FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-30170
Plaintiff-Appellee, D.C. No.
v. 3:07-cr-00055-
VICTOR H. KOHRING, JWS-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the District of Alaska
John W. Sedwick, District Judge, Presiding
Argued October 6, 2010
Submitted March 11, 2011
Seattle, Washington
Filed March 11, 2011
Before: Betty B. Fletcher, A. Wallace Tashima and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge Thomas;
Partial Concurrence and Partial Dissent by
Judge B. Fletcher
3433
3438 UNITED STATES v. KOHRING
COUNSEL
Michael Filipovic; Assistant Federal Public Defender; Seattle,
Washington, for the appellant.
Kevin R. Gingras; United States Department of Justice;
Washington, D.C., for the appellee.
OPINION
THOMAS, Circuit Judge:
Victor Kohring filed this appeal after being convicted of
three public corruption charges. While the case was pending
UNITED STATES v. KOHRING 3439
on appeal, we remanded it to the district court for the limited
purpose of determining whether the government had breached
its disclosure obligations under Brady v. Maryland, 373 U.S.
83 (1963), and Giglio v. United States, 405 U.S. 150 (1972),
and, if so, the remedy to which Kohring is entitled. The dis-
trict court determined the prosecution had failed to disclose
favorable evidence to Kohring, but it concluded the govern-
ment did not violate Brady/Giglio because the newly-
disclosed information is not material. We agree with the dis-
trict court that the prosecution suppressed favorable material,
but we respectfully disagree with its conclusion as to materi-
ality. We conclude that the newly-disclosed information,
when viewed collectively, is material and that the prosecution
violated Brady/Giglio. We vacate Kohring’s conviction and
remand to the district court for a new trial.
I
Victor Kohring, a former member of the Alaska State
House of Representatives, was convicted in federal district
court on three counts of public corruption felonies: conspiracy
to commit extortion and attempted extortion under color of
official right and bribery under 18 U.S.C. § 371 (Count 1),
attempted interference with commerce by extortion induced
under color of official right in violation of 18 U.S.C.
§ 1951(a) (Count 3), and bribery concerning programs receiv-
ing federal funds in violation of 18 U.S.C. § 666(a)(1)(B)
(Count 4). Kohring was acquitted of Count 2—interference
with commerce by extortion induced under color of official
right in violation of 18 U.S.C. § 1951(a).
Kohring was charged after a federal investigation suggested
he had accepted several cash payments and other benefits
from Bill Allen in exchange for various legislative acts bene-
fitting VECO Corporation, Allen’s oil field services company
that had interests in the construction of a natural gas pipeline
in Alaska. The evidence tended to show a lengthy, ongoing
relationship between Allen and Kohring, but most of the evi-
3440 UNITED STATES v. KOHRING
dence presented at trial related to transactions in 2006, during
or near in time to Alaska’s state legislative session in Juneau.
Many of these transactions were documented in surreptitious
audio and video recordings.
A
The government’s case against Kohring consisted primarily
of (1) recorded conversations between Kohring, Allen, and
Rick Smith, another VECO executive; (2) testimony of Allen
and Smith, who both reached plea agreements in exchange for
their cooperation; and (3) the testimony of an FBI agent con-
cerning statements Kohring made when his office was
searched.
In a February 21, 2006, recorded telephone conversation
between Smith and Kohring, the two discussed how the
recently introduced Petroleum Production Tax bill would fur-
ther VECO’s interest in the development of a natural gas
pipeline. The bill, while helpful to VECO, was contrary to
Kohring’s anti-tax philosophy. The two agreed to meet with
Allen over dinner at the Island Pub restaurant on February 23,
2006, presumably to discuss matters further. A recorded con-
versation from March 4, 2006, between Allen and Smith, sug-
gested that Allen had paid Kohring $1,000 at the Island Pub
dinner.
A surreptitious video recording from March 30, 2006, cap-
tured a meeting between Kohring, Allen, and Smith in “Suite
604,” a room in a local hotel that VECO rented during legisla-
tive sessions. The video recording captured three transactions
—(1) Kohring asking Allen for help with a $17,000 credit
card debt, (2) Allen giving Kohring money to “put in Easter
eggs for his daughter,” and (3) Allen paying Kohring money
“for his daughter’s Girl Scout uniform.”
Kohring began that meeting by asking Allen “how [Kohr-
ing] could deal with” his $17,000 credit card debt. Kohring
UNITED STATES v. KOHRING 3441
explained that he accumulated the debt on account of medical
bills and had been unable to pay it off with only his legislative
salary. He told Allen and Smith he had “a situation . . . it’s
a financial matter” that he thought “potentially, could hurt
[him] politically” and “[would] be a public record.” He asked
Allen and Smith if they “would . . . consider helping [him]
and suggest some options to [him] as to what could be done.”
Allen did not give Kohring money at that time, but he assured
Kohring that he would see what he could do. Kohring
responded, “I wanna do everything . . . completely above
board, of course.” Indeed, he told Allen and Smith that he
would pose “hypothetical questions” regarding any assistance
to the ethics committee advisor for the Legislature. Allen
responded, “I don’t know if that’s real smart . . . . I wouldn’t
even say to anybody that you’re in a bind.” Kohring
demurred. At the end of their meeting, Kohring asked, “What
can I do at this point to help you guys? Any—anything? . . .
Just keep lobbying my colleagues for a governor’s, ah, plan,
right?”
At the same Suite 604 meeting, Allen gave Kohring money
ostensibly (1) to put in his daughter’s Easter eggs and (2) for
his daughter’s Girl Scout uniform. The video recording shows
Allen asking Kohring when he was taking off for the Easter
holiday and then telling Kohring how he used to put money
in Easter eggs for children to find. Allen then reached into his
wallet for cash to give to Kohring and asked Smith, “Have
you got any hundreds? . . . [G]ive me a hundred.” Kohring
then told Allen the $50 he sent his daughter for her Girl Scout
uniform “was a little short” and that “[s]he’ll need about a
hundred.” Allen handed Kohring more cash. The video
recording did not capture the amount of money transacted.
Kohring testified at trial that he received only “around $100”
at the meeting. Allen, though, testified he paid Kohring
between $700-$1,100 at the meeting. Smith said Kohring
received as much as $1,000, but he could only approximate
because he did not know for sure how much was given.
3442 UNITED STATES v. KOHRING
The government also introduced evidence that on June 8,
2006—the final day of the special legislative session for pass-
ing the Petroleum Production Tax—Allen called Kohring to
arrange a meeting at a local McDonald’s restaurant. Allen tes-
tified at trial that he met Kohring at the restaurant, they
walked back to Suite 604, and, while they were outside the
hotel, Allen gave Kohring $600-$700. The government tied
this testimony to another Suite 604 recording where Kohring
told Allen he would have left town to prevent a vote on the
Pipeline Production Tax if Allen had wanted him to do so.
