FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DAVID G. BRUCE II, AKA David G.

Bruce,

Defendant-Appellant.

No. 19-10289

D.C. No.

1:17-cr-00077-

DAD-BAM-1

OPINION

Appeal from the United States District Court

for the Eastern District of California

Dale A. Drozd, District Judge, Presiding

Argued and Submitted August 14, 2020

San Francisco, California

Filed January 12, 2021

Before: Michael Daly Hawkins and Morgan Christen,

Circuit Judges, and James E. Gritzner,* District Judge.

Opinion by Judge Christen

*

 The Honorable James E. Gritzner, United States District Judge for

the Southern District of Iowa, sitting by designation.
2 UNITED STATES V. BRUCE

SUMMARY**

Criminal Law

The panel affirmed the district court’s orders admitting

identification evidence and denying a motion for new trial in

a case in which David Bruce was convicted of conspiracy,

attempt to possess with intent to distribute heroin or

marijuana, and bribery, arising from Bruce’s involvement in

a drug smuggling scheme at the United States Penitentiary at

Atwater, California, where Bruce worked as a correctional

officer.

The panel held that the district court reasonably

concluded that the use of a Facebook photo during an

identification procedure was not so suggestive that it rendered

the witness’s identification unreliable.

The panel held that the district court did not err by

denying the motion for new trial in which Bruce argued that

the government violated Brady v. Maryland by failing to

produce evidence indicating that Atwater officer Paul Hayes

was a target of an investigation into a very similar smuggling

ring at a different federal prison, that numerous inmate

complaints had been made against Hayes prior to the Bruce

investigation, and that Hayes pressured some inmates to offer

evidence against Bruce. The panel held that the evidence was

exculpatory within the meaning of Brady and at the very least

the government was required to investigate it. Addressing

Brady’s materiality requirement, the panel cited the weight

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. BRUCE 3

and force of the evidence against Bruce, and concluded that

its confidence in the verdict was not undermined by the

government’s failure to disclose the exculpatory evidence.

COUNSEL

Amanda K. Moran (argued) and Janay D. Kinder, Moran Law

Firm, Fresno, California, for Defendant-Appellant.

Vincenza Rabenn (argued), