbery:

I was going down A. P. Touro. At the end of
A. P. Touro and Broad, I normally go behind the
pumping station across the railroad tracks .... As
we were walking around the pumping station, ... a
field was on my left and the pumping station was on
my right. A guy cut across the field. I saw
another guy come from the pumping station and
another one came from behind me with a knife. The
guy with the knife put the knife to my back and
told me to give him my money and I refused and the
guy that cut across the field came up to me and he
tried to go into my pockets and I also stopped
that. ... I had one of his arms, I broke free and
he hit me knocking my glasses off.

Pierce identified Wilson as the person who struck him. He

testified that, before his glasses were knocked off, he got a good

look at Wilson, and that

[a]fter he knocked my glasses off, I turned to see
what had happened, if they had broken or not. When
I turned, he [Wilson] grabbed me from behind and
wrestled me to the ground.

I tried to get off the ground. That is when
the person came up behind me with the knife. He
had gone over to my friend and he held him up and
he gave him his money and he came back over to me
with the knife and the knife was placed in my side.
I had to arch my back or I would have been stabbed.
They went through my pockets and took the money out
and just dropped the wallet. They took the knife
and they were pricking me with the knife. He must
have hit me one good time and I didn't even know
it, but at that time, that is when I was stabbed.
A car came and the two got up and the look-out was
already down by the corner and they all ran.

Pierce testified that Wilson was not the one who stabbed him,

but instead was the one who was holding him; that Wilson held a

knife to his back, however, at some point during the incident; and

that he was "absolutely sure" of his identification, and had "no

doubt" that Wilson was the person who robbed him, knocked off his

glasses, held the knife to his back, and punched him. On cross-
examination, Pierce testified that he first saw Wilson when Wilson

"cut across the field". He testified further that the closest

Wilson got to him was "[f]ace to face", "less than a foot away from

my face".

To the extent there are discrepancies between the report and

Pierce's testimony, they are favorable to Wilson, because they

could have been used to impeach Pierce's credibility and his

identification of Wilson.5 Accordingly, we turn to whether the

5
The district court held that there were material
discrepancies between the report and Pierce's trial testimony
concerning the manner in which the three assailants approached
the victims, and the identity of the person who struck Pierce in
the face, pushed him to the ground, and took the money from his
pocket. It concluded that the information in the report was
favorable to Wilson, finding that, according to the report,
Wilson was "not clearly implicated in the robbery at all".

The report does implicate Wilson. As the district court
noted, Wilson fits the report's description of "Wanted Subject
#2", discussed infra. The report states that "wanted subject #2
took $6.00 from Charles Bowie". Accordingly, the report is not
exculpatory as to Wilson; instead, it implicates him as one of
the three perpetrators of the armed robbery, each of whom aided
and abetted the others.

The jury instructions are not included in the record;
therefore, we are unable to confirm that the jury was instructed
on Louisiana law governing the liability of principals. Under
Louisiana law, "[a]rmed robbery is the theft of anything of value
from the person of another or which is in the immediate control
of another, by use of force or intimidation, while armed with a
dangerous weapon". State v. Lawry, 430 So. 2d 153, 155-56 n.4
(La. Ct. App. 2d Cir. 1983) (quoting La. Rev. Stat. 14:64). A
person is criminally liable as a principal, "whether present or
absent, and whether they directly commit the act constituting the
offense, aid and abet in its commission, or directly or
indirectly counsel or procure another to commit the crime". Id.
at 155 n.3 (quoting La. Rev. Stat. 14:24).

Considering only the version of the robbery described in the
report, Wilson was a principal. See State v. Antoine, 444 So. 2d
334, 337 (La. Ct. App. 1st Cir. 1983) (defendant participated in
armed robbery as principal, even though he did not hold the guns
or personally empty the cash register, where he "knew in advance
of [co-defendants'] plans, took part in the discussion of the
discrepancies are material.

B.

