Conley v. United States

United States Court of Appeals
For the First Circuit

No. 04-2424

KENNETH M. CONLEY,

Petitioner, Appellee,

v.

UNITED STATES OF AMERICA,

Respondent, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Boudin, Chief Judge,
Torruella, Circuit Judge,
and Baldock,* Senior Circuit Judge

Saul M. Pilchen, with whom Robert S. Bennett, Jonice Gray
Tucker, Robert W. Scheef, and Thomas J. Dougherty, were on brief
for appellee.

Bradly J. Schlozman, Deputy Assistant Attorney General, with
whom R. Alexander Acosta, Assistant Attorney General, Mark L.
Gross, and Teresa Kwong, were on brief for appellant.

July 20, 2005

*
Of the Tenth Circuit Court of Appeals, sitting by
designation.
 BALDOCK, Senior Circuit Judge. The question in this

appeal is whether the Government’s suppression of impeachment

evidence violated Petitioner Kenneth Conley’s right to due process

under the Fifth Amendment.1 See Brady v. Maryland, 373 U.S. 83, 87

(1963). The district court answered yes and granted Petitioner’s

motion to set aside his conviction. See 28 U.S.C. § 2255. We have

jurisdiction, id. § 2253(a), and affirm.

I.

The historical facts of this case are well known and need

not be repeated in full. See United States v. Conley, 186 F.3d 7,

11-15 (1st Cir. 1999) (Conley I); United States v. Conley, 103 F.

Supp. 2d 45, 49-51 (D. Mass. 2000) (Conley II); United States v.

Conley, 249 F.3d 38, 40-43 (1st Cir. 2001) (Conley III); Conley v.

United States, 164 F. Supp. 2d 216, 217-21 (D. Mass. 2001) (Conley

IV); Conley v. United States, 323 F.3d 7, 9-11 (1st Cir. 2003) (en

banc) (Conley V); Conley v. United States, 332 F. Supp. 2d 302,

306-309 (D. Mass. 2004) (Conley VI); see also Dwan v. City of

Boston, 329 F.3d 275, 276-77 (1st Cir. 2003). In 1995, police

officers chased four homicide suspects through Boston. The vehicle

chase ended when the suspects turned into a cul-de-sac (Woodruff

1
The Government’s good faith (or lack thereof) in failing to
disclose favorable evidence is irrelevant. Brady v. Maryland, 373
U.S. 83, 87 (1963); Strickler v. Greene, 527 U.S. 263, 282 (1999).
For ease of exposition, we (like the Supreme Court) refer to the
Government’s nondisclosure of favorable evidence as the
“suppression” of evidence. See Brady, 373 U.S. at 87; Strickler,
527 U.S. at 282.

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Way). The four suspects fled on foot. One of the first officers

on the scene, Michael Cox, gave chase. Cox pursued one suspect,

Robert Brown, towards a fence. Meanwhile, other officers arrived

at the “confused and changing scene[.]” Conley V, 323 F.3d at 16.

Officer Richard Walker arrived fourth; Petitioner fifth. Both

Walker and Petitioner joined the foot chase. Other officers in the

chase mistakenly took Cox, an undercover officer dressed in

plainclothes, as a fleeing suspect. They caught Cox at the fence

and proceeded to brutally beat him. The assaulting officers

discovered their mistake and dispersed, leaving Cox badly injured.

Petitioner ultimately apprehended Brown.

The Boston Police Department Internal Affairs Division

(IAD) thereafter commenced an investigation into Cox’s beating. An

IAD officer interviewed Walker during the investigation. Walker

informed IAD he observed Cox chase Brown towards the fence on

Woodruff Way. Walker further stated that he observed a police

officer behind Cox, but he could not identify the officer. Walker,

however, subsequently retracted his statement about observing an

officer behind Cox.

In 1997, a federal grand jury convened to determine if

the officers involved in Cox’s beating used excessive force in

violation of federal law. See 18 U.S.C. § 242. An FBI agent

interviewed Walker. According to an FBI memorandum memorializing

the details of the interview, Walker agreed to take a polygraph

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examination concerning his retraction of the statement about

observing another officer behind Cox. The FBI memorandum, in

relevant part, states:

[Walker] felt [compelled to say he saw
something during the IAD interview] because he
knows [Cox] and likes [Cox and] he felt bad
that he could not say what happened and
therefore convinced himself that he actually
saw someone or something. But since that
interview he has convinced himself that he did
not actually see anyone behind [Cox] or anyone
hit [Cox]. WALKER also suggested that perhaps
if he was hypnotised [sic] he might truly
recall what was going on versus what he
indicates was tunnel vision.

(emphasis added). Walker subsequently refused to take a polygraph

examination.

The grand jury subpoenaed Petitioner and Walker to

testify during the course of its investigation. Petitioner

testified that: he did not observe anyone beating Cox; he pursued

Brown to the fence; he did not see anyone between himself and

Brown; he pursued Brown over the fence and apprehended Brown.

Walker testified that: he did not see anyone beating Cox; he

observed Cox chase Brown towards the fence; he observed Brown “flip

over” the fence; he observed Cox grab at Brown as he flipped over

the fence; and he observed Cox come back down without clearing the

fence while Brown landed on the other side of the fence. The

prosecutor also questioned Walker about his prior statement to IAD:

Q: [D]id you see someone behind Officer Cox
as he was going through the fence?
A: No, I didn’t.

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 Q: So, why did you say that you did to
Internal Affairs?
A: At the time of the interview with Internal
Affairs . . . I started feeling guilty, like I
should have seen more than what really
happened. . . . I sat there, and I’m conjuring
up pictures of what he was asking me and what
I should have seen. Like I said, I felt
guilty not seeing more than what I saw and I
should have, but my attention was focused on
my chasing this guy towards the fence. Okay?
He [the IAD officer] asked me the question,
‘Did I see anyone,’ or whatever the question
was, and I was sitting there saying that from
where I was, maybe I should have seen someone,
and I told him, ‘Yes, I did.’ That’s the
reason for my answer.
Q: And why were you feeling guilty?
A: Like I said, I should have seen, things
are happening directly in front of you, and
you’re sitting there saying, there are four
people in this room, but I only saw two. It
shouldn’t be that way. I should have seen all
four people. It was right in front of me.

Walker further testified he was “sure” about his grand jury

testimony. The grand jury did not indict any officers for

violating § 242.

A separate grand jury, however, indicted Petitioner for

obstruction of justice and perjury. See 18 U.S.C. §§ 1503, 1623.

The grand jury charged Petitioner with perjury for his testimony

that: (1) he did not observe another individual chase Brown to the

fence (count I); and (2) he did not observe anyone beating Cox

(count II). The obstruction of justice charge (count III) was

derivative of the other two charges. Petitioner pleaded not

guilty. The Government produced Walker’s grand jury transcripts

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during discovery, but not the FBI memorandum. See Fed. R. Crim. P.

16(a)(1)(E).

