concurring in part and dissenting in part:
I concur in the majority’s resolution of the right to counsel, estoppel, and admissibility of evidence issues. I disagree that Lehman has shown that the government’s refusal to disclose any reports on the location of the footprint photographs amounted to a Brady violation. I therefore respectfully dissent from the majority’s decision to remand this issue.
Initially, the defendant based his need for the reports on the inconsistencies in deputy sheriff Mandeville’s testimony as to where the muddy footprints trailed off. At Lehman's first trial, Mandeville testified that the footprints led all the way to the runway. At the second trial, he testified that the footprints led to the taxiway. He explained, however, that he had only recently learned the difference in terminology and was not changing the substance of his testimony. Mandeville’s testimony was consistent throughout the trials and this militates against the defendant’s asserted need for the documents to impeach Mande-ville’s allegedly inconsistent testimony.
More fundamentally, a constitutional error for failure to disclose Brady material is committed only when there is a reasonable possibility that the non-disclosed evidence materially affected the outcome of the trial. United States v. Goldberg, 582 F.2d 483, 488 (9th Cir.1978), cert. denied, 440 U.S. 973, 99 S.Ct. 1538, 59 L.Ed.2d 790 (1979). Non-disclosure of evidence must, therefore, be evaluated in the context of the entire record. See, e.g., United States v. Van Brandy, 726 F.2d 548, 552 (9th Cir.), cert. denied, — U.S.-, 105 S.Ct. 139, 83 L.Ed.2d 79 (1984); see also United States v. Griffin, 659 F.2d 932, 939 (9th Cir.1981), cert. denied, 456 U.S. 949, 102 S.Ct. 2019, 72 L.Ed.2d 473 (1982). Viewing the record as a whole, the photograph reports, if they exist, do not satisfy this standard. There is therefore no Brady violation.
Mandeville only testified that the footprints led past a set of hangars and toward the area in which the private planes were tethered. The jury could, but need not, infer from this that the two bank robbers actually proceeded on to Lehman’s plane. Co-defendant Gordon testified that he and Crenshaw turned off at the hangars toward a car in the parking lot. Mandeville was cross-examined on this point as well as his testimony concerning where the footprints led. The jury had ample opportunity to question both the import and veracity of Mandeville’s testimony. Any reports on the location of the footprint photographs would have been merely cumulative or collateral and their non-disclosure, if error, was harmless. See United States v. Shelton, 588 F.2d 1242, 1248 (9th Cir.1978) (evidence requested to impeach key government witness who has been extensively cross-examined is cumulative and thus not material), cert. denied, 442 U.S. 909, 99 S.Ct. 2822, 61 L.Ed.2d 275 (1979).
Further, the photograph reports, if they exist, are not material to the question of Lehman’s guilt. Mandeville testified that he arrived at the airport shortly after the *731two bank robbers were spotted, followed some footprints that led toward the airport — the defendant does not contest this— and saw a plane fitting the description of Lehman’s take off. The area around the airport was subjected to an extensive search that failed to produce any sign of the robbers. Subsequently, Lehman was found in Sacramento, California in the company of one of the robbers. The other robber was apprehended later that evening at the Sacramento Airport. Lehman’s plane was also found at the Sacramento Airport. Because of this undisputed evidence, I must conclude that there is no reasonable possibility that reports on the location of the footprint photographs would have affected the outcome.
I would affirm the district court’s ruling on this point.