B
At trial, the district court instructed the jury on the elements
of each count and the time frames alleged in the government’s
Superceding Indictment. But neither the instructions nor the
general verdict forms made specific reference to any of the
acts alleged or connected specific acts to the individual
counts. Kohring was convicted on conspiracy to commit
extortion (Counts 1), attempted extortion (Count 3), and brib-
ery (Count 4) but acquitted of extortion (Count 2). No special
interrogatories were provided to the jury as part of the verdict
form, and the trial court denied Kohring’s request to interview
the jury.
Kohring initially appealed his convictions on grounds not
relevant here. Meanwhile, essentially the same prosecution
team that was prosecuting Kohring was also prosecuting Sen-
ator Ted Stevens in Washington, D.C., on public corruption
charges. See United States v. Stevens, Criminal Case No. 08-
231 (D. D.C.). The government prosecuted Senator Stevens
because he failed to disclose gifts he had received from Allen,
as required by the Ethics in Government Act, see 5 U.S.C.
App’x 4 §§ 101-505. Senator Stevens was convicted on sev-
eral counts. After his conviction, though, it became apparent
that the prosecution team had failed to provide Senator Ste-
vens’ with favorable discovery pertaining to a key witness—
Bill Allen. A new group of government lawyers reviewed the
UNITED STATES v. KOHRING 3443
matter, and they moved to dismiss all charges against Senator
Stevens with prejudice, based on the undisclosed
Brady/Giglio material.
After Senator Stevens’ charges were dismissed, Kohring
moved us to order the government to disclose, under
Brady/Giglio, all evidence “favorable to the accused.” Brady,
373 U.S. at 87. The government then moved us to remand the
matter to the district court for further proceedings under
Brady/Giglio. We ordered Kohring released pending appeal
and remanded the matter to the district court for the limited
purpose of determining whether the government had breached
its obligation of full disclosure under Brady/Giglio and, if so,
whether Kohring was prejudiced and entitled to a remedy.
C
On remand, the government disclosed, for the first time,
several thousand pages of documents, including “FBI 302
reports,” undated and dated handwritten notes from interviews
with Allen and Smith, e-mails, various memoranda, and
police reports.
After receiving the material, Kohring moved the district
court to dismiss the Superceding Indictment or, alternatively,
order a new trial. Kohring alleged Brady/Giglio violations,
based on the prosecution’s failure to disclose the information,
and violations of Napue v. Illinois, 360 U.S. 264 (1959),
based on the prosecution’s purported solicitation of false testi-
mony from Allen and Smith. Specifically, Kohring claimed
the newly-disclosed information included: (1) evidence that
Allen had been or was still being investigated for sexual mis-
conduct with minors, (2) evidence that cast doubt on Allen’s
memory and the amount of money paid to Kohring, (3) evi-
dence that the payments were made out of friendship and pity
rather than a corrupt quid-pro-quo relationship, (4) evidence
of inconsistent statements made by Smith, as well as a ques-
tionable relationship he had with an investigating FBI agent,
3444 UNITED STATES v. KOHRING
and (6) evidence that a government witness thought Kohring
was not corrupt.
The district court denied Kohring’s motion for dismissal or
a new trial, but it observed the material was favorable to
Kohring and, indeed, had been suppressed. The district court
nonetheless concluded the suppression did not amount to a
Brady/Giglio violation because the suppression did not preju-
dice Kohring. The court reached this conclusion by reasoning
that the newly-disclosed information did not cast any doubt
on the evidence of Kohring’s alleged $17,000 solicitation in
the hotel room, which the court assumed supported the con-
victions on conspiracy to commit extortion (Counts 1),
attempted extortion (Count 3), and bribery (Count 4). Thus,
the withheld evidence, which tended to cast doubt on the
remaining payments was immaterial. The district court noted
in passing, though, that if Kohring had been convicted of
extortion (Count 2)—which was charged on the basis of pay-
ments other than the $17,000 solicitation—then the newly-
disclosed information would have undermined confidence in
the guilty verdict.
Kohring also moved the district court for an evidentiary
hearing on the newly-disclosed information, but the district
court denied that motion, as well.
On appeal, Kohring challenges the district court’s denial of
his motion to dismiss the Superceding Indictment or, alterna-
tively, for a new trial or evidentiary hearing. We have juris-
diction under 28 U.S.C. § 1291. We review de novo a district
court’s Brady/Giglio determinations and all other questions of
law. United States v. Stever, 603 F.3d 747, 752 (9th Cir.
2010); Jackson v. Brown, 513 F.3d 1057, 1069 (9th Cir.
2008).
II
There is no doubt, as the district court properly held, that
the prosecution withheld and suppressed information that was
UNITED STATES v. KOHRING 3445
favorable to the defense. Because Kohring was prejudiced by
the suppression, we must vacate Kohring’s conviction and
remand the case for a new trial.
[1] In Brady, the Supreme Court held “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. In Giglio, the
Supreme Court extended this principle to include evidence
that impeaches a witness’s credibility. 405 U.S. at 154.
[2] There are three elements of a Brady/Giglio violation:
“(1) the evidence at issue must be favorable to the accused,
either because it is exculpatory, or because it is impeaching;
(2) that evidence must have been suppressed by the State,
either willfully or inadvertently; and (3) prejudice must have
ensued.” United States v. Williams, 547 F.3d 1187, 1202 (9th
Cir. 2008) (quoting Strickler v. Greene, 527 U.S. 263, 281-82
(1999) (internal quotation marks omitted)).
[3] Evidence is prejudicial or material1 “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.” United States v. Bagley, 473 U.S. 667, 682 (1985).
There is a “reasonable probability” of prejudice when sup-
pression of evidence “undermines confidence in the outcome
of the trial.” Kyles v. Whitley, 514 U.S. 419, 434 (1995) (cit-
ing Bagley, 473 U.S. at 678). But a “reasonable probability”
may be found “even where the remaining evidence would
have been sufficient to convict the defendant.” Jackson, 513
F.3d at 1071 (citing Strickler, 527 U.S. at 290).
[4] Suppressed evidence is considered “collectively, not
item by item.” Kyles, 514 U.S. at 436. If a reviewing court
1
For the purpose of Brady/Giglio, “material” and “prejudicial” have the
same meaning. Been v. Lambert, 283 F.3d 1040, 1053 (9th Cir. 2002).
3446 UNITED STATES v. KOHRING
finds a material Brady/Giglio violation, “there is no need for
further harmless-error review.” Id. at 435. But if suppressed
evidence is “merely cumulative,” then the failure to disclose
is not a violation. Morris v. Ylst, 447 F.3d 735, 741 (9th Cir.
2006).