As noted, the Supreme Court held in United States v. Bagley

that, for Brady purposes, it had rejected any distinction between

impeachment evidence and other exculpatory evidence. 473 U.S. at

676. It reasoned that impeachment evidence is "evidence favorable

to an accused", within the meaning of Brady, "so that, if disclosed

and used effectively, it may make the difference between conviction

and acquittal". Id. The Court adopted the following materiality

standard for any prosecutorial failure to disclose evidence

favorable to the accused:

The evidence is material only if there is a
reasonable probability that, had the evidence been
disclosed to the defense, the result of the
proceeding would have been different. A
`reasonable probability' is a probability
sufficient to undermine confidence in the outcome.

Id. at 682.

"The question of materiality present in cases in which the

accused complains of prosecutorial suppression of material evidence

is ... [a] mixed question[] of law and fact calling ultimately for

a legal determination".6 Davis v. Heyd, 479 F.2d 446, 451 (5th

proposed robbery, knew [one of the co-defendants] had the gun,
received the stolen money, and drove the vehicle which enabled
them to flee the scene of the crime"); Lawry, 430 So. 2d at 155
(evidence that defendant "chose the target of the robbery,
recruited two men to perform the robbery, supplied guns to be
used in the robbery and drove the getaway car" sufficient to
prove defendant's guilt as a principal).
6
The parties assert incorrectly that the district
court's materiality "finding" is subject to the clearly erroneous
standard of review. Bagley's formulation of the materiality
standard (whether there is a reasonable probability that the
outcome of the proceeding would have been different had the
evidence been disclosed) is derived from Strickland v.
Cir. 1973); see also Ballinger v. Kerby, 3 F.3d 1371, 1375 (10th

Cir. 1993) ("The question of materiality and the possible effect of

... withheld evidence on the verdict[] is a mixed question of fact

and law") (internal quotation marks, citation, and brackets

omitted); United States v. Rivalta, 925 F.2d 596, 598 (2d Cir.),

cert. denied, ___ U.S. ___, 112 S. Ct. 215 (1991) (same).

1.

"Bagley evidences concern with `any adverse [e]ffect that the

prosecutor's failure to respond might have had on the preparation

or presentation of the defendant's case'". Smith v. Black, 904

F.2d at 966 n.4 (quoting Bagley, 473 U.S. at 683 (opinion of

Blackmun, J.)). Accordingly, although the Bagley materiality

standard applies to a specific request, a general request, or no

request at all, "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'". James v. Whitley,

926 F.2d 1433, 1439 (5th Cir. 1991) (quoting Bagley, 473 U.S. at

682 (opinion of Blackmun, J.)).7

Washington, 466 U.S. 668, 698 (1984). Bagley, 473 U.S. at 682
(citing Strickland, 466 U.S. at 694). In Strickland, 466 U.S. at
698, the Court held that the same inquiry in the context of an
ineffective assistance of counsel claim presented a mixed
question of law and fact.
7
The passage from Bagley, quoted in James, is from
Justice Blackmun's opinion, joined only by Justice O'Connor. See
Bagley, 473 U.S. at 668; see also id. at 685 (opinion of White,
J., joined by Burger, C.J., and Rehnquist, J.) ("Given the
flexibility of the standard and the inherently factbound nature
of the cases to which it will be applied, ... I see no reason to
attempt to elaborate on the relevance to the inquiry of the
specificity of the defense's request for disclosure, either
generally or with respect to this case".). However, in
Pennsylvania v. Ritchie, 480 U.S. 39 (1987), a majority of the
Court cited with approval that portion of Justice Blackmun's
 Prior to trial, Wilson made only a general request for Brady

material ("Motion for Bill of Particulars and Discovery and

Inspection"): "Did the State obtain or does the State have any

exculpatory evidence or evidence favorable to the defendant and if

so, what is the nature and description of such evidence?" The

State responded, "None".

