Appeal from the United States District Court for the Western District of Pennsylvania (Pittsburgh).
Aldisert, Higginbotham, and Sloviter, Circuit Judges.
In this appeal by the government, brought pursuant to 18 U.S.C. § 3731, we are asked to decide whether the district court abused its discretion in precluding a key government witness from testifying at trial in a criminal case as a sanction for the government's failure to turn over to the defendant certain exculpatory evidence prior to trial. We hold that although the government withheld materially exculpatory evidence, in direct violation of a valid district court order, it was an abuse of discretion for the district court to issue a preclusion order based on a violation of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), because the defendant was not prejudiced by the government's nondisclosure.
This controversy arises out of certain pretrial proceedings in the federal prosecution of John Starusko, a real estate tax assessor of Allegheny County, Pennsylvania, charged by the government with participation in a scheme to extort money in exchange for the lowering of county tax assessments. At a pretrial hearing held on June 3, 1983, the district court, at defendant's request, issued a disclosure order pursuant to Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), directing the government to turn over to the defense all exculpatory material in its possession, including evidence that "could be used by the defendant to impeach the government's witnesses." App. at 23A-24A. It then warned the government that if such material were not disclosed by June 6, 1983 -- a date two weeks in advance of the scheduled date of trial -- it would preclude those witnesses from testifying at trial. The government never objected to this order.
When the district court issued the disclosure order, the prosecutor had in his possession three F.B.I. reports that were based on interviews with Patrick Logan, another property assessor and the alleged mastermind of the tax assessment scheme, who was slated to be the government's key witness at trial. The reports, the relevant portions of which appear in the margin,*fn1 contain inconsistent summaries of statements by Logan as to defendant's knowledge of Logan's involvement in the tax assessment scheme. None of the reports were turned over to defendant by the June 6, 1983 disclosure order deadline. The government made the first and third reports available sometime within the week before trial. The second report, which indicates that defendant had no knowledge of Logan's involvement in the scheme, was never turned over to defendant, but came into defense counsel's possession through a third party a few days prior to trial.
Believing that the second report was exculpatory material that should have been turned over to him pursuant to the district court's disclosure order, defendant filed a motion in limine asking that the government be prohibited from offering Logan's testimony at trial as a sanction for its noncompliance. Notwithstanding the district court's ruling at the time it issued its order that impeachment evidence is Brady material that must be disclosed, the government responded to the motion in limine as follows:
Defendant was not entitled to this information before trial because it is not exculpatory but could be used only to impeach the witness' testimony and thus is subject to disclosure under the Jencks Act, Title 18, United States Code, Section 3500,*fn2 not Brady.
App. at 46A. From his response, it appears that the prosecutor understood both the spirit and the letter of the court's pretrial order, but believing that the F.B.I. report in his possession was not Brady material, he deliberately refused to turn that report over to defendant. After considering both the motion and the response, the court entered an order in which it "exercise[d] its discretion to sanction for failing to comply with the Brady case by precluding the testimony of Patrick Logan at the trial of this case." App. at 51A.*fn3 The preclusion order prompted the government's appeal.
Before us, the government contends that the district court abused its discretion in precluding Logan from testifying at trial. It argues that the court was wrong to base this sanction on the government's failure to turn over Brady material to the defendant prior to trial because: (1) the second F.B.I. report is not Brady material; (2) even if it were, the court had no authority to require its disclosure prior to trial; and (3) that failure did not prejudice the defendant so as to violate Brady.
In Brady v. Maryland, the Supreme Court held that due process forbids a prosecutor from suppressing "evidence favorable to an accused upon request . . . where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87.*fn4 Brady thus requires disclosure by the government of evidence that is both exculpatory and material. United States v. Higgs, 713 F.2d 39, 42 (3d Cir. 1983); United States ex rel. Marzeno v. Gengler, 574 F.2d 730, 735 (3d Cir. 1978). Exculpatory evidence includes material that goes to the heart of the defendant's guilt or innocence as well as that which might well alter the jury's judgment of the credibility of a crucial prosecution witness. Giglio v. United States, 405 U.S. 150, 154, 31 L. Ed. 2d 104, 92 S. Ct. 763 (1972); Higgs, 713 F.2d at 42. Evidence impeaching the testimony of a government witness is exculpatory when the credibility of the witness may be determinative of a criminal defendant's guilt or innocence. Giglio, 405 U.S. at 154; United States v. Gengler, 574 F.2d 730, 735 (3d Cir. 1978). If the exculpatory evidence "creates a reasonable doubt" as to the defendant's culpability, it will be held to be material.*fn5 United States v. Agurs, 427 U.S. 97, 112, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (1976).
We have no doubt that the second F.B.I. report qualifies as Brady material. Patrick Logan, the alleged source of the statements contained in the report, is critical to the government's case. As a key prosecution witness, his credibility may well be determinative of guilt or innocence. Giglio, 405 U.S. at 154; Gengler, 574 F.2d at 735. Thus, evidence that could be used to impeach Logan's credibility, would clearly be exculpatory. A close examination of the ...