[5] We disagree with the government’s argument that the
newly-disclosed information is irrelevant. The government
maintains the newly-disclosed information casts no doubt on
the video-recorded evidence of the alleged $17,000 solicita-
tion and that the alleged solicitation alone was sufficient to
support convictions on all three counts. Contrary to the gov-
ernment’s argument, there is no way to determine whether the
jury based all three convictions on the alleged $17,000 solici-
tation. The jury was given only a general verdict form.2 The
jury was not instructed as to the specific alleged acts that sup-
ported each count. Nor was it provided with a copy of the
Superceding Indictment, which connected specific allegetions
to each count. The jury was instructed as to the time frame for
each count,3 but the government alleged that multiple acts
occurred during those time frames, not just the alleged
2
We have encountered similar problems with general verdicts. See
United States v. Manarite, 44 F.3d 1407, 1413-14 (9th Cir. 1995). There,
we reversed a conspiracy conviction after reversing a conviction on mail
and wire fraud, which, along with other substantive charges, were alleged
objects of the conspiracy. Id. Because the jury used only a general verdict,
we could not determine what object the conspiracy conviction was based
on. Id. We reversed the conspiracy conviction because it was possible that
the conviction was based solely on the mail and wire fraud, which we had
reversed. Id. We reasoned, “[I]f the judge instructs the jury that it need
find only one of the multiple objects, and the reviewing court holds any
of the supporting counts legally insufficient, the conspiracy count also
fails.” Id. at 1413 (citing United States v. DeLuca, 692 F.2d 1277, 1281
(9th Cir. 1982)). Otherwise, the defendant might have been convicted of
conspiring to commit an act that was not a crime.
3
The time frames for the counts were: conspiracy to commit extortion
(Count 1)—January 2002 to August 2006; extortion (Count 2) —January
2006 to August 2006; attempted extortion—March 2006 to August 2006;
and bribery—January 2006 to August 2006.
UNITED STATES v. KOHRING 3447
$17,000 solicitation. And, while the prosecutor referenced the
alleged solicitation during closing arguments in connection
with the attempted extortion count (Count 3) that alone does
not imply the jury necessarily based its convictions on the
alleged solicitation. In short, the newly-disclosed information
is not irrelevant because it speaks to the acts that the jury
might have relied on in reaching its verdicts (including the
alleged $17,000 solicitation).
Beyond being merely relevant to the acts, Kohring alleges
the newly-disclosed information is either exculpatory or could
have been used to impeach government witnesses. Specifi-
cally, he claims the newly-disclosed information includes: (1)
evidence that Allen had been or was still being investigated
for sexual misconduct with minors, (2) evidence that casts
doubt on Allen’s memory and the amount of money paid to
Kohring, (3) evidence that the payments were made out of
friendship and pity rather than a corrupt quid-pro-quo rela-
tionship, (4) evidence of inconsistent statements made by
Smith, as well as a questionable relationship he had with an
investigating FBI agent, and (6) evidence that a government
witness thought Kohring was not corrupt.
A
Brady/Giglio claims are evaluated collectively, but we
“must first evaluate the tendency and force of each item of
suppressed evidence and then evaluate its cumulative effect at
the end of the discussion.” Barker v. Flemming, 423 F.3d
1085, 1094 (9th Cir. 2005) (quoting Kyles, 514 U.S. at 436).
1
[6] The newly-disclosed information contains Anchorage
Police Department (“ADP”) files alleging that Allen sexually
exploited minors and attempted to conceal that behavior by
soliciting perjury from the minors and arranging for one of the
minors to make herself unavailable to testify against Allen.
3448 UNITED STATES v. KOHRING
These documents confirm the existence of an extensive inves-
tigation (dating back to at least 2004) into Allen’s alleged sex-
ual misconduct. The documents further establish that the
prosecution was aware of the ADP investigation before Kohr-
ing’s trial. In fact, one of the Assistant U.S. Attorneys prose-
cuting this case and a FBI agent were present at interviews of
one of the victims by the Anchorage Police Department. But
Kohring was not made aware of the investigation or any of
the allegations until he received the newly-disclosed informa-
tion on remand.
The district court addressed this information by referencing
its discussion of the same evidence in United States v. Kott,
2010 WL 148447 (D. Alaska Jan. 13, 2010), a similar
political-corruption case where Allen was also a key witness.
There (and, by implication, here), the district court concluded
the evidence was favorable and suppressed by the govern-
ment, satisfying the first two Brady/Giglio elements. See id.
at *9. The district court concluded the evidence was not mate-
rial, though, because it would have been excluded under 403
of the Federal Rules of Evidence, and Kohring could not have
otherwise employed it to attack Allen’s “character for truth-
fulness” under Rule 608, since it was extrinsic evidence. See
id.
To be material under Brady/Giglio, “undisclosed informa-
tion or evidence acquired through that information must be
admissible,” United States v. Kennedy, 890 F.2d 1056, 1059
(9th Cir. 1989), or capable of being used “to impeach a gov-
ernment witness,” United States v. Price, 566 F.3d 900,
911-12 (9th Cir. 2009). We review for abuse of discretion a
district court’s determination that information would be inad-
missible or could not be used for impeachment. Id. at 912 (cit-
ing United States v. Scott, 74 F.3d 175, 177 (9th Cir. 1996)).
The district court abused its discretion when it concluded
the newly-disclosed information concerning Allen’s alleged
sexual misconduct would be inadmissible or could not be
UNITED STATES v. KOHRING 3449
used for impeachment. First, Rule 403 does not foreclose
Kohring’s use of the information. Rule 403 provides:
Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues,
or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of
cumulative evidence.
Fed. R. Evid. 403 (emphasis added).
[7] The district court concluded the material would have
been inadmissible under Rule 403 because it would have been
unfairly prejudicial, would have confused the issues, and
would have been needlessly cumulative, because the jury was
already aware that Allen was cooperating with the govern-
ment to avoid corruption charges stemming from his relation-
ship with Kohring, Kott, and others. We disagree.
The evidence was certainly prejudicial, but not unfairly so.
Even if there is some danger of unfair prejudice or confusion
of the issues, that danger does not “substantially outweigh”
the probative value of the information. Evidence that Allen
attempted to suborn perjurious testimony from one of the
minors and attempted to make another unavailable for a trial
would have been highly probative of his “character for truth-
fulness.” See Rule 608(b) (permitting cross-examination on
specific instances of misconduct “if probative of truthfulness
or untruthfulness”). And the district court could have con-
tained the prejudicial effect of the material, as well as any
possible confusion of the issues, by limiting its introduction
to the essential facts necessary to reveal Allen’s character for
truthfulness.
Moreover, the material would not have been needlessly
cumulative. The fact that Allen might have had a motive to
testify against Kohring in order to gain leniency as to his cor-
3450 UNITED STATES v. KOHRING
ruption charges does not mean that evidence of a different
bias or motive would be cumulative. See, e.g., Horton v.
Mayle, 408 F.3d 570, 579 (9th Cir. 2005) (citing Napue, 360
U.S. at 270 (holding that some evidence of bias does not
diminish the value of other evidence describing a different
source of bias)); Banks v. Dretke, 540 U.S. 668, 702-03
(2004) (holding impeachment evidence was not “merely
cumulative” where the withheld evidence was of a different
character than evidence already known to the defense).
Indeed, evidence of Allen’s sexual misconduct with a minor
would have shed light on the magnitude of Allen’s incentive
to cooperate with authorities and would have revealed that he
had much more at stake than was already known to the jury.