The trial transcript indicates, however, that Wilson's counsel

knew that the report existed. During cross-examination of Officer

Bayard, who became involved in the investigation two months after

the robbery,8 Wilson's counsel asked when the report was dated, and

who wrote and signed it. Bayard responded that the report was

dated September 10, 1982 (the day of the robbery), but could not

opinion, noting that, "[a]lthough the obligation to disclose
exculpatory material does not depend on the presence of a
specific request, we note that the degree of specificity of
Ritchie's request may have a bearing on the trial court's
assessment on remand of the materiality of the nondisclosure".
Id. at 58 n.15 (quoting Bagley, 473 U.S. at 682-83 (opinion of
Blackmun, J.)).

Our court has also cited and applied Justice Blackmun's
opinion regarding the specificity of the request. See James, 926
F.2d at 1439 (citing Bagley, 473 U.S. at 682-83 (opinion of
Blackmun, J.)); Smith v. Black, 904 F.2d at 963 n.2 (quoting
Bagley, 473 U.S. at 682-83 (opinion of Blackmun, J.)) ("Bagley
did regard the request's specificity as pertinent to the
assessment of materiality, in that `an incomplete response to a
specific request not only deprives the defense of certain
evidence, but also has the effect of representing to the defense
that the evidence does not exist.' The Court noted that
specificity did not affect the different standard of review but
figured only as one aspect of the `totality of circumstances'".)
(emphasis in original); United States v. Weintraub, 871 F.2d
1257, 1261 n.6 (5th Cir. 1989) (citing Bagley, 473 U.S. at 683
(opinion of Blackmun, J.)) ("The fact that the defendant made a
specific request is ... one factor a reviewing court may consider
in assessing the materiality of the withheld evidence").
8
Bayard showed photographs to Pierce, from which Pierce
identified Wilson as one of the robbers.
recall the author's name. The prosecutor stated that Stewart and

Monteverde were the officers who initially interviewed the victims

and prepared the report. At Wilson's counsel's request, the trial

court ordered the issuance of subpoenas for those officers.

When Wilson's counsel attempted to cross-examine Bayard about

the report's contents, the court sustained the State's hearsay

objection. In any event, Wilson's counsel cross-examined both

victims about their statements to the police officers on the day of

the robbery. During the presentation of defense witnesses, the

trial court noted that one of the two subpoenaed officers (not

identified by name) had entered the courtroom. The identity was

fixed subsequently at the federal evidentiary hearing, when Richard

Monteverde, the partner of Michael Stewart (the report's author,

who died prior to the hearing), testified that he was not the

officer referred to in the trial transcript. The record therefore

supports the inference that the report's author, Stewart, was

present at trial. He did not testify.

Wilson's trial counsel testified at the federal evidentiary

hearing that he did not receive a copy of the report prior to or

during trial, and did not learn of the report until the day before

the evidentiary hearing. Wilson's federal habeas counsel

questioned trial counsel about the references to the report in the

trial transcript:

Q. When you questioned the officers ... and the
existence of a report was discussed, did you at
that time know exactly what report that was?

A. No .... But it was obvious that there was
some serious differences in the descriptions given
beforehand and [Wilson] [sic] at the time from what
 I had come to learn during the trial of the case.
And that's all the questions are for[,] to attempt
to determine from the police officer who handled
the report[,] the prior descriptions.

It is apparent that, during trial, Wilson's counsel was aware,

at the very least, that a report existed, but was unaware of its

contents. After learning at trial about the existence of the

report, however, Wilson neither requested a copy nor asked the

court to review it, in camera, to determine whether it contained

any favorable evidence. And, although the trial judge, at the

request of Wilson's counsel, issued subpoenas for the investigating

officers, and although Officer Stewart, the report's author, was

present at trial as a result and available to testify, Stewart was

not called as a witness.

In light of these facts, we cannot conclude that the

prosecutor's failure to respond to Wilson's general request for

Brady material adversely affected trial counsel's strategy.

