by Sam Rutherford

The U.S. Court of Appeals for the Ninth Circuit upheld the U.S. District Court for the District of Eastern Washington’s order excluding a key Government witness’ testimony and imposing monetary sanctions against the Government based on its failure to disclose to the defense evidence material to the witness’ credibility in violation of Brady v. Maryland, 373 U.S. 83 (1963).

Background

On June 8, 2019, on the Yakima Indian Reservation near Yakima, Washington, a chaotic series of event transpired that resulted in five victims—John C., Michelle S., Catherine E., Dennis O., and Tommy H.,—shot to death. The Government charged James Cloud with five counts of murder and related offenses for the deaths.

The trial took place in March 2022. The Government planned to call three witnesses to identify Cloud as the killer. The first two witnesses were not without issues because their inculpatory testimony was obtained through conferred or potential benefits. The first was Cloud’s alleged accomplice and cousin, Donovan, who agreed to testify as part of a plea deal. The second, Cloud’s cellmate, agreed to testify hoping to get his federal drug trafficking sentence reduced.

The third witness, Esmeralda, was by all accounts the Government’s key witness because she was the sole disinterested person to identify Cloud as the killer in two of the five murders. But Esmeralda was not the easiest witness to manage. The Government lost track of her numerous times leading up to trial and eventually had her arrested on a material witness warrant in February 2022. The District Court released Esmerelda from jail after appointing counsel to represent her.

The night before Esmeralda was scheduled to testify, her boyfriend, James S., sent a text message to Troy Ribail, who was the lead FBI agent on the case. James demanded that Ribail assist him in securing the dismissal of criminal charges pending against him in Kittitas County, Washington, in exchange for James ensuring that Esmeralda would testify consistent with the Government’s theory at trial. James specifically said that “she will testify to whatever you need her to if you can make that happen.”

Ribail immediately called Esmeralda, but when she answered, it was clear that James was present and listening to the call on speakerphone. After the call ended, James texted Ribail again stating, “So ju[s]t so I understand correctly y[o]u are no longer going t[o] help with relocation or any kind of protection for my girl and our family correct? S[o] you were just blowing smoke up our asses yesterday?” Ribail did not respond.

Ribail instead contacted one of the Assistant U.S. Attorneys assigned to Cloud’s case, who then called Esmeralda’s attorney to inform him about James’ text messages and to request a meeting with Esmeralda the next day during the morning trial break. The meeting was intended to ensure Esmeralda complied with her subpoena and to ascertain what she intended to say on the witness stand.

Unbeknownst to the Government, Esmeralda’s attorney secured a waiver of her attorney-client privilege just a few hours after receiving this call. Esmeralda’s attorney then called Cloud’s attorney—who he knew personally—to inform him of James’ text messages to Ribail. The next morning, Cloud’s attorney asked the trial prosecutors if they had anything to disclose, but they demurred. Cloud’s attorney immediately informed the District Court what he had learned from Esmeralda’s attorney the previous night and of the trial prosecutors’ failure to disclose those facts.

The District Court held a hearing to ascertain exactly what transpired. Ribail testified first. He admitted to communicating with Esmeralda and James in the weeks leading up to Cloud’s trial but said the conversations were limited to securing her presence and preparing her to testify. Although he gave detailed testimony spanning 43 minutes, Ribail never disclosed that he had made any offers or promises to either Esmeralda or James in exchange for Esmeralda’s cooperation.

Esmeralda testified next. She admitted that James had messaged Ribail and that he did so with her approval. She also revealed that she had conversations with Ribail about the possibility of the Government relocating her and James after she testified. She also expressed their hope that the Government would assist James in resolving his criminal charges. Finally, she said that Ribail had promised her money for moving expenses and that she had provided him with a list of the funds she would need. She had pressured Ribail to put their agreement in writing, but he had refused, claiming there was insufficient time prior to trial. Esmeralda sent Ribail the following text message: “I’m so mad and confused. Idk if ur trying to lose a big case but we need to talk.”

Cloud’s attorney asked Esmeralda whether she was “willing to say whatever they wanted you to say…. That’s what you were willing to do, correct?” Esmeralda responded, “Yeah.” The District Court then followed up with a final question: “You were willing to change your testimony based upon whether or not you got this benefit; is that right?” Esmeralda offered an unequivocal “Yes” in response.