Beyond facing serious criminal charges, the newly-disclosed
information shows Allen was very distressed at the prospect
of his alleged sexual misconduct becoming public. In an FBI
interview, Allen said he would “become unglued” if the alle-
gations were published in the media).
[8] Even though the information does not run afoul of Rule
403, the question remains as to whether it would have been
admissible or whether Kohring could have used it to impeach
Allen. We conclude that, at a minimum, Kohring could have
used the information on cross-examination to impeach Allen.
See, e.g., Lindh v. Murphy, 124 F.3d 899 (7th Cir. 1997)
(holding that a defendant was denied his Sixth Amendment
right to cross-examination when he was barred from question-
ing an expert witness about potential bias stemming from
accusations of sexual impropriety with several patients that
resulted in criminal charges and the loss of his medical license
and faculty position).
[9] The Confrontation Clause of the Sixth Amendment
“guarantees the right of an accused in a criminal prosecution
to be confronted with the witnesses against him.” United
States v. Larson, 495 F.3d 1094, 1102 (9th Cir. 2007) (en
banc) (citing Delaware v. Van Arsdall, 475 U.S. 673, 678
(1986) (internal quotations omitted)). That right includes “the
UNITED STATES v. KOHRING 3451
right of effective cross-examination.” Id. (citing Davis v.
Alaska, 415 U.S. 308, 318 (1974)). We have recognized that
“[e]ffective cross-examination is critical to a fair trial because
‘[c]ross-examination is the principal means by which the
believability of a witness and the truth of his testimony are
tested.’ ” Id. (quoting Davis, 415 U.S. at 316). And we, like
the Supreme Court, have “emphasized the policy favoring
expansive witness cross-examination in criminal trials.” Id.
(citing United States v. Lo, 231 F.3d 471, 482 (9th Cir. 2000);
Van Arsdall, 475 U.S. at 678-79; Davis, 415 U.S. at 316).
We observed in Larson that “the exposure of a witness’
motivation in testifying is a proper and important function of
the constitutionally protected right of cross-examination.” Id.
(quoting Davis, 415 U.S. at 316-17). Thus, “jurors [are] enti-
tled to have the benefit of the defense theory before them so
that they [can] make an informed judgment as to the weight
to place on [the Government witness’] testimony.” Id. (quot-
ing Davis, 415 U.S. at 317). We explained in United States v.
Schoneberg:
The constitutional right to cross-examine is
“[s]ubject always to the broad discretion of a trial
judge to preclude repetitive and unduly harassing
interrogation,” but that limitation cannot preclude a
defendant from asking, not only “whether [the wit-
ness] was biased” but also “to make a record from
which to argue why [the witness] might have been
biased.”
396 F.3d 1036, 1042 (9th Cir.2005) (quoting Davis, 415 U.S.
at 318) (footnotes omitted) (alterations in original).
We consider three factors “in determining whether a defen-
dant’s Confrontation Clause right to cross-examine is vio-
lated: (1) [whether] the excluded evidence was relevant; (2)
[whether] there were other legitimate interests outweighing
the defendant’s interest in presenting the evidence; and (3)
3452 UNITED STATES v. KOHRING
[whether] the exclusion of the evidence left the jury with suf-
ficient information to assess the credibility of the witness.” Id.
at 1103 (alterations in original) (citing United States v. Beard-
slee, 197 F.3d 378, 383 (9th Cir. 1999)).
[10] Here, the information related to Allen’s alleged sexual
misconduct was relevant, particularly with respect to his char-
acter for truthfulness. Rule 608 would have expressly permit-
ted Kohring to cross-examine Allen about this specific conduct.4
And, as discussed above, there were no interests outweighing
Kohring’s interest in presenting the evidence. Finally, if the
district court would have prevented Kohring from cross-
examining Allen on the alleged sexual misconduct, the jury
would not have had sufficient information to assess Allen’s
credibility. The alleged misconduct would have added an
entirely new dimension to the jury’s assessment of Allen.
Allen was “the prosecution’s star witness.” Price, 566 F.3d at
914 (quoting Carriger v. Stewart, 132 F.3d 463, 480 (9th Cir.
1997)). As we have previously held, “Impeachment evidence
is especially likely to be material when it impugns the testi-
mony of a witness who is critical to the prosecution’s case.”
Id. (quoting Silva v. Brown, 416 F.3d 980, 987 (9th Cir.
2005)). Indeed, had the evidence of Allen’s past conduct been
disclosed, “there is a reasonable probability that the withheld
evidence would have altered at least one juror’s assessment”
regarding Allen’s testimony against Kohring. See Price, 566
F.3d at 914 (quoting Cone v. Bell, ___ U.S. __, 129 S. Ct.
1769, 1771 (2009)).
4
Even if Kohring would not have been permitted to introduce extrinsic
evidence in the course of cross-examination under Rule 608(b), Kohring
would have still been permitted to ask Allen about the alleged misconduct.
And even if Allen would have denied the allegations, the jury would have
been able to observe his demeanor when he answered the questions, which
might have been telling. See, e.g., Barber v. Page, 390 U.S. 719, 725
(1968); California v. Green, 399 U.S. 149, 157-58 (1970).
UNITED STATES v. KOHRING 3453
2
[11] The newly-disclosed information also illustrates
Allen’s difficulty with remembering key facts, as well as
Allen’s and Smith’s differing (and sometimes changing) rec-
ollections as to how much money they paid Kohring. Setting
aside for a moment the question of the information’s admissi-
bility, the information is exculpatory and has impeachment
value.
For instance, a government attorney’s handwritten notes
from September 1, 2006, read, “Island Pub meeting: bad
recall of mtg.” When Allen was apparently asked about the
alleged McDonald’s payment, handwritten notes from Allen’s
attorney state Allen had a “vague memory” and “didn’t
remember how this fit in.” When asked about the Island Pub
payment, Allen’s attorney’s notes read, “Bill DNR why he
gave VK the $1,000.” Undated notes written by an unknown
author read, “Bill . . . meds affecting cognitive memory.”
These are only a few examples of handwritten notes, both
dated and undated, that tend to show Allen had difficulty
remembering the details of key events.
[12] The newly-disclosed information also illustrates
inconsistent views on how much money was actually paid to
Kohring. At trial, Allen testified he paid Kohring $1,000 at
the Island Pub dinner, between $700-$1,100 in Suite 604 (the
“Easter Egg” & “Girl Scout Uniform” payments), and
$600-$700 outside of McDonald’s. A series of reports and e-
mails reveals uncertainty, though, as to these amounts.
For example, with respect to the Island Pub payment, the
government withheld FBI Form FD-302 interview reports
(“FBI 302 reports”) showing that Allen failed to mention the
Island Pub payment at his first debriefing with the FBI on
August 31, 2006. Allen was interviewed two days later with
his attorney present and initially said he thought “he gave
Kohring $500 cash on about four occasions to help him out,
3454 UNITED STATES v. KOHRING
and gave him $1,000 once when Kohring’s credit cards were
maxed out.” At the same interview, though, Allen “con-
firmed” he gave Kohring $1,000 at the Island Pub. Handwrit-
ten notes by the prosecutor and Allen’s attorney show Allen
was also confused as to who was present at the Island Pub
meeting.