Accordingly, Wilson's Brady request is not entitled to favorable

weight in our assessment of the materiality of the undisclosed

information. See Smith v. Black, 904 F.2d at 966 n.4.

2.

In assessing the materiality of undisclosed impeachment

evidence, "we must consider the nature of the impeachment evidence

improperly withheld and the additional evidence of the defendant's

guilt independent of the disputed testimony". United States v.

Weintraub, 871 F.2d 1257, 1262 (5th Cir. 1989).9 "The materiality

9
See Drew v. Collins, 964 F.2d 411, 419-20 (5th Cir.
1992) (incremental impeachment value from minor inconsistencies
between witness' taped and written statements did not raise a
reasonable probability that, had the statement been disclosed to
of Brady material depends almost entirely on the value of the

evidence relative to the other evidence mustered by the state".

Edmond v. Collins, 8 F.3d 290, 293 (5th Cir. 1993) (internal

quotation marks and citation omitted). For example, 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, Weintraub, 871 F.2d at 1262;

but, on the other hand, "where the withheld 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".10 Id.

Nearly all of the evidence at trial consisted of Pierce's

identification testimony, supported by the testimony of Bowie, who

was able to identify Wilson only by his build.11 There was no other

corroborating evidence of Wilson's guilt. Thus, Pierce's

eyewitness testimony was essential to Wilson's conviction. Our

court has noted that "[i]t is a commonplace that eyewitness

testimony is highly regarded by juries, rather more than its

objective appraisal might warrant". Smith v. Black, 904 F.2d at

967. Accordingly, in determining whether there is a reasonable

defense counsel, the outcome of the proceeding would have been
different), cert. denied, ___ U.S. ___, 113 S. Ct. 3044 (1993).
10
Cf. Williams v. Whitley, 940 F.2d 132 (5th Cir. 1991)
(remanding for evidentiary hearing on materiality of police
report in which victim's wife, who was the only witness to
identify defendant as the murderer, admitted to having visited a
methadone clinic shortly before the murder).
11
Bowie testified at trial that he did not get a chance
to look at Wilson's facial features.
probability that the outcome of the trial would have been

different, our focus is on whether the report contains information

that could have been used, on cross-examination, to significantly

undermine Pierce's credibility.12

As noted, of critical importance to our analysis of the

materiality of any discrepancies is the manner by which the report

was prepared. Monteverde, one of the officers who interviewed

Pierce within hours of the robbery, testified at the federal

evidentiary hearing that the report was prepared by his partner,

Stewart, who died during the year prior to the hearing; that he had

no independent recollection of the events reflected in the report;

but that "[t]he normal procedure is to interview the victim or

witness, ... write down the key points and then very soon

thereafter relocate to an area where you can reflect and write the

report, the narrative".13 Monteverde testified that the report is

supposed to accurately reflect the victim's statements to the

officers. He testified further, however, that it is not a verbatim

12
The district court held that the report was material
because, considering "the marked differences between Pierce's
initial statement to the police and his trial testimony, the
report would have provided Wilson with substantial information
with which to impeach Pierce's testimony". It concluded that,
because "Pierce was the sole eyewitness to identify Wilson pre-
trial, impeachment of his testimony could have affected the
outcome of the trial".
13
In response to questioning by the magistrate judge,
Monteverde reiterated that the "normal procedure" in preparing
reports was to "relocate to a quiet place whether it be a donut
shop or back to the station where we could take our time and
write it as accurately as we can from the information we would
have received".
transcription of the victim's statements.14

The first discrepancy between the report and Pierce's

testimony involves the assailants' approach. The report states

(Pierce is reported as having said) that two men came from behind

Pierce and a third from behind the pumping station. Pierce

testified that he saw one man cut across a field on his left,

another came from behind the pumping station, and another came from

behind him with a knife.15 But, the report contains, in addition

to the narrative in which Pierce's description of the assailants'