Trial commenced in 1998. The Government presented the

testimony of Cox, Walker, and Brown (the fleeing suspect) to prove

Petitioner perjured himself before the grand jury. Cox testified

he pursued Brown to the fence and unsuccessfully grabbed at Brown

as he scaled the fence. Cox testified that no other officer was

ever between himself and Brown. Walker testified he observed Cox

chase Brown to the fence. Walker observed Brown scale the fence

and Cox grab at him, but did not observe anything thereafter.

Brown testified he observed an African-American male in black

clothing (a description that fit Officer Cox) chasing him as he ran

towards the fence and, as he scaled the fence, felt someone touch

his foot. After scaling the fence, Brown looked back and observed

police officers beating Cox. Brown made eye contact with a tall

Caucasian officer (a description that fit Petitioner) who was

standing next to the officers beating Cox. Brown testified the

same tall white officer arrested him on the other side of the

fence.

The jury convicted Petitioner on count I, finding

Petitioner perjured himself when he testified he did not observe

any other officer chase Brown to the fence. The obstruction of

justice conviction on count III necessarily followed. The jury

acquitted Petitioner on count II, finding Petitioner did not commit

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perjury when he testified he did not observe any officer beating

Cox. We affirmed on appeal, holding (among other things) the

Government presented sufficient circumstantial evidence to convict

Petitioner. Conley I, 186 F.3d at 19-20. Petitioner subsequently

learned the Government failed to disclose impeachment evidence,

including the FBI memorandum, in its possession prior to trial. He

filed a motion for a new trial, which the district court granted.

Conley II, 103 F. Supp. 2d at 58 (Keeton, J.). On appeal, we

reversed because “the district court did not apply the correct

legal test[,]” Conley III, 249 F.3d at 39, and ordered the

execution of Petitioner’s sentence. Id. at 47.

Petitioner thereafter filed the instant § 2255 motion in

the district court to set aside his perjury and obstruction of

justice convictions. The district court granted the motion,

finding Petitioner carried his burden under Fed. R. Crim. P. 33 of

showing the suppressed evidence would probably produce an acquittal

upon retrial. Conley IV, 164 F. Supp. 2d at 223 (Keeton, J.); see

also United States v. Wright, 625 F.2d 1017, 1019 (1st Cir. 1980)

(establishing four elements a defendant must satisfy to be entitled

to a new trial under Rule 33). On appeal, we again reversed. The

en banc Court, however, withdrew the opinion when it granted

Petitioner rehearing. Conley V, 323 F.3d at 11. The en banc Court

held the district court incorrectly employed the Wright test when

it granted Petitioner a new trial because a new-evidence claim

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under Wright is not cognizable under § 2255. Id. at 11, 13-14.

The en banc Court, therefore, vacated the district court’s decision

and remanded the case for the district court to consider

Petitioner’s new-evidence claim under Brady, which is “a settled

basis for collateral attack.” Id. at 14, 16. In so doing, the en

banc Court ordered the case reassigned to a different district

judge. Id. at 15.

On remand, the newly-assigned district judge faithfully

followed the Conley V mandate. See Conley VI, 332 F. Supp. 2d at

305-306 (Young, C.J.). The court cataloged the “new” or suppressed

evidence – the so-called “Brady material,” see Strickler v. Greene,

527 U.S. 263, 281 (1999) – and then considered the evidence

individually and cumulatively. Conley VI, 332 F. Supp. 2d at 310-

12, 315-24. The court concluded the Government’s failure to

disclose the FBI memorandum violated Petitioner’s right to due

process under Brady because the document could have been used at

trial to impeach Walker. Id. at 319. The district court found the

remainder of the suppressed evidence immaterial under Brady.2 Id.

at 320-22.

2
We do not express any opinion on the remainder of the
suppressed evidence, including Brown’s booking report, because the
Government’s failure to disclose the FBI memorandum warrants habeas
relief. As the en banc Court predicted, the district court’s
“well-worked-out assessment” greatly assisted our evaluation of
Petitioner’s Brady claim. See Conley V, 323 F.3d at 15.

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 II.

On appeal, the Government argues its suppression of the

FBI memorandum did not prejudice Petitioner because the memorandum

was cumulative of other impeachment evidence in Petitioner’s

possession prior to trial. The Government also claims Petitioner

would not have used the FBI memorandum at trial and, if he had, he

still would not have suffered any prejudice. Reviewing

Petitioner’s Brady claim de novo, see Moreno-Morales v. United

States, 334 F.3d 140, 145 (1st Cir. 2003), we reject the

Government’s three arguments.3

A.

The Fifth Amendment provides no person shall be deprived

of liberty without due process. U.S. Const. amend V. In Brady,

373 U.S. at 87, the Supreme Court held the Government’s suppression

of evidence favorable to the accused violates due process where the

evidence is material to guilt or punishment. To establish a Brady

violation, a habeas petitioner must demonstrate: (1) the evidence

3
Some tension exists within this Circuit over the proper
standard of review for Brady claims raised in a § 2255 motion. The
materiality question under Brady – the third Brady component going
to constitutional error – is a mixed question of law and fact.
Ouimette v. Moran, 942 F.2d 1, 4 (1st Cir. 1991). Some deference
to the district court’s resolution of fact-dominated questions in
the Brady context is therefore due, even on collateral review. Cf.
id.; Ellis v. United States, 313 F.3d 636, 641 (1st Cir. 2002). In
Moreno-Morales, 334 F.3d at 145, however, we reviewed a Brady
materiality question raised in the context of a § 2255 motion de
novo. We need not resolve the tension in this case because
Petitioner prevails even under the more onerous (or less
deferential) de novo standard.

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at issue is favorable to him because it is exculpatory or

impeaching; (2) the Government suppressed the evidence; and

(3) prejudice ensued from the suppression (i.e., the suppressed

evidence was material to guilt or punishment). Strickler, 527 U.S.

at 281-82.

Impeachment evidence must be material before its

suppression justifies a new trial. Wood v. Bartholomew, 516 U.S.

1, 5 (1995) (per curiam). The suppression of impeachment evidence

is “material” when a reasonable probability exists “that the result

of the trial would have been different if the suppressed documents

had been disclosed to the defense.” Strickler, 527 U.S. at 289.

A “reasonable probability” exists if the Government’s evidentiary

suppression undermines confidence in the verdict. Kyles v.

Whitley, 514 U.S. 419, 434 (1995). “This somewhat delphic

‘undermine confidence’ formula suggests that reversal might be

warranted in some cases even if there is less than an even chance

that the evidence would produce an acquittal.” United States v.

Sepulveda, 15 F.3d 1216, 1220 (1st Cir. 1993); see also United

States v. Cunan, 152 F.3d 29, 34 (1st Cir. 1998) (explaining a

petitioner may be entitled to a new trial under Brady without

convincing the court of the certainty of a different outcome).

“Thus, the law makes it easier for [habeas petitioners] to obtain

a new trial where the government has engineered an unfair trial by

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withholding material exculpatory [or impeachment] evidence.”

United States v. Josleyn, 206 F.3d 144, 153 (1st Cir. 2000).

