dissenting.
1 respectfully dissent, for I believe that there are insufficient grounds for the granting of the motion to vacate in this case.
First, as the majority opinion indicates, this court affirmed the conviction on direct appeal and the Supreme Court declined to grant certiorari. Then, Sehledwitz filed his motion for a new trial under Criminal Rule 33 because the prosecution allegedly failed to provide him with exculpatory evidence under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In that case, the evidence which was supposed to have been material and withheld was an FBI report of an interview with Jake Butcher and the failure to reveal the fact that retired IRS agent Jay Horne had participated in part, of the investigation of the case. The district court’s denial of Schledwitz’s motion for a new trial was upheld by this court in United States v. Schledwitz, Nos. 95-5309, 95-5409, 1995 WL 712755 (6th Cir.1995) (Schledwitz II). We held that the FBI report of the interview was not material evidence under United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), because Schledwitz “had to be aware of Butcher’s opinion contained in the FBI 302 report.” Schledwitz II, 1995 WL 712755, at *5.
That previous decision of our court- should be the “law of the case.” See United States v. Moored, 38 F.3d 1419, 1421 (6th Cir. 1994). Under that doctrine, “issues, once decided, should be reopened only in limited circumstances.” Id. Such circumstances were specifically noted as “ ‘substantially different evidence raised on subsequent trial; a subsequent contrary view of the law by the controlling authority; or a clearly erroneous decision which would work a manifest injustice,’” Id. (citing White v. Murtha, 377 F.2d 428, 431-432 (5th Cir.1967)). None of those circumstances has arisen in this case. Therefore, I would apply the law of the case doctrine and follow our previous decision in Schledwitz II.
Admittedly, in this motion to vacate, Sehledwitz has presented two additional *1018pieces of evidence, claiming a violation of the Brady rule. The first piece of new evidence is the statement of former Memphis travel agent Herbie O’Mell. Even the majority opinion questions the materiality of that statement. ' O’Mell could only testify that he did not recall ever arranging a trip to Las Vegas for Schledwitz. Schledwitz contends that the prosecution should have revealed such an interview by Horne with O’Mell to show not only the substance of the interview but also that Horne was investigating a part of the case. However, the prosecution never tried to prove that Schledwitz had taken a trip to Las Vegas; it merely showed that some of the money that was received by Schledwitz went to pay the Las Vegas gambling debts for C.H. Butcher. Moreover, even if the prosecution had intended to prove that Schledwitz had gone to Las Vegas, O’Mell was not the only travel agent who could have arranged such a trip to Las Vegas for Schledwitz. Although the district court found that O’Mell’s evidence was exculpatory for Schledwitz, I would find that finding to be clearly erroneous, for there is no value to that testimony.
The second item of new evidence submitted in the motion to vacate is the statement from Ray Beliles, Schledwitz’s law partner, reflecting an interview with two IRS agents in 1985. In that interview, Beliles told the agents he knew of no illegalities or improprieties in the trust agreement involving Schledwitz and that Schledwitz was not a “nominee” for the Butchers in purchasing the stock. This statement by Beliles added nothing to Schledwitz’s case. In addition, as a law partner, Beliles had a close relationship to Schledwitz. Therefore, Schledwitz could have ascertained any knowledge of the investigation that Beliles possessed. The prosecution has no obligation to turn over information that the defendant was, or should have been, aware of. See United States v. Todd, 920 F.2d 399, 405 (6th Cir.1990).
Schledwitz reiterates his argument in his original motion for a new trial, that is, that the prosecution should have revealed the fact that Horne had participated in part of the investigation. We held previously: “[Tjhis type of impeachment does not satisfy the Bagley materiality standard and, therefore, does not require the granting of defendant’s motion for a new trial.” Schledwitz II, 1995 WL 712755, at *5. Therefore, if it did not satisfy the Bagley materiality in our previous decision, it does not satisfy the Bagley materiality in the present decision, which involves the same case and the same type of evidence.
Even if this court should consider the cumulative effect of all of this evidence upon Schledwitz’s trial, there still is no Brady violation here. If one cumulates several pieces of evidence which are not Brady material, the whole body of that evidence does not then become Brady material.
I believe that the district court erred when it found that the government violated Brady by withholding the FBI reports of the interviews of Butcher, O’Mell and Beliles. However, the district court was confident that the evidence against Schledwitz was overwhelming. Thus, the court was convinced that even had the prosecution presented these FBI reports to the defense before or during trial, the outcome of the trial would have been the same.
Therefore, I would follow our previous decision in Schledwitz II and the district court’s decision in this case and affirm the district court’s denial of the motion to vacate.