14
See Weintraub, 871 F.2d at 1260, which involved a Brady
claim based on statements made during a witness' trial testimony
that were not included in a "DEA-6" report summarizing the
witness' statements to investigators. Our court noted that the
DEA-6 reports were not verbatim accounts of the witness' pretrial
statements, but instead were "`short, concise, summaries of the
witnesses' version of the facts as recounted to the agents'".
Id. at 1260 (quoting United States v. Merida, 765 F.2d 1205, 1215
(5th Cir. 1985)). "Thus, the fact that a specific piece of trial
testimony is not included in a DEA-6 is not necessarily a
reflection on the credibility of the witness, but instead may be
the result of an agent's transcription techniques". Id.
Considering "the realities of this summation process", our court
concluded that the prosecution was not under a duty to disclose
the DEA-6 report. Id.

Cf. United States v. Scaglione, 446 F.2d 182, 184 (5th Cir.)
(internal quotation marks and citations omitted), cert. denied,
404 U.S. 941 (1971):

[Under the Jencks Act, 18 U.S.C. § 3500,] [t]he
inquiry is whether the witness has made as his own
the product of the investigator's selections,
interpretations and interpolations[,] ... so that
the defense should be permitted to use it to
impeach him. If the witness has not done so it is
grossly unfair to use the language,
interpretations and interpolations of someone else
to impeach him.
15
The district court found that this was a material
difference because, in the trial version, Pierce had a greater
opportunity to view Wilson than as described in the report;
therefore, his testimony enhanced his credibility.
approach is reported, a description of the facial features of two

of them. If Pierce had not seen their faces, he could not have

described their facial features in the manner reflected in the

report.16 In addition, it contains a section entitled "Suspects

Actions Before Offense", in which boxes are checked, for both

"wanted subject" no. 1 and no. 2, for "loiters in area", "walks up

to victim", "approaches from behind", and "follows victim on foot".

The other discrepancies found to be material by the district

court concern the identity of the perpetrator who struck Pierce in

the face, pushed him down, and took his money. The report, quoted

supra, states that "the first unk NM, with knife struck L. Pierce

in face and struggle [e]nsued"; that Pierce was forced to the

ground by "NM #1", who jabbed Pierce in the lower back and buttock,

telling him to stay on the ground and give up the money; and that

"Wanted Subject #1" then "went into" Pierce's back pocket, removing

16
The report contains the following description of the
first subject: name, "UNK"; race, "N"; sex, "M"; date of birth,
"APX 20"; height, "5'7""; and weight, "120". For "Wanted
Subject" no. 1, boxes are checked for black hair in a short
"Afro" style, a goatee and mustache, black complexion, round
face, brown eyes, a small nose, good teeth, and a dirty
appearance. The section entitled "Additional
Description/Clothing - Tattoos - Scars and Teeth", contains the
following: "Eyes squinted, cut off blue jeans with T-Shirt,
sneakers w/o socks, in possession 4" folding buck knife".

The second subject is described as: name, "UNK"; race, "N";
sex, "M"; date of birth, "APX 20"; height, "5'7""; and weight,
"150". For "Wanted Subject" no. 2, boxes are checked for long,
black hair, heavy stocky build, brown complexion, long facial
shape, brown eyes, large nose, good teeth, and dirty appearance.
A box is also checked under the section for "Facial Hair", but
this portion of the report is illegible, and it is unclear
whether "neat" or "unshaven" was checked. In the space for
additional description, the second subject is described as
wearing "light blue shirt, cut off blue jeans, sneakers w/o
socks".
his wallet, and taking a $5.00 bill. At trial, Pierce testified

that the perpetrator later identified as Wilson came up to him and

tried to go through his pockets; that he hit Wilson and broke free,

but then Wilson hit him, knocking his glasses off; that Wilson

grabbed him from behind and wrestled him to the ground; that the

"guy" with the knife placed the knife in his side; and then "they"

went through his pockets and took his money.

