Concurring in Part and Dissenting in Part.
I concur in the majority opinion as to Bell’s ineffective assistance of counsel claim, but disagree with the majority’s disposition of Bell’s Brady claim. The majority holds that the prosecutor had a “tacit understanding” with the witness and was required to disclose this agreement to the defense under Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), even though no probative evidence of such an agreement exists.
Bell relies on three pieces of evidence in support of his Brady claim. All are related to the testimony of William Davenport, a convicted felon who was held with Bell in the Nashville jail. Davenport approached Ross Miller, Bell’s prosecutor, seeking either a transfer of facilities or participation in a work-release program. This request, which was recorded in Miller’s notes, was not divulged to the defense as required by Brady. Second, prior to Bell’s trial, several of Davenport’s pending counts were nolle prosequied by another prosecutor as part of a plea bargain that resulted in a three-year sentence for Davenport on other counts in his indictment. The defense was not informed of the outcome of Davenport’s case. Third, Miller sent a letter to the parole board on Davenport’s behalf after the trial ended, recommending parole “at the earliest possible date.” Davenport was, in fact, granted early parole. The only undisclosed material at the time of trial was thus Miller’s notes and Davenport’s sentencing documents.
The majority holds that the prosecution was required to disclose the first two pieces of cited evidence and that all three pieces of evidence were sufficient to prove the existence of a wrongfully-suppressed, implied agreement with Davenport to grant him benefits in exchange for his testimony. Further, the majority holds that the parole letter — or at least the prosecution’s agreement to write such a letter — was wrongfully withheld because it was a tangible result of this purported tacit agreement. The evidence in this case, however, does not support a determination that the prosecution entered into a tacit agreement with Bell. In addition, while Miller should have disclosed the notes regarding Davenport’s request for a transfer and Davenport’s sentencing documents,1 this evidence is not material, so the prosecution’s suppression of it did not violate Brady.
I.
I first consider the majority’s reasoning regarding the purported tacit agreement between the prosecution and Davenport. The majority is certainly correct that the *765prosecution must divulge an express agreement with a witness in relation to that witness’s testimony, regardless of whether the agreement is written or oral. Giglio v. United States, 405 U.S. 150, 154-55, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). In its opinion, however, the majority extends Giglio’s holding to encompass a situation where a witness merely hoped for a future benefit and received one. In so doing, it mischaracterizes the hope and the benefit as an agreement and mischaracterizes our sister circuits’ precedent.
Beginning with the majority’s finding of an agreement, a primary component of its faulty reasoning is its speculation that Davenport’s plea bargain and sentencing prior to Bell’s trial had a connection to Davenport’s testimony. Yet no evidence supports such a connection. No evidence permits an inference that either the prosecutor or judge in Davenport’s case knew that Davenport had approached Miller or that Miller anticipated that Davenport would testify for the state at Bell’s trial. The reality of this record is that Davenport asked for the benefit of a transfer or participation in work release and probably hoped that some other favorable treatment might come his way as a result of his testimony. Davenport’s more general hopes were realized when Miller recommended an early parole after Bell’s trial, although his specific requests were not granted. There is nothing more. Miller denied any agreements with Davenport or any promises to him.
The majority also goes astray in relying on three cases to support its inference of a tacit agreement between a witness and the prosecutor based on lenient treatment of the witness. See Wisehart v. Davis, 408 F.3d 321 (7th Cir.2005); Reutter v. Solem, 888 F.2d 578 (8th Cir.1989); United States v. Shaffer, 789 F.2d 682 (9th Cir.1986). While the majority is correct to find some support in these cases for the proposition that implied agreements must be disclosed, none of the cases supports the majority’s ultimate conclusion.