After the hearing, the Government said it would not be calling Esmeralda as a witness, and nevertheless, the District Court ruled that it was excluding her testimony because she was unreliable. The court also ruled that the Government’s “egregious” conduct violated Brady and stated its intent to impose monetary sanctions. The court asked Cloud’s counsel to prepare cost bill detailing the time and expenses spent addressing the Government’s Brady violation. The court ultimately directed the Government to pay the federal public defender’s office $4,844.68 for the time it spent addressing the Brady violation and the clerk’s office $216.00 for the money paid to jurors while they sat idle during the Brady hearing. The Government timely appealed the court’s order.

Meanwhile, Cloud was convicted of four of the five murder charges against him, which were affirmed on appeal in an unpublished, memorandum opinion.

Analysis

The first issue was whether the Court had jurisdiction over the Government’s appeal. Although recognizing that “it is atypical for us to hear an appeal from the Government after it has obtained a conviction,” the Court nonetheless concluded that it had jurisdiction to do so under 28 U.S.C. § 1291 because the District Court’s sanction order satisfied the collateral order doctrine. A District Court order falls within the scope of this doctrine if it (1) conclusively determines the disputed question, (2) resolves an important issue completely separate from the merits of the underlying action, and (3) is effectively unreviewable on appeal from a final judgment. Van Cauwenberghe v. Biard, 486 U.S. 517 (1988).

The Court determined that the District Court’s sanction order satisfied this test because it conclusively determined that the Government violated Brady by not disclosing impeachment evidence related to Esmeralda, which was a critical issue independent of the merits of the underlying criminal case against Cloud. The order was also unreviewable because the jury’s verdict against Cloud “runs to the defendant and reflects only his conviction and sentence.”

Next, the Court addressed whether the Government violated it Brady obligations. Under Brady, “suppression by the prosecution of evidence favorable to an accused … violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady. The nondisclosure of evidence impeaching a key witness “falls within this general rule.” Giglio v. United States, 405 U.S. 150 (1972). The U.S. Supreme Court has instructed that there are “three components” to a Brady 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 [Government], either willfully or inadvertently; and [3] prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263 (1999). The Court concluded that the Government’s actions in this case satisfied the test, and thus, the Government violated its Brady obligations.

Addressing the first Brady component, the Court observed that evidence with any “impeachment value is, by definition, favorable.” Comstock v. Humphries, 786 F.3d 701 (9th Cir. 2015). The evidence at issue here was “classic impeachment evidence” because it showed that Esmeralda was negotiating financial benefits in exchange for her testimony and that her willingness to shape her testimony to “whatever” the Government wanted “squarely put her credibility into doubt,” according to the Court. Evidence that James attempted to bargain with federal agents in exchange for her testimony “did the same thing.” Thus, the Court determined that the District Court correctly concluded that the first Brady component was satisfied.

As to the second component, suppression by the prosecution, the Court first had to determine the correct standard of review applicable to the District Court’s order, i.e., “how much deference must be afforded a district court’s factual findings in the context of a Brady challenge.” United States v. Garcia-Gonzalez, 791 F.3d 1175 (9th Cir. 2015). Joining eight of its sister circuits, the Ninth Circuit concluded that “clear error review applies to a district court’s factual findings in the Brady context.” See United States v. Edwards, 34 F.4th 570 (7th Cir. 2022) (clear error); United States v. Caldwell, 7 F.4th 191 (4th Cir. 2021) (clear error); United States v. Swenson, 894 F.3d 677 (5th Cir. 2018) (deferential review); United States v. Davis, 863 F.3d 894 (D.C. Cir. 2017) (deferential review); United States v. Garcia, 793 F.3d 1194, 1205 (10th Cir. 2015) (clear error); United States v. Madori, 419 F.3d 159 (2d Cir. 2005) (factual findings “entitled to great weight”); United States v. Thornton, 1 F.3d 149 (3d Cir. 1993) (clear error); United States v. Sanchez, 917 F.2d 607 (1st Cir. 1990) (deferential review).

Under this standard of review for mixed questions of law and fact, a District Court’s legal conclusions are reviewed de novo while the factual findings underlying those conclusions are reviewed for clear error. United States v. Rodriguez, 518 F.3d 1072 (9th Cir. 2008) (describing the standard of review for Miranda waivers). This means that appellate courts will defer to factual findings establishing “the existence and content of undisclosed evidence” but will review de novo “all questions of law in the Brady context.” United States v. Oruche, 484 F.3d 590 (D.C. Cir. 2007).