With respect to the Girl Scout uniform and Easter Egg pay-
ments in Suite 604, a newly-disclosed FBI 302 report from
September 1, 2006, reads:
ALLEN thinks during that particular meeting,
SMITH probably gave KOHRING $300-$400 in
cash, and ALLEN probably gave KOHRING $500,
ostensibly to apply towards the purchase of KOHR-
ING’s daughter’s Girl Scout uniforms.
A newly-disclosed IRS memorandum of an interview with
Allen on December 11-12, 2006, reads:
BILL ALLEN recalled giving VIC KOHRING about
$1,000 which BILL ALLEN said was for Vic Kohr-
ing’s daughter’s Girl Scout uniform. BILL ALLEN
also recalled that he had given Vic Kohring $1,000
at the Island Pub in Juneau a month before the meet-
ing in Suite 604.
But an October 3, 2007, e-mail exchanged among the prose-
cution team reveals a stark inconsistency between Allen’s and
Smith’s recollection of how much money was allegedly trans-
acted:
Smith and Allen have different recollections re how
much they provided to VK in Ste 604. BA thinks he
was trying to give VK $1,000 and he asked RS if he
had any hundreds, b/c he may not have enough with
him at the time. BA generally recalls giving two
amounts to VK totaling anywhere b/w $600-$1,000.
UNITED STATES v. KOHRING 3455
He believes he counted out $500 from his wallet and
gave it to VK for the second payment.
RS has somewhat better recall on the issue. He
believes that when BA asked him for money, he only
gave BA $100. Although he’s speculating to a certain
degree, he believes BA may have asked him for
money b/c BA didn’t have any hundreds on him and
the Easter Egg story (which RS had heard BA tell in
the past) involves stuffing $100 in an egg.
As for the second payment, RS recalls BA counting
out 5 bills. RS assumes these were only $20 bills if
BA did not have any hundreds with him. If RS’s
assumptions are right, then VK only received $200
total.
(emphasis added).
Finally, in terms of the alleged McDonald’s payment, two
newly-disclosed FBI 302 reports show that, during his first
two debriefings, Allen failed to mention any payment made
to Kohring at McDonald’s. In particular, during one of the
debriefings, “Allen did not recall giving Kohring cash gifts
any other times during the most recent [2006] legislative ses-
sion” other than the Island Pub payment in February 2006.
Allen’s first mention of the McDonald’s payment came in a
March 16, 2007, interview (memorialized in a newly-
disclosed FBI 302 report), but Allen did not connect that pay-
ment to any specific date, he only said that it took place some-
time during the 2006 legislative session.
[13] This newly-disclosed information is favorable to
Kohring, thus satisfying the first element of Brady/Giglio. See
373 U.S. at 87; Williams, 547 F.3d 1187. The information
tends to cast some doubt on the amounts that were allegedly
paid to Kohring, as well as whether the payments were made
at all. It also shows that Allen had difficulty remembering
3456 UNITED STATES v. KOHRING
details of key events. The second element of Brady/Giglio is
also satisfied because the information was suppressed. Id.;
Williams, 547 F.3d at 1202.
[14] We also conclude that some of the information was
material, satisfying the third element of Brady/Giglio. Id.;
Williams, 547 F.3d at 1202. As discussed above, in order for
the newly-disclosed information to be material under
Brady/Giglio, the information must be either admissible, lead
to information that will be admissible, or capable of being
used for impeachment. Kennedy, 890 F.2d at 1059; Price, 566
F.3d at 911-12. Nevertheless, a prosecutor does not have a
duty to disclose “his or her strategies, legal theories or
impressions of the evidence.” Morris, 447 F.3d at 742. In
other words, the prosecutor does not have a duty under
Brady/Giglio to disclose all opinion work product. “[I]n gen-
eral, a prosecutor’s opinions and mental impressions of the
case are not discoverable under Brady[/Giglio] unless they
contain underlying exculpatory facts.” Id. (emphasis original).
Here, some of the newly-disclosed information is opinion
work product, otherwise inadmissible, or not capable of being
used for impeachment (e.g., some of the undated, unidentified
handwritten notes). Other information, such as the FBI 302
reports would, on the other hand, likely be either admissible
or capable of being used for impeachment. And even some of
the facts contained in the opinion work product should have
been disclosed. Consider, for instance, the October 3, 2007,
e-mail. Certain statements in the e-mail reveal the prosecu-
tor’s “ impressions of the evidence.” Morris, 447 F.3d at 742.
With regard to Smith’s recollection of how much money
Allen gave Kohring in Suite 604, the e-mail reads “RS has
somewhat better recall on the issue.” This is, arguably, the
prosecutor’s impression of Smith’s memory (admittedly, it
could also be a fact). However, the statement that “[Smith]
believes that when BA asked him for money, he only gave
BA $100” is clearly an “underlying exculpatory fact” that
should have been disclosed to Kohring if it was not merely
UNITED STATES v. KOHRING 3457
cumulative. See id. Thus, while the prosecution did not have
a duty to disclose the e-mail itself or the opinion work product
in the e-mail, it did have a duty to disclose the non-cumulative
“underlying exculpatory facts” in the e-mail. See id. The same
can be said with respect to other newly-disclosed information
that is arguably opinion work product (e.g., the attorneys’
handwritten notes).
The newly-disclosed information also has to be more than
“merely cumulative” to be material under Brady/Giglio. Id.
(citing United States v. Morashi, 913 F.2d 724, 732 (9th cir.
1990)). Here, the newly-disclosed information regarding
Allen’s memory problems would have been merely cumula-
tive if presented at trial. At trial, Kohring’s attorney exploited
Allen’s poor memory before the jury in both cross-
examination and closing argument. In cross-examination,
Kohring’s attorney asked about the Island Pub payment, the
Easter egg and Girl Scout uniform payments, and the McDon-
ald’s payment. Allen’s testimony displayed his difficulty with
remembering the specific payments, who witnessed the pay-
ments, and the purpose of the payments. Kohring’s attorney
then took full advantage of Allen’s poor memory and confu-
sion in his closing argument:
Mr. Allen’s demeanor on the stand was rather
pathetic. Now, he has—and I don’t mean to make
fun of it—but he has memory problems, he has a
brain injury. He obviously drinks too much. His
demeanor on the stand—and remember his brain
injury predated any of this that we’re talking about
here—but his demeanor on the stand was completely
self-serving and pathetic.
[15] We have previously held that when defense counsel
sufficiently impeaches a government witness in cross-
examination and closing argument, the defendant cannot later
claim a Brady/Giglio violation on account of additional undis-
closed evidence supporting the impeachment. See Hovey v.