The district court interpreted the report as using the terms

"first unk NM", "NM #1", and "Wanted Subject #1" to refer to the

same individual -- an assailant other than Wilson. It therefore

concluded that, according to the report, an assailant other than

Wilson struck Pierce, wrestled him to the ground, and took his

money -- a version that differed materially from Pierce's trial

testimony that Wilson struck him and knocked his glasses off,

grabbed him from behind and wrestled him to the ground, and that

"they" took his money.

The district court's interpretation of the cryptic labels used

in the report to describe the perpetrators is certainly plausible.

(One wonders why the author of the report used, in three

consecutive sentences, three different terms ("first unk NM", "NM

#1", and "Wanted Subject #1") to describe, apparently, the same

individual.) In any event, considering the circumstances of the

report's preparation, the fact that Pierce neither signed nor

otherwise adopted the report, and the lack of any testimony about

the report by either Pierce or its author, it is extremely

difficult to evaluate the impact, if any, that disclosure of the

report, and cross-examination of Pierce about the discrepancies
between it and his testimony on direct examination, would have had

on the outcome of the trial.

As our court stated in Lindsey v. King, 769 F.2d 1034, 1043

(5th Cir. 1985), "[w]hether it is reasonably probable that a

different result might have obtained had the evidence been

disclosed [can be] a question of agonizing closeness". In making

the close call presented here, we must not focus solely on the

discrepancies between Pierce's testimony and the report. We must

consider also items which are consistent: (1) the date, time, and

location of the robbery, the number of assailants involved, and the

amount of money taken from each of the victims are the same in both

the report and Pierce's testimony; (2) Wilson fits the physical

description of "wanted subject #2" in the report, and Pierce's

description of Wilson at trial is consistent with the report's

description of Wilson;17 (3) Pierce's testimony that the third

suspect stood watch during the robbery is consistent with the

report; and (4) Pierce's testimony that Wilson held him while the

other assailant stabbed him is consistent with the report, which

states that Pierce noticed a small incision made by "wanted subject

#1". In addition, Pierce's testimony regarding the robbery is

generally consistent with the version of the robbery testified to

17
On cross-examination at trial, when asked to state how
he had described Wilson to the police on the day of the robbery,
Pierce responded: "somewhat big"; "[a]bout 5'7""; "a lot of
hair, somewhat large"; a "bush" hair style, "[h]igher on the top
than on the side"; wearing a short-sleeved, light blue shirt and
cut-off blue jeans, and tennis shoes with no socks; a "rather
large" nose with "somewhat acne on his face", eyes that were
"somewhat closed", "a lot of flesh" on his head, and a "low"
forehead; age "18 or 19", a complexion "in between" light and
dark, and a "stout, muscular" (not "skinny") build.
by Bowie, the other victim.18

18
As noted, Bowie could identify Wilson only by his
build. At trial, Bowie described the robbery as follows:

[W]e left school around 4:00 .... It was myself
and Leonard Pierce. We took the route going past
the pumping station ... and we had to go down A.
P. Touro towards Florida Avenue .... We were
going around the back of the pumping station ...
when one dude came from around the back of the
pumping station. At the same time he came out,
another guy came from behind us with a knife and
he put it in Mr. Pierce's back and the third man
came across from the left and he blocked us from
going ... to the left and the man from behind the
pumping station was blocking us from the right.
So, they put the knife in Leonard's back and ...
he was asking Leonard for his money and he hit him
and they wrestled to the ground and while they
were doing that, the man with the knife came to me
and asked me for my money and I gave him $6 and he
went back to the guy that was wrestling with
Leonard. The one with the knife gave the knife to
the man that was holding Leonard and they
proceeded to go through his pockets and take the
money out of his pockets and after that, they just
ran, they left because a car was coming.