The Seventh Circuit noted in Wisehart that an implied agreement must be disclosed, 408 F.3d at 324, but that court expressly declined to find such an agreement based solely on a testifying witness’s lenient treatment in a plea bargain. Id. at 325. Instead, the court denied Wisehart’s Brady claim for several reasons. First, the court noted the difficulty in determining when a “tacit agreement” existed; the commonplace nature of plea bargaining— and the leniency inherent in and necessary to the bargaining process — would require intense scrutiny of all witnesses and would imply agreement in nearly all similar cases. Id. Second, the court noted the minimal impeachment value of such leniency once charging practices were explained to the jury. Id. The fact that Johnson expected to benefit by his testimony was immaterial: “A criminal trial must not be allowed to turn into an inquiry into disparate treatment of criminals, with the witness being asked whether he’d received any benefit that he would not have received had the state not wanted his testimony and whether therefore he feared retaliation if he stopped playing ball.” Id. at 325-26. The holding in Wisehart was squarely in line with Seventh Circuit precedent. In Todd v. Schomig, a prior Seventh Circuit panel rejected a similar claim where a witness had an “expectation of benefit” from his testimony, concluding that “[wjithout an agreement, no evidence was suppressed, and the state’s conduct, not disclosing something it did not have, cannot be considered a Brady violation.” 283 F.3d 842, 849 (7th Cir.2002).
The majority opinion also considers and rejects the Second Circuit’s ruling in Sha-bazz v. Artuz, 336 F.3d 154 (2d Cir.2003), which reached the same result. In that *766case, the court denied a claim for disclosure of an implied agreement where, as is the case here, the prosecutor testified that no agreement existed even though the witnesses’ own trials were postponed and the witnesses received lenient treatment in sentencing after testifying. The court rejected this evidence of an implied agreement even though it found “inescapable” the conclusion that the lenient treatment was related to the testimony. Id. at 165. The court reasoned that “[t]he government is free to reward witnesses for their cooperation with favorable treatment in pending criminal cases without disclosing to the defendant its intention to do so, provided that it does not promise anything to the witnesses prior to their testimony.” Id. (emphasis in original).
Unlike Wisehart and Shabazz, the Shaffer court did find an implied agreement between the prosecutor and witness. It is similarly unhelpful as support for the majority’s position, however, because the facts are quire different from this case. The court in Shaffer determined that a tacit agreement existed between the prosecution and the witness in light of extensive evidence showing that the witness, a co-conspirator in a heroin transaction, received financial benefits from the government in connection with the transaction, escaped asset forfeiture proceedings related to the transactions, and was allowed to escape liability for tax violations despite a representation by the government in court that it would require the witness to pay the taxes. 789 F.2d at 689. The benefits to the witness were thus unusual, and the prosecutor did not specifically deny an agreement.
Finally, in Reutter, the prosecutor was one of three members of the parole board that was scheduled to hear the witness’s commutation petition. The witness’s hearing was delayed several times without reason and eventually occurred immediately after trial. The parole board granted the commutation petition. The court argued that had the defense been apprised of the rescheduling of the commutation hearing, the defense would have been able to mount a more effective challenge to the witness’s credibility. The court therefore found the suppression of this evidence to be material, especially in light of the prosecutor’s explicit representation to the jury that the witness could not benefit from his testimony. 888 F.2d at 581-82. Thus, the Reut-ter court did find a Brady violation. It expressly declined to rely on — or even discuss in any depth' — -a finding that the prosecutor and witness had an implied agreement, 888 F.2d at 582 (“Our conclusion does not depend on a finding of either an express or an implied agreement ... ”), and upheld the district court’s determination that no such agreement existed. Id. The Reutter court’s holding, -rather, relied solely on the independent materiality of the suppressed information. That is, the non-disclosed facts were so suspicious as to render an implied agreement finding dupli-cative and therefore unnecessary. As a result, Reutter has no bearing on the implied agreement question raised here.
The holdings in Wisehart and Shabazz are well-reasoned. When applied to this case, they highlight why the evidence in this case is insufficient to support the finding of an implied agreement between Miller and Davenport. First, as in Shabazz, Miller expressly testified that he had reached no such agreement. Miller specifically stated at the evidentiary hearing in this case that, “I didn’t promise Davenport anything, and I didn’t make any agreements with him, but he testified at trial against someone I thought was dangerous, and I felt that he would now be labeled as a snitch, and it might be best that I did whatever I could do to get him out of prison, whenever the parole board thought would be eligible.”