3458 UNITED STATES v. KOHRING
Ayers, 458 F.3d 892, 921 (9th Cir. 2006). In such circum-
stances, the evidence is cumulative because the grounds for
impeachment are “no secret” to the jury. Id. Here, Allen’s
own testimony on cross-examination, along with counsel’s
closing argument, put Allen’s poor memory and confusion
directly before the jury. Further evidence of Allen’s poor
memory and confusion would have only been cumulative and
would probably not have impacted the jury’s verdict.
[16] The same is not true, though, with respect to some of
the information regarding the amount of money allegedly paid
to Kohring. At trial, for instance, Smith confirmed that the
“agreed facts” in his plea agreement stated he and Allen paid
Kohring up to $1,000 in Suite 604 on March 30, 2006. But he
also testified that he could only approximate that amount
because he did not know for sure how much Kohring was
paid. Indeed, the October 3, 2007, e-mail indicates Smith was
not sure as to the precise amount Kohring received. But the
same e-mail also contains what would have inevitably been
valuable impeachment evidence—Smith’s belief that Allen
gave Kohring only $200 or less. This difference could have
potentially been important to the jury, because Kohring testi-
fied at trial that he only received “around $100” in Suite 604
that day and that the payment was a gift to a friend rather than
a bribe. Similarly, the inconsistent payment amounts
described in the FBI 302 reports and the IRS memo could
have also been used as impeachment material.
3
[17] The newly-disclosed information also tends to show
that Allen gave Kohring money partly out of pity and friend-
ship. At trial, Allen testified he paid Kohring partly out of pity
and friendship and partly to secure Kohring’s loyalty and
encourage him to perform certain legislative acts on Allen’s
behalf. A newly-disclosed FBI 302 report shows that Allen
said he paid Kohring, at least partly, because he “felt sorry”
for him and wanted to help him with his “financial problems.”
UNITED STATES v. KOHRING 3459
Handwritten notes from an interview with Allen also show
that Allen said he “gave stuff to VK because [he] is a friend.”
Other notes indicate that Allen said he “NEVER ASKED VIC
TO DO ANYTHING IN EXCH. for cash or [unintelligible]
or some benefit.”
[18] This newly-disclosed information is favorable to
Kohring, and it was suppressed, thus satisfying the first two
elements of Brady/Giglio. Brady, 373 U.S. at 87; Williams,
547 F.3d at 1202. The information is also material and not
“merely cumulative.” See Morris, 447 F.3d at 741. Prior to
trial the prosecution did, in fact, provide Kohring with a letter
stating that Allen had said the payments were partly moti-
vated by pity:
Mr. Allen has advised the government that his moti-
vation in providing these financial benefits to Mr.
Kohring was partly because he felt sorry for Mr.
Kohring regarding his personal financial situation
and partly so that Mr. Kohring would take official
acts on the part of VECO corporation.
Thus, for the purposes of Brady/Giglio, the prosecution met
its obligation of alerting Kohring to Allen’s statement that he
paid Kohring partly out of pity. But the prosecution still had
an obligation to disclose Allen’s admission that he “NEVER
ASKED VIC TO DO ANYTHING IN EXCH. for cash or
[unintelligible] or some benefit.” This statement is not neces-
sarily inconsistent with Allen’s testimony that he paid Kohr-
ing, at least in part, to encourage Kohring to undertake certain
legislative acts. Many lobbyists and other individuals contrib-
ute to political campaigns with the same hope. But what the
statement tends to show is that Allen himself never told or
otherwise expressed to Kohring that the payments were quid-
pro-quo. The statement adds an entirely different dimension
to what Kohring knew before trial. It makes clear that, while
Allen might have given Kohring money, he never told Kohr-
ing he was paying him to curry legislative favors. Had Kohr-
3460 UNITED STATES v. KOHRING
ing known that Allen made this and similar statements, he
could have undoubtedly used it at trial.
4
[19] The newly-disclosed information contains what Kohr-
ing characterizes as two classes of exculpatory or impeach-
ment information regarding Smith. The first includes undated
handwritten notes, which show that Smith believed Kohring
was beholden to Allen on account of campaign contributions
—not payments. The same notes also state that Smith
“[d]oesn’t know what VK thought the cash payments
represented—whether he viewed them as bribes or gifts.” At
trial, Smith testified that Allen’s payments were intended to
keep “Vic on board on political issues.”
[20] This newly-disclosed information is arguably favor-
able and was suppressed. But it is not material. Smith testified
at trial that—from his and Allen’s perspective—the payments
were politically motivated. The thrust of the newly-disclosed
information is that Smith had no knowledge of what Kohring
thought of the payments—whether he thought they were gifts
or politically motivated. The undated notes are not likely
admissible, and Kohring has not adequately shown how they
could have been used to impeach Smith.
[21] The second class of information related to Smith con-
cerns his relationship with a FBI special agent working on the
case. According to material that Kohring viewed after trial
(but did not obtain), Smith invited the agent and her husband
to a golf tournament and then paid their tournament fees. The
agent and her husband attended the tournament but did not
reimburse Smith for the $500 entry fee. The agent said she
“went golfing with Smith because she was extremely con-
cerned about his mental condition . . . . Smith was having sig-
nificant psychological troubles because of the pending federal
criminal case against him [and she] was concerned Smith was
possibly even suicidal . . . .”
UNITED STATES v. KOHRING 3461
Kohring argues he could have used this information in two
ways at trial. First, he claims he could have “turned the free
golf tournament . . . against the government by arguing that
it showed bias and Smith’s effort to curry favor with the lead
case agent . . . .” Second, he argues that evidence of Smith’s
alleged mental instability demonstrated his susceptibility to
coaching by Allen and others, and it “explain[ed] Smith’s
willingness to bend his story to fit the government’s theory.”
[22] This newly-disclosed information is not material
under Brady/Giglio. With respect to Kohring’s claim that it
shows bias on the part of the government, the jury was well-
aware that Smith was working closely with the government
on the case, and evidence of the golf outing would have prob-
ably been “merely cumulative.” See Morris, 447 F.3d at 742.
The government is generally under an obligation to disclose
impeachment evidence that bears on the credibility of a wit-
ness, including evidence of poor mental and emotional health
that may be provable on cross-examination. United States v.
Pryce, 938 F.2d 1343, 1345-46 (D.C. Cir. 1991); accord
United States v. Smith, 77 F.3d 511, 516 (D.C. Cir. 1996)
(“Mental records can be material as impeachment evidence
because they can cast doubt on the accuracy of a witness’ tes-
timony.”). Pryce and Smith, though, are distinguishable from
the facts here in an important way. In each of those cases, the
withheld evidence was psychiatric reports and medical
records, respectively. Pryce, 938 F.2d at 1345-46; Smith, 77
F.3d at 516. Here, the information concerning Smith’s alleged
mental instability comes from the FBI special agent’s infor-
mal assessment. Her assessment is a far cry from the profes-
sional psychiatric reports and medical records in Pryce and
Smith.
[23] Second, Kohring has not alleged that Smith suffered
from mental instability at the time of the alleged payments.