We evaluate the strength of the impeachment evidence and

the effect of its suppression in the context of the entire record

to determine its materiality. United States v. Bagley, 473 U.S.

667, 683 (1985); United States v. Agurs, 427 U.S. 97, 112 (1976).

Impeachment evidence is important because “if disclosed and used

effectively, it may make the difference between conviction and

acquittal.” Bagley, 473 U.S. at 676. In other words, “[t]he

jury’s estimate of the truthfulness and reliability of a given

witness may well be determinative of guilt or innocence[.]” Napue

v. Illinois, 360 U.S. 264, 269 (1959). That is why, in the Brady

context, the Court has repeatedly stressed “the effective

impeachment of one eyewitness can call for a new trial even though

the attack does not extend directly to others[.]” Kyles, 514 U.S.

at 445 (citing Agurs, 427 U.S. at 112-13 & n.21).

The Government’s suppression of impeachment evidence,

therefore, can warrant a new trial “where the evidence is highly

impeaching or when the witness’ testimony is uncorroborated and

essential to the conviction.” United States v. Martinez-Medina,

279 F.3d 105, 126 (1st Cir. 2002) (emphasis added). The Supreme

Court, for example, has found Brady violations where the Government

failed to disclose impeachment evidence that could have been used

to impugn the credibility of the Government’s “key witness,” see

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Giglio v. United States, 405 U.S. 150, 154-55 (1972), or that could

have “significantly weakened” key eyewitness testimony. Kyles, 514

U.S. at 441, 453. Suppressed impeachment evidence is immaterial

under Brady, however, if the evidence is cumulative or impeaches on

a collateral issue. United States v. Dumas, 207 F.3d 11, 16 (1st

Cir. 2000); see also Moreno-Morales, 334 F.3d at 148 (finding

suppressed impeachment evidence that “largely mirror[ed]” disclosed

impeachment evidence immaterial); United States v. Gonzalez-

Gonzalez, 258 F.3d 16, 25 (1st Cir. 2001) (finding suppressed

impeachment evidence immaterial where the evidence was cumulative

of similar disclosed impeachment evidence); Barrett v. United

States, 965 F.2d 1184, 1192 (1st Cir. 1992) (same); United States

v. Sanchez, 917 F.2d 607, 618 (1st Cir. 1990) (same). Suppressed

impeachment evidence, if cumulative of similar impeachment evidence

used at trial (or available to the petitioner but not used) is

superfluous and therefore has little, if any, probative value.

United States v. Boyd, 55 F.3d 239, 246 (7th Cir. 1995); see also

Fed. R. Evid. 403 (providing cumulative evidence may be excluded

even if relevant).

Similarly, suppressed impeachment evidence has little

probative value if additional evidence strongly corroborates the

witness’s testimony the suppressed evidence might have impeached.

Cf. Strickler, 527 U.S. at 292-94, 296. The Brady-materiality test

is not, however, a sufficiency of the evidence test. Id. at 290;

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McCambridge v. Hall, 303 F.3d 24, 37 (1st Cir. 2002) (en banc). In

Kyles, 514 U.S. at 434-35, the Supreme Court explained that a

habeas petitioner “need not demonstrate that after discounting the

inculpatory evidence in light of the undisclosed evidence, there

would not have been enough left to convict. The possibility of an

acquittal on a criminal charge does not imply an insufficient

evidentiary basis to convict.”

B.

In this case, the Government’s suppression of the FBI

memorandum violated Petitioner’s right to due process under Brady.

To begin, the FBI memorandum was favorable to Petitioner because he

could have used the document at trial to impeach Walker’s ability

to recall. See, e.g., Dumas, 207 F.3d at 16 (recognizing “ability

to recall” as a valid impeachment method). Indeed, the FBI

memorandum was “highly impeaching.” See Martinez-Medina, 279 F.3d

at 126; see also Conley VI, 332 F. Supp. 2d at 316-17. Walker’s

request to be hypnotized in order to “truly recall” the events

preceding Cox’s beating indicates, at best, that he did not

remember what occurred on Woodruff Way and, at worst, that he

“convinced himself” of a new version of events to protect his

friend, Officer Cox. The implication of the latter undermines

Walker’s testimony “[s]ince the evolution over time of a given

eyewitness’s description can be fatal to [his] reliability[.]”

Kyles, 514 U.S. at 444; see also Moreno-Morales, 334 F.3d at 148

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(acknowledging “the impeaching power of a witness’s evolving

story.”).

Next, the Government wisely conceded it improperly

suppressed the FBI memorandum. See Conley VI, 332 F. Supp. 2d at

309, 312 & n.8. While new trials are not granted under Brady to

punish prosecutors, see Agurs, 427 U.S. at 110, we need not

entirely ignore the Government’s failure to disclose evidence. See

Sepulveda, 15 F.3d at 1220. As Judge Posner explained, the

“gravity of the prosecutors’ misconduct is relevant only insofar as

it may shed light on the materiality of the infringement of the

defendants’ rights; it may support, but it can never compel, an

inference that the prosecutors resorted to improper tactics because

they were justifiably fearful without such tactics the defendants

might be acquitted.” Boyd, 55 F.3d at 241.

We thus turn to the dispositive materiality inquiry. The

question is whether the Government’s suppression of the FBI

memorandum, viewed in the context of the entire record, undermines

confidence in the outcome of Petitioner’s trial. The Government

presented the testimony of Cox, Walker, and Brown to prove

Petitioner perjured himself when he denied seeing Cox pursue Brown

(count I). The trio’s testimony provided sufficient evidence to

convict Petitioner.4 See Conley I, 186 F.3d at 19-20; Conley V,

4
The dissent, no doubt, applies a sufficiency of the evidence
test to conclude the Government’s suppression of the FBI memorandum
was immaterial. See dissent op. at 4, 16. The dissent’s

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323 F.3d at 16. The weakness in the Government’s case, however,

“lies in the absence of any direct evidence as to what [Petitioner]

in fact observed during the early morning hours of January 25, 1995

in the cul-de-sac at the end of Woodruff Way.” Conley I, 186 F.3d

at 19; see also Conley V, 323 F.3d at 16 (explaining the

Government’s evidence at trial was “always circumstantial because

no one testified that he or she saw [Petitioner] looking at Cox in

pursuit of Brown and [Petitioner] never admitted seeing him.”);

Conley VI, 332 F. Supp. 2d at 324 (detailing the troubling aspects

of the Government’s “highly circumstantial” case). The

Government’s case, therefore, hinged entirely on the credibility of

its witnesses. See Conley I, 186 F.3d at 20; Conley IV, 164 F.

Supp. 2d at 223; Conley V, 323 F.3d at 16.

Cox, as the district court recognized, “was an

extraordinarily sympathetic victim – a Boston police officer struck

down in the line of duty, viciously beaten and permanently injured

by fellow officers.” Conley VI, 332 F. Supp. 2d at 315. Cox’s

testimony, however, raised serious problems for the Government.