Evidence is “suppressed” under Brady when it is known to the Government but not disclosed to the defense, and the Government’s affirmative duty to disclose does not depend on a request from the accused. Comstock. Furthermore, the Government has an obligation to disclose not only information known to prosecutors but also “anything in the possession, custody or control of any federal agency participating in the same investigation of the defendant.” United States v. Bundy, 968 F.3d 1019 (9th Cir. 2020). Thus, the Court ruled that the record in this case “readily support[ed]” the District Court’s conclusion that the Government suppressed evidence because it “never disclosed to the defense any impeachment evidence about Esmeralda—not any conversations with Ribail that had taken place in the weeks preceding trial about financial and relocation assistance, nor her boyfriend’s text messages.”

The Government attempted to justify its evidentiary suppression based on its belief that Esmeralda was not going to appear to testify pursuant to the subpoena it served on her and that it would then need a material witness warrant to secure her presence at a later dated, at which point, it claimed it would have disclosed the impeachment evidence. The Court rejected the Government’s “would’ve-could’ve proffer” characterization of what it planned to do with the suppressed evidence if Esmeralda had appeared to testify pursuant to the subpoena, noting that the Government’s argument ignored the fact that it had suppressed evidence for several weeks prior to trial that Ribail had been discussing with Esmeralda various financial benefits in exchange for her testimony.

The Government also argued that it was not required to immediately disclose James’ text messages to Ribail because it had not verified that Esmeralda was aware of them. The Court also rejected this argument for several reasons. First, it overlooked the fact that Ribail knew James and Esmeralda were together when he called her immediately after receiving the text messages. Second, it is “not the role of the prosecutor to decide that facially exculpatory evidence need not be turned over because the prosecutor thinks the information is false,” chided the Court. United States v. Alvarez, 86 F.3d 901 (9th Cir. 1996); see also Comstock (“[W]hether evidence is favorable is a question of substance, not degree, and evidence that has any … impeachment value is, by definition, favorable…. Once the prosecutor acquires favorable information, [] if she … fails to communicate it to the defendant, evidence has been suppressed.”).

Next, the Government contended that there was insufficient evidence establishing that it would have disclosed the impeachment evidence too late for Cloud to use it effectively at trial. But nothing in the record suggested that the Government planned to ever reveal the information to the defense, and instead, the record showed that the Government failed to disclose it on the morning of trial when Cloud’s attorney specifically asked whether the trial prosecutors had anything to share. The record also did not show that the prosecutors planned on pushing Esmeralda’s testimony back several days, not calling her as a witness at all, or otherwise notifying the defense of the text messages in time to avoid substantially prejudicing the “preparation” of Cloud’s defense. United States v. Pasha, 797 F.3d 1122 (D.C. Cir. 2015) (holding that prosecutor’s delay in disclosing exculpatory evidence “until the eve of trial” was “inexcusable,” as prosecutors had an obligation to turn the information over to the defense as soon as they learned it). As the Court explained, the “rule is disclosure, not gaming the impact the disclosure might have. Rather than abide by that rule, however, the Government remained silent.”

Finally, the Government argued that it had not acted improperly by failing to disclose Esmeralda’s “wish list” of financial benefits she gave to Ribail because it had decided to not assist her financially after it was forced to secure her appearance with a material witness warrant. But nothing in the record established that these benefits were actually withdrawn and, in fact, showed that James was texting Ribail about them just a few days before trial, the Court stated. And even if they had been withdrawn, the Court noted that the Government was still required to disclose that financial benefits were previously offered. See Phillips v. Ornoski, 673 F.3d 1168 (9th Cir. 2012) (disclosure of plea offer to witness required even though it was not accepted).

In sum, the Court stated that none of the Government’s “post-hoc” justifications for nondisclosure were “well taken” because they were “reminiscent of a child whose hand is caught in the cookie jar.” Thus, the Court ruled that it had “little trouble concluding that the evidence was suppressed” and thereby satisfying the second Brady component.

The Court ruled that the third and final Brady component—materiality or prejudice—also weighed in favor of sanctioning the Government. In the typical Brady claim, the materiality of suppressed evidence is assessed after the defendant has been convicted and is requesting a new trial. In this circumstance, the defendant must show that there is a reasonable probability that the result of the trial would have been different if the suppressed evidence had been disclosed to the defense. Strickler v. Greene, 527 U.S. 263 (1999).

But this test is not helpful in cases like this one “where the suppression is discovered during trial and before a ‘look back’ is possible,” the Court stated. Instead, the Court explained that when the Government’s suppression of evidence favorable to the accused comes to light before or during trial, “the materiality standard is benchmarked against the relative value of the evidence in light of the proceedings to date—not as a retrospective evaluation of how the disclosure may have impacted the outcome of a trial that has not yet concluded.” United States v. Bundy, 968 F.3d 1019 (9th Cir. 2020). This test requires courts to “evaluate the relative value of the withheld evidence ‘on the basis of the indictment, the pretrial proceedings, the opening statements, and the evidence introduced up to that point,’” and to determine what, if any, impact timely disclosure would have had on the prosecution or defense strategy. Id.