The First Circuit addressed this issue and concluded: “[W]e
are aware of no court to have found relevant an informally
3462 UNITED STATES v. KOHRING
diagnosed depression or personality defect. Rather, federal
courts appear to have found mental instability relevant to
credibility only where, during the time-frame of the events
testified to, the witness exhibited a pronounced disposition to
lie or hallucinate, or suffered from a severe illness . . . that
dramatically impaired her ability to perceive and tell the
truth.” United States v. Butt, 955 F.2d 77, 82-83 (1st Cir.
1992) (emphasis added); accord United States v. Antone, 981
F.2d 1059, 1061 (9th Cir. 1992); see also United States v.
Sasso, 59 F.3d 341, 347-48 (2d Cir. 1995) (“Evidence of a
witness’s psychological history may be admissible when it
goes to her credibility. In assessing the probative value of
such evidence, the court should consider such factors as the
nature of the psychological problem, . . . the temporal recency
or remoteness of the history . . . and whether the witness suf-
fered from the problem at the time of the events to which she
is to testify, so that it may have affected her ability to perceive
or to recall events or to testify accurately.”)
5
[24] Finally, the newly-disclosed information includes a
letter from one prosecutor to another, dated June 19, 2009,
stating that “while it has not been memorialized in any inter-
view reports or notes, it appears that at some point and on at
least one occasion, [a former employee of the Alaska Attor-
ney General’s office] said that he did not think Mr. Kohring
was dirty or corrupt, and [he] had the overall impression that
if Mr. Kohring were corrupt, he may not realize it.” The for-
mer employee, “was the source that developed investigative
evidence related to Smith, Allen, and Tom Anderson.” But the
newly-disclosed information suggests the former employee
made this statement on February 15, 2005, more than a year
before most of the payments at issue here.
Kohring claims the statement would have been admissible
exculpatory evidence under Fed. R. Evid. 404(a)(1) and
405(a). Presumably, Kohring’s attorney could have asked the
UNITED STATES v. KOHRING 3463
former employee on cross-examination whether he thought
Kohring was corrupt. Rule 404(a)(1) and 405(a) allow the
defendant to present character evidence, in the form of opin-
ion testimony, “for the purpose of proving action in confor-
mity therewith on a particular occasion.”
[25] The government, though, argues the statement would
have been inadmissible under Rule 704(b) because it speaks
to the “ultimate issue”—i.e., whether Kohring was corrupt.
The government’s reading of the rule, though, is misplaced.
Rule 704(b) applies only to expert witnesses. See, e.g., United
States v. Hofus, 598 F.3d 1171, 1179-80 (9th Cir. 2010). The
former employee did not testify as an expert. And Rule 704(a)
clearly states that “[e]xcept as provided in subdivision (b),
testimony in the form of an opinion or inference otherwise
admissible is not objectionable because it embraces an ulti-
mate issue to be decided by the trier of fact.” In other words,
the Federal Rules of Evidence specifically permit the type of
opinion testimony that the former employee might have
offered. See, e.g., United States v. Yarbrough, 527 F.3d 1092,
1101-02 (10th Cir. 2008) (permitting opinion testimony rele-
vant to intent “where the sole issue before the jury is whether
a defendant undertook his undisputed acts with a prohibited
state of mind.”).
[26] That the evidence is likely admissible does not neces-
sarily imply it is material. The newly-disclosed information
tends to show the statement was made on February 15, 2005
—more than a year before the alleged payments and solicita-
tion discussed here. As a result, the former employee’s opin-
ion in 2005 probably would have had little relevance to how
the jury perceived Kohring’s mental state at the time of the
misconduct.
B
After “first evaluat[ing] the tendency and force of each
item of suppressed evidence,” we must “then evaluate its
3464 UNITED STATES v. KOHRING
cumulative effect at the end of the discussion.” Barker, 423
F.3d at 1094 (quoting Kyles, 514 U.S. at 436). Having
reviewed the specific undisclosed evidence, we turn to a col-
lective analysis of the Brady/Giglio claims. Jackson, 513 F.3d
at 1076. In doing so, we are mindful that a jury’s verdict
should be overturned as a result of the prosecution’s suppres-
sion of favorable evidence only if that evidence is material.
Id. at 1076. Suppressed 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.” Bagley, 473 U.S. at 682. There is a “reasonable
probability” of prejudice when suppression of evidence “un-
dermines confidence in the outcome of the trial.” Kyles, 514
U.S. at 434 (citing Bagley, 473 U.S. at 678). A “reasonable
probability” may be found “even where the remaining evi-
dence would have been sufficient to convict the defendant.”
Jackson, 513 F.3d at 1071 (citing Strickler, 527 U.S. at 290).
[27] The prosecution’s suppression of evidence in this case
“undermines confidence in the outcome of the trial.” Kyles,
514 U.S. at 434. The newly-disclosed information includes
several thousand pages of relevant material. We are cognizant
of the prosecution’s explanation that it disclosed the volumi-
nous material out of an abundance of caution. And we recog-
nize that the prosecution might not have had a duty to disclose
all the information it did. However, a substantial amount of
the material is either admissible on its face, could have been
used as impeachment material, or is likely inadmissible but
memorializes exculpatory facts or impeachment information
that should have been disclosed.
[28] The newly-disclosed information contains several dif-
ferent classes of information that, collectively, give rise to “a
reasonable probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have been
different.” Bagley, 473 U.S. at 682. Had the information been
disclosed to Kohring, for instance, Kohring would have been
able to impeach Allen with evidence of his alleged sexual
UNITED STATES v. KOHRING 3465
misconduct. Contrary to the government’s claim, this evi-
dence would not have been cumulative in light of the jury’s
awareness of the plea agreement Allen had with the govern-
ment. Evidence of the sexual misconduct would have added
an entirely new dimension to Allen’s possible motives for
cooperating with the government. And, specifically, evidence
that Allen attempted to suborn perjury from one of the alleged
victims and attempted to make another unavailable to testify
would have probably had a substantial impact on the jury’s
assessment of Allen’s character for truthfulness.
In terms of the payments made to Kohring, the information
shows stark inconsistencies in how much Allen and Smith
believed they paid Kohring. The October 3, 2007, e-mail
shows that Smith believed Allen only paid up to $200 to
Kohring in Suite 604 on March 30, 2006. This is a far cry
from the $700-$1,100 Allen testified to and is more consistent
with Kohring’s testimony that he received “around $100.”
Even if Kohring was not being paid out of friendship or pity,
the fact that his account of the amount paid to him was poten-
tially consistent with Smith’s account might have made Kohr-
ing more credible in the eyes of the jury. But, because of the
prosecution’s suppression, Kohring did not have the opportu-
nity to cross-examine or impeach Smith as to that account.
[29] Taken together, the newly-disclosed information is
material and, as a result, the prosecution violated
Brady/Giglio.
III
[30] We are left to decide the appropriate remedy. The
government clearly should have disclosed a substantial
amount of the information in question. However, we do not
have sufficient evidence to conclude the prosecution “acted
flagrantly, willfully, and in bad faith.” See United States v.