For example, Cox testified (unlike any other witness) that “[he]

saw two [suspects] run towards the fence[.]” The Government

explained this discrepancy in closing by arguing a “concussion” may

application of the incorrect legal test leads, unsurprisingly, to
its indignation, id. at 2, ability to distinguish analogous cases,
id. at 12 n.4, parade of horribles, id. at 18-19, and bewilderment
concerning today’s holding, id. at 13, 16.

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have affected Cox’s ability to recall. The evidence supported the

Government’s explanation. Cox suffered severe head trauma as a

result of the assault, losing consciousness and memory at the

scene. Thus, as the Government argued, Cox’s head trauma

tragically limited the evidentiary value of his testimony.

Brown’s testimony also proved problematic. Petitioner

impeached Brown with evidence of his previous felony convictions.

See Fed. R. Evid. 609(a). Brown also testified (unlike any other

witness) that he observed a tall white officer – Petitioner,

according to the Government – standing next to the officers beating

Cox. The jury, however, ostensibly rejected Brown’s testimony

about Petitioner’s position at the scene of the beating because it

acquitted him on count II (i.e., for testifying he did not observe

anyone beating Cox). Consequently, Brown’s testimony had little,

if any, corroborative value.

Given the inherent weaknesses in Cox’s and Brown’s

testimony, the Government relied heavily upon Walker’s testimony.

Walker provided a critical link in the Government’s chain of

circumstantial evidence; namely, a disinterested eyewitness account

of the chase. See Strickler, 527 U.S. at 293 (recognizing the

importance of disinterested eyewitness testimony). A fair reading

of Walker’s testimony in the context of the entire record confirms

that his testimony was the linchpin of the Government’s case on

count I. Tellingly, the Government never argues otherwise despite

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the district court’s same conclusion. See Conley VI, 332 F. Supp.

2d at 315.

Prior to trial, however, Petitioner did not know the

Government’s key witness previously suggested he be hypnotized to

“truly recall” the events preceding Cox’s beating. Without any

other similar material, Petitioner did not impeach Walker’s ability

to recall at trial. Consequently, the Government’s suppression of

the FBI memorandum deprived the jury of critical information. See

Giglio, 405 U.S. at 154-55 (explaining the jury is entitled to know

of impeachment evidence when such evidence could impugn the

credibility of a key witness). “Disclosure of [the FBI memorandum]

would have resulted in a markedly weaker case for the prosecution

and a markedly stronger one for the defense.” Kyles, 514 U.S. at

441. A cross examination of Walker that raised serious doubts

about his ability to recall could have changed the course of

Petitioner’s trial. Cf. United States v. Cuffie, 80 F.3d 514, 519

(D.C. Cir. 1996); Conley VI, 332 F. Supp. 2d at 316. This is

particularly true given the Government’s acknowledgment to the jury

of Cox’s memory problems and Brown’s lack of credibility. Because

Walker was essential to the Government’s case, and his personal

credibility potentially dispositive, the Government’s suppression

of the FBI memorandum may have made the difference between a

conviction or acquittal of Petitioner on count I. Bagley, 473 U.S.

at 676. The Government’s suppression of the FBI memorandum

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undermines confidence in Petitioner’s count I conviction because a

reasonable probability exists the verdict would have been different

if the Government disclosed the memorandum to the defense. Kyles,

514 U.S. at 434. Therefore, the Government’s suppression of the

FBI memorandum was material under Brady.

C.

The Government’s three arguments to the contrary are

unpersuasive. First, the Government argues the FBI memorandum is

immaterial under Brady because it is cumulative of Walker’s

properly disclosed grand jury testimony. This argument fails

because, as every judge to consider the evidence has concluded, it

mischaracterizes the evidence. See Conley IV, 164 F. Supp. 2d at

223 (Keeton, J.) (concluding “the newly discovered evidence is

highly probative and neither immaterial nor cumulative in

nature.”); Conley VI, 332 F. Supp. 2d at 316 (Young, C.J.) (finding

the FBI memorandum opened an entirely new, and hence not

cumulative, line of cross examination); Conley V, 323 F.3d at 30-31

(Torruella, J., dissenting) (asserting the “undisclosed impeachment

evidence is, for the most part, minor and cumulative[]” and then

dismissing Walker’s hypnotism statement as weak, but not

cumulative, impeachment evidence).5

5
We do not read today’s dissent as suggesting otherwise. To
the contrary, the dissent (correctly and critically) notes the FBI
memorandum contains two “pieces of information” that Petitioner did
not previously know: Walker’s hypnotism statement and his
(un)willingness to submit to a polygraph test. See dissent op. at

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 We agree the FBI memorandum is not cumulative of Walker’s

grand jury testimony. The FBI memorandum indicates Walker was so

unsure of his memory that he suggested hypnotism to “truly recall”

the events antecedent to Cox’s beating. By contrast, Walker’s

grand jury testimony indicates he was “sure” of his testimony

regarding the events antecedent to Cox’s beating. The grand jury

transcripts indicate Walker embellished before the IAD because he

wished he could have seen more, but the transcripts do not indicate

that Walker could not remember what he did testify to seeing during

the chase. Walker’s grand jury transcripts thus provided

Petitioner, at most, with the opportunity to impeach Walker based

upon his prior inconsistent statement and bias. The transcripts

did not, however, provide Petitioner with any basis to impeach

Walker’s ability to recall, an entirely different form of

impeachment.6 See Dumas, 207 F.3d at 16; Conley VI, 332 F. Supp.

2d at 318. We therefore reject the Government’s argument because

suppressed impeachment evidence “can be immaterial because of its

cumulative nature only if the witness was already [or could have

been] impeached at trial by the same kind of evidence.” Cuffie, 80

9-10.
6
The dissent claims that we have adopted a “new Brady rule”
based upon an argument first appearing in the district court’s
opinion. See dissent op. at 10-11. As the dissent implicitly
acknowledges, however, Petitioner argued the distinction between
impeachment based on ability to recall and bias in his “opening
brief” after remand in Conley V. As a result, waiver is not an
issue in this case.

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F.3d at 518 (emphasis added); United States v. O’Conner, 64 F.3d

355, 359 (8th Cir. 1995).

Second, the Government argues Petitioner would not have

used the FBI memorandum at trial even if it had been properly

disclosed. Specifically, the Government postulates Petitioner

needed to embrace Walker’s testimony to prove he arrested Brown,

thereby distancing himself from Cox’s beating for purposes of

defending against the perjury charge in count II. This argument

fails because its premise is flawed. Petitioner did not need to

embrace Walker’s testimony to establish he arrested Brown.

Petitioner presented uncontroverted evidence at trial that he

arrested Brown. Furthermore, the Government never disputed that

Petitioner arrested Brown. Instead, the Government took the exact

opposite approach. The prosecutor told the jury in opening that

“there is no dispute in this trial that the [Petitioner] did chase

Brown eventually and he eventually caught up with him and he

arrested him[.]” The Government reiterated its point in closing:

“[Petitioner] tells you, and the evidence is not disputed, he

chase[d] a suspect from a shooting several hundred yards, he

captures him at gun point, [and] he handcuffs him[.]” Further, as

the district court explained, Petitioner could have impeached

Walker’s ability to recall what happened during the rapidly

evolving situation preceding Cox’s beating while simultaneously

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embracing Walker’s testimony during the naturally less chaotic

events after Brown’s arrest. Conley VI, 332 F. Supp. 2d at 318.