*767Second, the treatment of Davenport was well within the range of normal prosecuto-rial behavior. The nolle prosequied counts were part of a plea agreement that was completed prior to Davenport’s testimony. Given the joint incentives to defer such charging decisions until after the testimony when the testimony is a condition of leniency, see Shabazz, 336 F.3d at 163, the timing of the plea here could actually suggests that the parties had no agreement regarding those charges.
Third, though the prosecutor’s letter to the parole board is evidence of a benefit given by Miller to Davenport, such benefits are common and are not necessarily the result of an agreement between the prosecution and the witness prior to testimony. There are other reasons for such a letter; here, Miller testified that he recommended leniency in part due to concern that Davenport would be targeted by other inmates as a “snitch” due to his testimony in Bell’s case. The ambiguity of purpose behind the parole letter minimizes its usefulness in determining whether an implied agreement existed prior to trial. As the Shabazz court noted, the government is permitted to reward witnesses for their testimony.
The result of the majority’s dual error of mischaracterizing the evidence and the precedent is an expansion of the definition of Brady violation to include nondisclo-sures of witness treatment never previously considered by any court to be within Brady’s ambit. When the majority asserts that denying Bell relief here would “leave[ ] little room for a petitioner to establish a tacit agreement,” -it simply overlooks the fact there are many fact patterns, as in Shaffer, that may provide a proper basis for finding a tacit agreement. Now, the majority’s result leaves little room for finding no agreement, even when the evidence fails to support its existence. Like the Shabazz court, I would hold that “favorable treatment to a government witness, standing alone, does not establish the existence of an underlying promise of leniency in exchange for testimony.” 336 F.3d at 165.
II.
Although Miller did not violate Brady in failing to disclose a tacit agreement, he did not disclose the notes from his meeting with Davenport and Davenport’s sentencing documents,2 both of which could have been used for impeachment. Thus, the failure to disclose them was contrary to the requirements of Brady and its progeny. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). The inquiry then is whether the undisclosed evidence is sufficiently material to constitute constitutional error. See Strick-ler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). The Supreme Court has held that evidence is material when disclosure of the suppressed evidence would create a reasonable probability of a different result. Bagley, 473 U.S. at 678, 105 S.Ct. 3375. I conclude that the suppressed evidence here is insufficient to create a reasonable probability of a different result because its impeachment value is minimal and because defense counsel Ross Alderman effectively impeached. Davenport’s credibility at trial.
At Bell’s' trial, Davenport testified that Bell admitted committing the murders. Alderman attacked Davenport’s testimony on cross-examination, arguing that Davenport was an incredible witness due to his prior criminal history, his prior membership in the Ku Klux Klan, and the fact that he might receive early parole in exchange *768for his testimony. In his closing argument, Alderman again noted Davenport’s criminal and parole status:
[Y]ou have got to decide whether you want to believe somebody who was on parole, violated that parole, was in jail, all this involving a crime involving fraud and false dealings, theft .... I [Davenport] want you to believe [my testimony] ... because I have got a parole hearing coming up in a matter of months and if I can go to the Parole Board and I can say, T have helped convict Stephen Michael Bell,’ that they might cut me some slack because they violated my last parole when I committed another crime .... That is why I called the District Attorney’s office; that is why I spoke to the police and the District Attorney and that is why I came to testify, but you believe me.
The documentary evidence of Davenport’s guilty plea and request for facility transfer in connection with his testimony might have bolstered Bell’s credibility argument, but the benefit thus accrued would have been minimal. See Wisehart, 408 F.3d at 325. Further, the suppressed evidence would not have allowed Bell to develop any new or different lines of argument or testimony. Given Alderman’s cross-examination of the witness based on the parole issue and his argument at closing, disclosure of the withheld Brady material could not “reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Kyles v. Whitley, 514 U.S. 419, 435, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).
For the foregoing reasons, I would affirm the decision of the district court and deny Bell’s petition for a writ of habeas corpus.
. Both items were required to be disclosed as impeachment material. United States v. Bag-ley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) ("Impeachment evidence, ... as well as exculpatory evidence, falls within the Brady rule.”). The notes of the transfer request were evidence that Davenport hoped for favorable treatment for his testimony. The sentencing documents reflected Davenport's prior criminal convictions.
. The parole letter was not created until after trial, and therefore could not be disclosed absent an implied agreement.