Chapman, 524 F.3d 1073, 1085 (9th Cir. 2008). As a result,
we do not exercise our supervisory authority by dismissing
3466 UNITED STATES v. KOHRING
the Superceding Indictment. See id. (citing United States v.
Kearns, 5 F.3d 1251, 1255 (9th Cir. 1993) (holding that even
though the government’s conduct “may have been negligent,
or even grossly negligent,” it did not rise to the level of fla-
grant misconduct)). Nor are we able to conclude that the vio-
lations were a result of “outrageous government conduct” that
amounted “to a due process violation,” which would also war-
rant dismissal of the Superceding Indictment. Id. at 1084. We
have previously observed that “the appropriate remedy” for a
Brady/Giglio violation “will usually be a new trial.” Id. at
1086. That is the case here.5
[31] Kohring’s conviction is vacated, and this matter is
remanded to the district court for a new trial. We need not,
and do not, reach any other issue urged by the parties on
appeal.
5
Another reason advanced by the partial dissent for the exercise of our
supervisory authority to dismiss this indictment is “the prosecution’s unre-
pentant attitude.” In fairness, we note that the government took corrective
action at the Public Integrity Section, which was primarily responsible for
this prosecution, and installed a completely new prosecution team. It was
the government, through this new team, that first suggested to us that the
case should be remanded to the district court for it to examine whether
there were any Brady/Giglio violations. It then produced the voluminous
record that is subject of this appeal. The team also withdrew its opposition
to Kohring’s request to be released on bail pending resolution of the
remand. The partial dissent also suggests that dismissal is justified “to
release Kohring from further anguish and uncertainty.” This rationale has
yet to be recognized as an independent basis on which to exercise our
supervisory power to dismiss an indictment, and we decline to do so here.
In addition, we are also cognizant of the detailed and careful analysis by
a highly respected presiding trial judge that there was more than sufficient
evidence to support the verdict, and that he was unpersuaded that the
result would be different even with introduction of the new information.
We are also mindful that Kohring was acting in a position of public trust
when the alleged acts were committed. Under the circumstances, despite
the powerful views of our friend and esteemed colleague, we conclude that
the exercise of supervisory power to dismiss the indictment would be
inappropriate in this case. Rather, the proper course is to place the case,
once again, in the hands of a jury, fully apprised of all the relevant infor-
mation.
UNITED STATES v. KOHRING 3467
VACATED and REMANDED.
B. FLETCHER, Circuit Judge, concurring in part and dissent-
ing in part:
I concur in Parts I and II of the majority’s opinion, which
unequivocally establish that the prosecution withheld and sup-
pressed material that was favorable to the defense, in violation
of Brady and Giglio, and that these suppressions undeniably
prejudiced Kohring. I respectfully dissent, however, from Part
III. Because this case exemplifies “flagrant prosecutorial mis-
conduct,” United States v. Chapman, 524 F.3d 1073, 1085
(9th Cir. 2008), I would have this court exercise its supervi-
sory authority to dismiss the Superceding Indictment with
prejudice.
“A court may dismiss an indictment under its supervisory
powers only when the defendant suffers ‘substantial preju-
dice’ and where ‘no lesser remedial action is available.’ ” Id.
at 1087 (internal citations omitted). Both conditions are satis-
fied here. The majority opinion clearly establishes the sub-
stantial prejudice Kohring has suffered as a result of the
prosecution’s misconduct in this case. And, as discussed
below, the prosecution’s unrepentant attitude indicates that no
lesser remedial action will be effective.
A court may exercise its supervisory power “to implement
a remedy for the violation of a recognized statutory or consti-
tutional right; to preserve judicial integrity by ensuring that a
conviction rests on appropriate considerations validly before
a jury; and to deter future illegal conduct.” United States v.
Simpson, 927 F.2d 1088, 1090 (9th Cir. 1991), abrogated on
other grounds as recognized by United States v. W.R. Grace,
526 F.3d 499, 511 n.9 (9th Cir. 2008). Each of these consider-
ations is relevant in this case.
3468 UNITED STATES v. KOHRING
First, as detailed in the majority’s opinion, the prosecu-
tion’s Brady/Giglio offenses violated Kohring’s due process
right to a fair trial. See Chapman, 524 F.3d at 1086 (observing
that Brady violations “are just like other constitutional viola-
tions” and may justify the dismissal of an indictment “when
the prosecution’s actions rise . . . to the level of flagrant pro-
secutorial misconduct”). Furthermore, the prosecution’s mis-
conduct is an affront to the integrity of our system of justice.
The prosecution failed to disclose thousands of pages of
material documents — including FBI reports, memoranda,
and police reports — until after Kohring’s conviction. Even
then, the prosecution failed to fulfill its disclosure obligations,
turning over the previously undisclosed documents only after
the defense filed a Brady motion.
I disagree with the majority’s conclusion that the prosecu-
tion’s conduct does not amount to flagrant, willful bad-faith
misbehavior. See Maj. Op. at 3465. Our court has “never sug-
gested . . . that ‘flagrant misbehavior’ does not embrace reck-
less disregard for the prosecution’s constitutional
obligations.” Chapman, 524 F.3d at 1085. Here, the record is
replete with such reckless disregard. To cite just two exam-
ples: The late-disclosed information establishes that the prose-
cution was aware of the Anchorage Police Department’s
investigation into Allen’s sexual misconduct, long before
Kohring’s trial began. It also indicates that Allen and Smith
had wildly differing recollections as to how much money they
allegedly gave to Kohring. This information undermines the
prosecution’s star witness and goes to the heart of the charges
brought against Kohring. The prosecution’s failure to timely
disclose this information amounts to a reckless disregard for
its constitutional obligations under Brady/Giglio.
Despite these egregious violations of basic prosecutorial
responsibilities, the prosecution insists that Kohring’s trial
was justly conducted and his conviction fairly obtained. The
prosecution’s refusal to accept responsibility for its miscon-
duct is deeply troubling and indicates that a stronger remedy
UNITED STATES v. KOHRING 3469
is necessary to impress upon it the reprehensible nature of its
acts and omissions. See Chapman, 524 F.3d at 1087 (“[W]e
[have] made clear that in determining the proper remedy for
prosecutorial misconduct, we must consider the government’s
willfulness in committing the misconduct and its willingness
to own up to it.” (quoting United States v. Kojayan, 8 F.3d
1315, 1318 (9th Cir. 1993) (punctuation omitted))). In this
case, dismissal of the Superceding Indictment is justified not
only as a deterrent but to release Kohring from further
anguish and uncertainty.
I understand, as noted by the majority, that the government
undertook certain after-the-fact amends, such as corrective
action within the Public Integrity Section, installing a new
prosecution team, and withdrawing its opposition to Kohr-
ing’s request to be released on bail pending resolution of our
remand to the district court. None of these actions, however,
cure what happened to Kohring during his trial. I feel strongly
that, if one looks closely at what is actually at stake in this
case — ensuring a fair trial for Victor Kohring — the govern-
ment has failed to make proper amends. For these reasons, I
would exercise our supervisory authority to dismiss the
Superceding Indictment with prejudice.