We also reject the Government’s related argument that

Petitioner would not have used the FBI memorandum to impeach

Walker’s ability to recall because he made a strategic decision not

to use Walker’s grand jury transcripts at trial. The reasons for

not impeaching Walker with the grand jury transcripts are palpable

from the record. Impeaching Walker with his prior inconsistent

statement about observing another officer behind Cox would have

permitted the Government to rehabilitate Walker on redirect with

his prior consistent statement, also made under oath before the

grand jury, that he did not see another officer behind Cox. See

Fed. R. Evid. 801(d)(1)(B); see also Conley VI, 332 F. Supp. 2d at

315 (explaining Petitioner “could well have impeached Walker with

his known instances of improper embellishment, but would inevitably

have faced the [G]overnment riposte that Walker had laudably given

complete testimony and ought be considered credible because he had

included the details favorable to [Petitioner].”). At the same

time, such questioning would have opened the door for the

Government to address Walker’s motive for making the inconsistent

statement, namely, his sympathy for Cox. Therefore, impeaching

Walker with the grand jury transcripts would have harmed more than

helped Petitioner’s cause. We do not ignore these realities of

trial when engaged in a Brady analysis. Cf. Cunan, 152 F.3d at 35.

-22-
 Third, the Government argues the FBI memorandum, even if

disclosed and used at trial, is still immaterial under Brady

because “Brown’s and Cox’s testimony provided sufficient evidence

for the jury to convict [Petitioner], even without Walker’s

testimony.”7 Supreme Court and Circuit precedent clearly foreclose

this argument. Kyles, 514 U.S. at 434; McCambridge, 303 F.3d at

37. The question is not whether Petitioner would more likely than

not have received a different verdict with the FBI memorandum, but

whether in the memorandum’s absence he received a fair trial,

understood as a trial resulting in a verdict worthy of confidence.

Kyles, 514 U.S. at 434. We answer no after careful review of the

record.

III.

We do not take our task in this case lightly. Ordering

a new trial is a drastic remedy that exacts substantial costs on

the administration of justice and taxpayers. Those costs are

justified, however, “where serious doubts about the reliability of

7
The Government also asserts that “pointing out Walker’s
inconsistent statements about whether someone was behind Cox would
not have directly undermined Walker’s testimony that he saw Cox
pursuing Brown; Walker never deviated on this point.” This is
true, but not true enough. See Kyles, 514 U.S. at 443 n.14. The
inconsistencies between the two bodies of testimony “provided
opportunities for chipping away on cross-examination but not for
the assault that was warranted.” Id. The Government also misses
the point. Walker’s entire testimony – even that from which he
never deviated – could be called into question if Petitioner
impeached his ability to recall the events preceding Cox’s beating.
The issue was Walker’s credibility, not whether he actually saw
someone behind Cox.

-23-
a trial infested with constitutional error exist.” Bartholomew,

516 U.S. at 8. The district court’s order granting Petitioner’s

motion to set aside his conviction under 28 U.S.C. § 2255 is

therefore

AFFIRMED.

-- Dissent follows. --

-24-
 TORRUELLA, Circuit Judge (Dissenting). The suggestion

that there are serious doubts about the reliability of Petitioner

Conley's trial because his trial was "infested with constitutional

error," maj. op. at 22 (emphasis added), is hyperbole that cannot

remain unanswered. It is not to quibble about words, however, that

I am forced to dissent. I simply cannot agree that Conley's trial,

which resulted in a conviction affirmed by this court on direct

appeal, United States v. Conley, 186 F.3d 7 (1st Cir. 1999), cert.

denied, 529 U.S. 1017 (2000) (Conley I), is unworthy of confidence

by reason of the Government's failure to disclose the April 9, 1997

FBI Memorandum of an interview with Police Officer Richard Walker.

Although I commend the thankless efforts of the district

judge in having to plow through the record of this case as required

by the instructions of the en banc court, Conley v. United States,

323 F.3d 7 (1st Cir. 2003) (en banc) (Conley V), and further

compliment his outstanding professional diligence, I do not believe

his conclusions are entitled to any particular deference on appeal.

The matter before us is, after all is said and done, strictly a

question of law which we are required to review de novo. Moreno-

Morales v. United States, 334 F.3d 140, 145-48 (1st Cir. 2003)

(reviewing de novo Brady materiality claims stemming from a § 2255

petition). Again, with due respect to the district judge who was

put in the unenviable position of having to review a cold record of

a case which was not tried before him, he was in no better position

-25-
than we are to determine the lone issue before us: whether the

Government's failure to produce "the FBI memorandum, viewed in the

context of the entire record, undermines confidence in the outcome

of Petitioner's trial," maj. op. at 14 (emphasis added). Cf.

Conley V, 323 F.3d at 16-18 (Bownes, J., dissenting), 23

(Torruella, J., dissenting).

I respectfully but firmly disagree with the result

reached by the district court, affirmed by the majority, that the

Government's failure to disclose the FBI Memorandum undermines

confidence in the jury's verdict of guilty. On the contrary, I

believe that there is no reasonable probability that had the FBI

Memorandum been produced, a verdict absolving Petitioner would have

resulted. Strickler v. Greene, 527 U.S. 263, 281 (1999). More on

point, I am unable to conclude that there is "a probability

sufficient to undermine confidence in the [verdict]," United States

v. Bagley, 473 U.S. 667, 682 (1985) (citation omitted), reached

more than eight years ago by a jury of Conley's peers. I am much

afraid that the undermining that comes to mind is the negative

perception likely to arise from the litany of maneuvers that have

taken place in this case to overturn what was a just and

constitutionally sound verdict.

The following is what was established, in the context of

the whole record,8 beyond a reasonable doubt. On January 25, 1995,

8
I will only recount the minimum relevant facts.

-26-
following a shooting in the early morning hours in Boston in which

it was believed a police officer had been shot, there ensued a

police chase of several African-American suspects in a Lexus,

eventually trapping the vehicle in a dead-end street. The first

police car to arrive behind the cornered Lexus was an unmarked

police car with two persons on board: one, an African-American

police officer in plainclothes, Michael Cox, was wearing jeans, a

black hooded sweatshirt, and a black down jacket; the other,

Charles Bullard, a civilian security officer from the scene of the

shooting.

Cox, the first out of the unmarked police vehicle,

proceeded immediately to chase Robert Brown, who had exited the

Lexus and was fleeing towards a fence to the right of that

automobile. At the trial, Cox testified that he was "right behind"

Brown and caught up with him as the latter was climbing over the

fence. Trial Tr. I at 76-77; Trial Tr. II at 30-31. Although Cox

attempted to grab Brown's jacket, the suspect shook loose and

landed on the other side of the fence. Trial Tr. I at 78; Trial

Tr. II at 3-4. Brown testified that he saw a black man wearing a

black hood running after him as he ran toward the fence, and that

he felt someone touch his foot as he attempted to scale the fence,

id. at 94, 96. In his haste to escape in the dark, Brown hit a

tree, splitting a tooth in the process. Id. at 97.