Bowie testified that he was walking on Pierce's right side, and
that "the man that wrestled Leonard [Pierce] down, he cut across
the left of both of us and ... that is where he came up at.
Leonard was the closest one. That is why he grabbed Leonard and
wrestled him to the ground". On cross-examination, defense
counsel asked Bowie what he saw Wilson doing during the robbery,
and Bowie responded:

[H]e came up to Leonard ... and he hit Leonard.
He punched him in the jaw .... [H]e knocked off
Leonard's glasses and broke his glasses. After he
punched him, he ... wrestled him to the ground
.... [W]hile he was wrestling Leonard to the
ground, the man with the knife came to me and took
my money. He went back over to help the other
guys rob Leonard. The man with the knife gave the
knife to the guy [Wilson] that was holding
Leonard.

Bowie testified that Wilson "held the knife in Leonard's back and
the one that first had the knife proceeded to go through his
pockets and take his money"; and that Wilson was wearing a light
blue shirt and cut-off blue jeans, and white tennis shoes without
socks.
 Finally, Wilson did not present a strong case for mistaken

identity. Although 12 alibi witnesses testified that, at the time

of the robbery, Wilson was playing football some distance away, we

agree with the state appellate court's characterization of their

testimony as "less than definite". State v. Wilson, 463 So. 2d at

657. As that court noted, those witnesses "had no reason to fix

events of the day of the robbery in their minds until weeks

thereafter when [Wilson] was charged or, in most cases, until five

or six months later when [Wilson's] mother sought them out as

witnesses". Id. at 656.19

Because the report's description of the robbery is subject to

an interpretation that is less incriminating than that presented by

Pierce's testimony, the State should have disclosed it. But,

although the conduct of the trial might have been affected by the

failure to do so, we cannot conclude that there is a reasonable

probability that, had it been disclosed, the outcome of the trial

would have been different. Considering the inculpatory, not

exculpatory, nature of the version in the report, the report's

consistency with much of Pierce's testimony, Pierce's opportunity

to see Wilson during the robbery and his very definite

identification of Wilson at trial, the consistency of Pierce's and

19
On direct appeal, Wilson contended that the evidence
was insufficient because a rational trier of fact could not
disbelieve the testimony of his 12 alibi witnesses. State v.
Wilson, 463 So. 2d at 656. He also contended that the state
appellate court should consider the polygraph evidence
(indicating that he and one of his witnesses told the truth at
trial) which he introduced at the hearing on his motion for a new
trial. Id. at 657. In an extremely thorough and well-reasoned
opinion, the state appellate court rejected those contentions.
Id.
Bowie's testimony, and the less than definite testimony of Wilson's

alibi witnesses, we cannot say that our confidence in the outcome

of the trial has been undermined by the State's failure to disclose

the report.20

III.

At bottom, the Brady rule is one of the methods for seeking to

ensure due process -- a fair trial. Wilson received that.

Accordingly, we REVERSE the judgment of the district court and

20
For example, the discrepancies at issue are far less
compelling than those in an eyewitness's undisclosed statement
and trial testimony in Lindsey v. King, 769 F.2d 1034, 1042 (5th
Cir. 1985). Lindsey's capital murder conviction and death
sentence rested on the testimony of two identifying eyewitnesses.
The prosecution did not disclose an earlier statement by one of
them that he did not see the perpetrator's face. Although the
other eyewitness' identification testimony was positive, our
court concluded that, in light of the poor circumstances for
identification and the presence at the scene of the defendant's
companion, who "bore a striking resemblance" to the defendant,
the undisclosed statement was material. Id. at 1042-43. The
materiality evaluation also seems to have been influenced by the
fact that Lindsey was a capital case and there was "a real
possibility that the wrong man is to be executed". Id. at 1043.