The Court concluded that the Government’s nondisclosure in this case easily satisfied this standard. At the time the damning evidence concerning Esmeralda’s credibility came to light, Cloud’s attorney had already made his opening statements to the jury highlighting that the other eyewitnesses had received benefits for their testimony, but the only attack open to him concerning Esmeralda was that she was high on meth during the shootings. “Without knowing what the Government was keeping from him, Cloud could not make the more forceful argument that Esmeralda was trading testimony for benefits and that every witness who was expected to identify Cloud as the shooter stood to benefit from their testimony,” according to the Court. Moreover, “[a]bsent the nick-of-time disclosure by Esmeralda’s attorney to defense counsel, the jury would have heard tainted testimony, and defense counsel’s cross-examination of Esmeralda would not have been informed by the motivation for her testimony.” In other words, the “suppressed evidence was not simply garden-variety impeachment; it was blockbuster evidence” directly undermining the credibility of the government’s key eyewitness.

Thus, the Court held that the District Court did not abuse its discretion by excluding Esmeralda’s testimony and imposing monetary sanctions against the Government because these remedial measures fell within its supervisory authority. See United States v. Chapman, 524 F.3d 1073 (9th Cir. 2008); see also United States v. Woodley, 9 F.3d 774 (9th Cir. 1993) (“Sovereign immunity does not bar a court from imposing monetary sanctions under an exercise of its supervisory powers.”). 

The Government, however, asserted that it should not have been sanctioned for withholding impeachment evidence about a critical witness because the District Court uncovered the misconduct before the witness could testify. “This argument, if taken to its logical extreme, could risk preventing a trial judge from imposing any forward-looking Brady sanction under the rationale that there can be no due process violation unless and until the court permits the government’s concealment of evidence to fatally taint the trial’s result,” the incredulous Court reasoned. In rejecting the Government’s final attempt to avoid accountability, the Court explained that well-settled precedent and common sense authorized the District Court’s remedy as a means of engendering public trust in the judicial system by punishing the violation of basic constitutional rights. See United States v. Olsen, 737 F.3d 625 (9th Cir. 2013).

Conclusion

Accordingly, the Court affirmed the District Court’s order imposing monetary sanctions against the Government. See: United States v. Cloud, 102 F.4th 968 (9th Cir. 2024).

Writer’s note: Although this case involves witness exclusion and monetary sanctions as punishment for the Government’s obvious and flagrant violation of its Brady obligations, it is important to note that this is not the only remedy available to District Courts. As the Ninth Circuit has explained, District Courts have “various options” to address Brady violations discovered before or during trial. United States v. Bundy, 968 F.3d 1019 (9th Cir. 2020). These include limiting the witnesses or evidence offered by the prosecution, imposing monetary sanctions against the Government, and dismissing the case without prejudice, which means the court would have to impanel a new jury and begin the trial again. Id. The District Court may also dismiss a case with prejudice, which prevents the Government from retrying the defendant at all, but this remedy should be avoided unless there is a “‘(1) flagrant misbehavior and (2) substantial prejudice.’” Id. (quoting United States v. Kearns, 5 F.3d 1251 (9th Cir. 1993)).

In Bundy, for example, the Ninth Circuit upheld an order dismissing a case with prejudice because “the government withheld key evidence favorable to the defense until after trial was underway—in clear violation of its duties under Brady—and dismissing without prejudice would allow the government to cure its mistakes, to the detriment of the defendants.” In Cloud’s case, however, the Ninth Circuit determined that the District Court acted properly by “cabin[ing] [its] remedy to the less drastic remedy of witness exclusion and a monetary sanction.” Cloud.

The Bundy case involved the prosecution of several men for obstructing federal law enforcement officials from carrying out lawful court orders, and the Government’s nondisclosures in that case were far more extensive than in Cloud’s case and did not come to light until much farther into the trial; whereas, Cloud’s case involved a five-count murder prosecution and the Government’s Brady violation was discovered on just the second day of trial. These materially distinguishable facts justified the difference in remedies. Defendants should be cognizant of the broad supervisory powers trial judges possess to respond to the prosecution’s nondisclosure of evidence and should fashion arguments in response thereto consistent with the particular facts of their case and in light of controlling authority.

Editor’s note: Anyone interested in the issue of Brady violation challenges prior to conviction is encouraged to read the Court’s full opinion.   

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