-27-
 As Brown got up to run away, he looked back and saw a

black man trying to climb over the fence, id., at which point that

person was struck from behind with a blunt object by police

officers who had just arrived. Id. at 98-101. Once Cox was on the

ground, these officers beat and kicked Cox repeatedly in the head,

back, face, and mouth. Someone then shouted "stop, he's a cop,"

and the officers quickly dispersed. No one came to Cox's aid.

Thus commenced the "blue wall of silence" that leads to this case.

Brown testified at trial that before the assaulters

disappeared, and while Cox was being hammered, he made eye contact

with a tall white police officer who was standing next to the

officers beating the man in the hood. Id. at 102. Thereafter,

Brown attempted to escape, running almost a mile before he was

physically captured by this same tall white officer, who turned out

to be Petitioner Conley. Id. at 103-04, 239-41. During the course

of the foot chase, Conley had dropped his radio, which was

recovered by Police Officer Walker and was handed personally to

Conley, as Walker had run behind Conley after Brown. Id. at 36-37.

The above evidence was more than sufficient to sustain

the perjury and obstruction of justice counts which resulted from

Conley's grand jury testimony to the effect that (1) he chased

Brown to the fence, (2) he did not observe anyone between himself

and Brown, and (3) he pursued Brown over the fence. See Conley I,

186 F.3d at 7.

-28-
 Up to this point, I have purposely omitted mention of

Walker's various versions of that night's events because although

sufficiency of the evidence is not, or theoretically, should not,

be the test, Kyles v. Whitley, 514 U.S. 419, 434 (1995),9 the fact

is that the Government's case was just as strong against Conley

irrespective of any alleged Brady flaws, which I do not believe

exist.

At trial, Walker, an African-American police officer,

testified that he arrived at the scene in a patrol car behind the

car of Cox, whom he knew. Walker saw Cox chase Brown "three feet

behind him," id. at 30-31, saw the latter go over the fence while

Cox tried to grab him, id. at 76, and observed Cox come back down

while Brown landed on the other side of the fence. He did not

testify to seeing anything further, including anyone beating Cox.

He did, however, testify that he handed Conley his lost radio after

helping Conley in Brown's chase, id. at 36-37, an important bonding

link with Conley, as we shall point out, which made his impeachment

by Conley unlikely.

9
This is a rule which has been subtly but effectively ignored
by both this Court, and more recently as a result of its
instructions, by the district court. See Conley v. United States,
332 F. Supp. 2d at 313 (Conley VI) ("Some a priori evaluation of
the verdict appears necessary, given the First Circuit's admonition
that'[t]he government's evidence at trial was assuredly adequate
for conviction, but . . . .'"); see also id. at 324 ("Holes in the
Trial Testimony").

-29-
 Walker-related evidence, however, did not end here. The

Boston Police Department's Internal Affairs Division (IAD)

conducted its own investigation into this sordid affair, during the

course of which Walker had informed the IAD that he had observed a

police officer behind Cox, but could not identify him, an

observation which he later retracted. Moreover, during the course

of testifying before the same grand jury that questioned Conley,

Walker was asked to explain the prior inconsistencies in his

testimony before the IAD, a matter that will be covered in more

detail presently. Suffice it to say that for now, Walker's grand

jury testimony was in the defense's possession, and they chose not

to use it for strategic reasons.

The majority's affirmance of the district court's

issuance of a writ of habeas corpus, which action is based solely

on the Government's failure to produce in the FBI Memorandum,10 is

flawed because of the following reasons: (1) this document is

cumulative of Walker's grand jury testimony which Conley possessed

before trial, but refrained from using for strategic purposes,

United States v. García-Torres, 341 F.3d 61, 70 (1st Cir. 2003)

("[I]mpeachment evidence that is merely cumulative . . . is

insufficient to establish prejudice under Brady") (internal

quotation and quotation marks omitted); Moreno-Morales, 334 F.3d at

10
"[W]ere it not for the FBI memorandum, this Court would have
denied the writ, even considering the variety of undisclosed items
taken together." Conley VI, 332 F. Supp. 2d at 324.

-30-
148 (same); and (2) it is well-established that nondisclosure fails

to warrant a new trial under Brady because Walker's testimony was

substantially corroborated by both Cox and Brown. Strickler, 527

U.S. at 293-94 (failure to disclose impeachment evidence does not

contravene Brady where other witnesses provide corroborating

evidence in support of conviction); García-Torres, 341 F.3d at 71

(same).

I

To conclude that the possible impeachment value of the

FBI Memorandum is cumulative of Walker's grand jury testimony, one

need only place them side by side and read their contents:

-31-
 Grand Jury Testimony FBI Memorandum
April 1997
April 9, 1997
Q: [D]id you see anyone behind
Officer Cox as he was going
through the fence?
A: No, I didn't. According to WALKER, he saw
Q: So, why did you say that you victim and suspect running to
did to Internal Affairs? fence and saw suspect get over
A: At the time of the interview the fence. He now states that
with Internal Affairs . . . I he did not see anyone running
started feeling guilty, like I behind victim. He only saw
should have seen more than what victim COX behind suspect.
really happened. Okay? I sat During Internal Affairs
there, and I'm conjuring up interview and Suffolk County
pictures of what he was asking GJ, WALKER stated that he saw
me and what I should have seen. someone behind Victim but could
Like I said, I felt guilty not not identify this person or
seeing more than what I saw and give a description of the
should have, but my attention individual other than to say it
was focused on chasing this guy was a police officer. During
towards the fence. Okay? [the pre-grand jury interview he
IAD officer] asked the states that he did not see
question,"Did I see anyone," or anyone but felt compelled
whatever the question was, and during the IAD interview to say
I was sitting there saying that he saw something. He felt this
from where I was, maybe I way because he knows victim and
should have seen someone, and likes victim he felt bad that
told him, "Yes, I did." That's he could not say what happened
the reason for my answer. and therefore convinced himself
Q: And why were you feeling that he actually saw someone or
guilty? something. But since that
A: Like I said, I should have interview he has convinced
seen, things are happening himself that he did not
directly in front of you, and actually see anyone behind
you're sitting there saying, victim or anyone hit victim.
there are four people in this WALKER also suggested that
room, but I only saw two. It perhaps if he was hypnotised
shouldn't be that way. I [sic] he might truly recall
should have seen all four what was going on versus what
people. It was right in front he indicates was tunnel vision.
of me.
During the pre-FGJ interview,
Tr. Vol. II at 235-36. WALKER indicated he would be
willing to take a polygraph to
clear up this discrepancy.