As another example, the discrepancies at issue are also less
significant than those in Monroe v. Blackburn, 607 F.2d 148 (5th
Cir. 1979), cert. denied, 446 U.S. 957 (1980), in which the
crucial evidence of guilt was the defendant's fingerprint taken
from the door handle of the robbery victim's truck. Id. at 150,
152. At trial, the victim, who admitted on cross-examination
that he did not get a good look at the robber and was not able to
positively identify the defendant as such, testified that he
heard a noise on the door of his truck immediately before the
robbery. Id. But, in his statement to the police two hours
after the robbery, the victim did not mention hearing the noise.
Id. The defendant contended that the victim's testimony about
the noise was relied on by the prosecutor to establish that his
fingerprint was placed on the door at the time of the robbery
rather than at some other time. Our court agreed, holding that
the victim's statement to the police "is impeachment evidence of
the sort that goes directly to a substantive issue and could be
used in urging that the in-court testimony has been `improved' by
the erroneous addition of what the prosecution needed to support
its theory". Id. at 152.
REMAND for consideration of Wilson's Sixth Amendment claim.

REVERSED AND REMANDED

WALTER, District Judge dissenting:
 I respectfully dissent. I agree with the majority that "the

determinative question is whether the report was 'material'; [that]

is, whether 'there is a reasonable probability that, had the report

been disclosed to Wilson, the result of the jury trial would have

been different." United States v. Bagley, 473 U.S. 667, 682

(1985). However, I disagree with the majority that a police

report, sworn or unsworn, adopted or not, is not "material" where

it directly calls into question the accuracy and the credibility of

the testimony given by the State's sole witness able to positively

identify Wilson as one of the robbers.21

The majority recognizes that other than the testimony of the

other victim, who identified Wilson only by his build, "there was

no other corroborating evidence of Wilson's guilt...[t]hus,

Pierces' eyewitness testimony was essential to Wilson's

conviction...[and] our focus is on whether the report contains

information that could have been used on cross examination, to

significantly undermine Pierces' credibility." (majority opinion p.

14) The police report contained the only evidence capable of

providing the defense with an opportunity to undermine Pierce's

credibility. His testimony was enhanced by a sworn version of the

robbery that allowed him a greater opportunity to view the robbers

than the account described in the report. Pierce's credibility was

21
The majority bases its decision on the following: the police report was unsigned
and unacknowledged by Pierce, the police report contained many similarities to the trial
testimony and the other victim gave a similar account and "identified" Wilson by his build.
The majority states that "the report does implicate Wilson...it implicates him as one of the
three perpetrators of the armed robbery, each of them aided and abetted the others."
Footnote 5. I disagree. The police report merely gives a general description of three armed
robbers and the victim's account of the events as they unfolded. It does not identify Wilson
in particular as one of the perpetrators.
further buttressed by testimony that he was "absolutely sure" and

had "no doubt" that Wilson was the person who robbed him. Pierce

testified that Wilson was "face to face...less than a foot away

from my face." The police report is clearly material to the

defense because it provides evidence that contradicts Pierce's

trial testimony regarding his opportunity to view his attackers.

Without the ability to use, or even know of, the inconsistent

police report of the investigating officer, the testimony provided

by the State's sole identifying witness was all but impregnable.

Wilson was deprived of his right to a fair trial. See Giglio v

United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972)

(defendant's fundamental rights of due process were violated by

non-disclosure of evidence that impeached the reliability and

credibility of a key witness where potentially impeaching evidence

was never presented to the jury for consideration) See also United

States v Oxman, 740 F.2d 1298, 1313 (3rd Cir. 1984) (when

impeaching evidence that significantly impairs the incriminatory

quality of a witness' testimony is not disclosed to the defense, a

new trial must be granted because the impeachment of an

incriminating witness with significant evidence attacking the

truthfulness of his testimony "might affect" the jury's assessment

of reasonable doubt and thereby affect the outcome of the trial).

Considering that the police report was Brady evidence, that it

was wrongfully withheld by the prosecution, and that it contained

a substantially different account of the robbery than that

presented in open court, had the evidence been disclosed to the

defense and been used effectively, the result of the proceeding
would probably have been different. I respectfully dissent.