-32-
 Walker's grand jury testimony contained all the

information Conley needed to thoroughly impeach Walker's

credibility as a witness: (1) he admitted to having given false

information to the IAD about seeing someone behind Cox at the

fence, while "now" he was saying he had not seen anyone; (2) he

explained that he did this because he was feeling "guilty at not

seeing more than what he saw and should have;" and (3) by stating

that he "should have seen things happening directly in front" of

him, but did not, he was at a minimum indicating his poor qualities

as a witness.

The FBI Memorandum adds little to this information. As

in (1), above, Walker admitted to having told IAD that he saw

someone behind Brown, but since then convinced himself "that he did

not see anyone running behind [Cox]. He only saw . . . Cox behind

[Brown]." Similarly, as in (2), above, Walker explained this

discrepancy because he "felt compelled during the IAD to say he saw

something . . . because he knows [Cox] and likes [him] . . . [and

thus] felt bad that he could not say what happened."

Thus, the essential ammunition needed by Conley to attack

Walker's credibility as a prosecution witness was practically

identical in both his grand jury testimony and the FBI Memorandum

summarizing his statement to that agency.

We are thus left with two pieces of information contained

in the FBI Memorandum that were not previously known: (1) Walker's

-33-
cryptic hypnotism statement; and (2) his willingness to submit to

a polygraph test. These evidence are at best de minimis when

compared with the powerful evidence in Conley's hands which showed

that Walker had changed his testimony, not on a collateral,

insubstantial issue, but on a critical question that went to the

heart of the Government's case against Conley: his presence or

absence from the scene of the assault against Cox.

The fact of the matter is that Conley's defense chose not

to impeach Walker with his prior inconsistent statements, and for

good reason. Conley needed Walker's trial testimony to the effect

that he had seen a police officer at the bottom of the hill who fit

Conley's description, thus placing Conley elsewhere than at the

scene of Cox's beating. This was not just a question of passively

failing to cross-examine Walker regarding his changes of heart.

Conley's defense actually objected to the Government's attempt to

introduce Walker's prior inconsistent statement, see Trial Tr. II

at 51-52, and vigorously relied on his credibility in an attempt to

establish by circumstantial evidence during his cross-examination

(through evidence of the dropped and recovered radio), as well as

during closing arguments, that Conley was the officer Walker saw at

the bottom of the hill.

An argument first appearing in the district court's

opinion, Conley VI, 332 F. Supp. 2d at 316, adopted by the

majority, maj. op. at 17, articulates a new Brady rule regarding

-34-
distinctions between the kind of impeachment evidence provided by

the FBI Memorandum (Walker's recall ability) versus that in his

grand jury testimony (Walker's bias towards Cox). It is an

argument never made by Conley's attorneys throughout the catalogue

of initial actions and appeals in this case, from the trial through

the initial habeas corpus proceedings, and which no amount of

judicial voyeurism should be able resurrect. See, e.g., Playboy

Enters. v. Public Serv. Comm'n, 906 F.2d 25, 40 (1st Cir.), cert.

denied, 498 U.S. 959 (1990) ("An appellant waives any issue which

it does not adequately raise in its initial brief"); United States

v. Benavente Gómez, 921 F.2d 378, 386 (1st Cir. 1990) (arguments

not raised in opening appellate brief are waived); KPS & Assocs.,

Inc. v. Designs By FMC, Inc., 318 F.3d 1, 25 (1st Cir. 2003)

(same).

Furthermore, the "ability to recall" versus "bias"

distinction is one that fails to have any relevance to the facts of

this appeal. Before the grand jury, Walker stated that "[he]

should have seen" what was happening directly in front of him.

What is that if not excellent material with which to attack a

witness's ability to recall or perceive what took place at the

fence that fateful night? I simply cannot agree with the majority

that the grand jury "transcripts did not . . . provide Petitioner

with any basis to impeach Walker's ability to recall." Maj. op. at

19. The grand jury testimony, like the FBI memorandum, mentions

-35-
that contrary to Walker's prior statements, he now believes that he

did not see anyone running behind Brown, which pertains to Walker's

ability to recall.11 Yet, as explained, Conley's defense simply had

no desire to take this counterproductive attack against Walker:

Conley needed Walker's testimony about seeing a person resembling

Conley at the bottom of the hill to show that Conley did not see

the officers beat Cox, thereby rebutting allegations that he

committed perjury in testifying that he had not seen the beating

(Count 2).

It defies all logic to now claim that it was in Conley's

interest to impeach Walker with the information in the FBI

Memorandum, most of which he already possessed. Conley knew the

following: (1) Walker and Cox were friends; (2) Walker felt guilty

11
The cases cited by the majority for the proposition that
"suppressed impeachment evidence 'can be immaterial because of its
cumulative nature only if the witness was already [or could have
been] impeached at trial by the same kind of evidence,'" maj. op.
at 19 (citing United States v. Cuffie, 80 F.3d 514 (D.C. Cir.
1996); United States v. O'Conner, 64 F.3d 355, 359 (8th Cir.
1995)), are inapposite. In Cuffie, the Court, immediately prior to
citing this proposition, stated that "we must look not to the ways
defense counsel was able to impeach [the witness], but to the ways
in which the witness' testimony was allowed to stand unchallenged."
80 F.3d at 518 (citations omitted). The Court reasoned that
although the witness was impeached on other grounds, "[n]one of the
impeachment that defense counsel conducted . . . related to
perjury[,] . . . an infirmity in [the witness'] testimony that is
almost unique in its detrimental effect on a witness' credibility."
Id. Here, Conley's defense self-servingly chose not to impeach
Walker's credibility with his ability to recall, although Conley
could have certainly done so: both the grand jury testimony and
FBI memorandum, for example, raise doubts on Walker's ability to
recall because contrary to his prior statements, he now believes
that he did not see anyone running behind Brown.

-36-
about not seeing more; (3) this guilt led to Walker making prior

inconsistent statements; and (4) Walker believed that an "Officer

Ryan," rather than Conley, was the officer who arrested Brown

(another important memory lapse, but one which Conley did not wish

to challenge).

I cannot conceive how any court can conclude that the

failure to produce the FBI Memorandum undermines confidence in the

outcome of Conley's trial. The facts in this case pale when

compared with, for example, those in Moreno-Morales, 334 F.3d at

140. In that case, in which Brady relief was denied, we held that

confidence in the outcome of the trial was not undermined

notwithstanding the prosecutor's failure to reveal thirteen

polygraph examinations by a key government witness who recanted in

his testimony. Id. at 145-48. We reasoned that because the

inconsistencies had been known by the defense through grand jury

transcripts which it possessed yet chose not to use -- a situation

almost identical to the present one -- the uncovered evidence

"would have been merely cumulative, and 'the unavailability of

cumulative evidence does not deprive the defendant of due process'"

under Brady. Id. at 147-48 (citing United States v. Sánchez, 917

F.2d 607, 618 (1st Cir. 1990); Zeigler v. Callahan, 659 F.2d 254,

266 (1st Cir. 1981)). Similarly, in United States v. Sepúlveda, 15

F.3d 1216 (1st Cir. 1993), we found that although the withheld

evidence of a "government deal" would have discredited a government

-37-
witness and was therefore "potentially useful to the defense," id.

at 1220, we nonetheless held that it was "not enough" to undermine

confidence in the outcome since "all the material for making that

assessment was available to the jury, and the new information . . .

added very little," id. at 1221. See also United States v. García-

Torres, 341 F.3d 61 (finding that although a withheld evidence

would have undermined a witness's credibility, it had "weak

evidentiary value" and "substantial other evidence" supported the

verdict and thus failed to undermine confidence in the verdict).

Given our circuit precedent, I simply fail to see how the withheld

evidence in this case, given its cumulative nature and weak

evidentiary value, should at all undermine our confidence in the

verdict.

II

Equally important for Brady purposes, Walker's testimony

is fully corroborated by valid, interlocking evidence, which makes

the alleged Brady violation harmless. See Strickler, 527 U.S. at

293-94; García-Torres, 341 F.3d at 77.

As has been previously outlined, both Cox and Brown

provided ample corroborating evidence at trial concerning the

timing of Cox's pursuit of Brown at the fence, directly

contradicting Conley's grand jury testimony. The testimonies of

Cox and Brown not only complement of each other, but they are in

critical agreement with Walker's core testimony describing Cox's

-38-
chase of Brown to the fence. Cox testified that he was right

behind Brown as he pursued Brown to the fence, Trial Tr. I at 77-

78, that there was no one between him and Brown when Brown reached

the fence and climbed it, id. at 85, 88, and that he tried

unsuccessfully to pull Brown down from the fence, id. at 129-130;

Trial Tr. II at 14. Substantially equally, Brown testified that a

black man wearing black clothing (a description matching Cox that

night) ran after him as he was running toward the fence, id. at 94,

and that he felt someone touch his foot as he was scaling the

fence, id. at 95-96, 125. Walker's testimony duplicates Cox's and

Brown's accounts: he saw Cox "three feet behind" a black male

suspect, who climbed the fence while Cox reached for him. Id. at

30-31, 76. On this, Conley stated to the grand jury:

Q: Did you see anyone else in plain clothes
behind [Brown] as he went towards the fence?
A: No, I did not.
Q: Did you see, as he went on top of the fence
or climbed the fence, another individual in
plain clothes standing there, trying to grab
him?
A: No, I did not.
Q: --as he went over the fence?
A. No, I did not.
Q: So that didn't happen; is that correct?
Because you saw the individual [Brown] go over
the fence?
A: Yes, I seen [sic] go over the fence.
Q: And if these other things that I've been
describing, a second - another plainclothes
officer chasing [Brown], and actually grabbing
him as he went to the top of the fence, you
would have seen that if it had happened; is
that your testimony?
A: I think I would have seen that.

-39-
Trial Tr. II at 235-36.

With all due respect to my various colleagues on both the

district and appellate courts, who studiously and repeatedly have

had to read through the evidence in this case, they need not have

gone any further than the above to have reached the conclusion

which is self evident: there was ample, credible, corroborating

evidence with which to sustain Conley's flagrant perjury and

obstruction of justice.

Although I have previously raised this concern, see

Conley V, 323 F.3d at 25 n.14 (Torruella J., dissenting), I cannot

close this dissent without commenting on the unjustified

denigration of the Government's case by reason of its reliance on

circumstantial evidence. Cf. United States v. Gamache, 156 F.3d 1,

8 (1st Cir. 1998) ("circumstantial evidence, if it meets all the

other criteria of admissibility, is just as appropriate as direct

evidence and is entitled to be given whatever weight the jury deems

it should be given); United States v. Hughes, 211 F.3d 676, 681

(1st Cir. 2000) (same). This unfortunate trend was initially

commenced by the en banc court, id. at 16, was predictably

continued by the district court, Conley VI, 332 F. Supp. 2d at 324,

and has ultimately been crowned by the majority in this opinion,

maj. op. at 15-16, whose blistering attack on Cox, Walker, and

Brown would almost lead me to conclude that Cox assaulted himself

were it not that I also have some knowledge of the evidence in this

-40-
case. Despite repeated attempts during cross-examination to

challenge Cox's ability to recall the events of the night in

question, Trial Tr. I at 102-03, 107-09, 117-25, 129, as well as

Brown's credibility, Trial Tr. II at 130, 145-54, the jury

convicted Conley of perjury and obstruction of justice. Of course,

Conley wisely chose not to cross-examine Walker in the manner that

he did Cox and Brown despite having all the ammunition that he

needed to do so. Lastly, a point that has been consistently

downplayed, if not outright overlooked, by my colleagues, Brown's

testimony placing Conley at the fence while Cox was being beaten is

anything but circumstantial evidence, a point conceded in

Petitioner's brief, Brief for Petitioner at 6 n.4, although it is

allegedly discounted because of Conley's acquittal on Count 2.12

What is apparently neglected by this contention is that Conley's

presence at the fence is also relevant to placing in context his

perjured testimony to the effect that there was no one other than

himself at the fence.

12
I cannot agree with the majority's assertion that Conley's
acquittal on Count 2 (i.e., for testifying that he did not observe
anyone beating Cox), ostensibly means that the jury rejected
Brown's testimony altogether and that Walker was the center of the
government's case. Maj. op. at 13. It could very well mean that
the jury did not credit that part of Brown's testimony in which he
said he saw Conley watch the beating of Cox -- a part of Brown's
testimony that was neither corroborated by Cox nor Walker. The
rest of Brown's testimony, however, was corroborated by both Cox
and Walker.

-41-
 The circumstantial evidence argument is a red herring

that obfuscates the fact that Brady analysis does not allow for a

retrial of the case under the guise of a § 2255 proceeding, as the

majority in effect does. See also Conley VI, 332 F. Supp. 2d at

324. This Court, in affirming Conley's conviction on direct

appeal, deemed the circumstantial evidence sufficient. Conley I,

186 F.3d at 7. Nor did we find Walker's testimony to be the

"linchpin" that Conley, and the majority, now makes it out to be.

Maj. op. at 16. Because Cox and Brown were describing what

actually happened to them at the fence, as opposed to Walker's

eyewitness account of the events, the testimonies of Cox and Brown

were just as crucial as Walker's. More importantly, the time for

challenging the sufficiency of the evidence is long past. Kyles,

514 U.S. at 434 (determining materiality under Brady is "not a

sufficiency of evidence test").

As Judge Bownes stated in his cogent dissent, in language

familiar to those who have charged juries on a regular basis,

"[C]ircumstantial evidence is just as reliable as testimony and at

times, more reliable because it does not depend on the memory or

judgment of what a witness saw and remembered and it is not subject

to the biases and prejudices that are part of all human beings."

Conley V, 323 F.3d at 18 (Bownes, J., dissenting). I suspect that

this new "Conley rule" of circumstantial evidence will be a

bounteous field for the myriad of defendants who up to now have

-42-
been charged and successfully convicted as a matter of course on

such evidence.

For the reasons stated, I respectfully dissent.

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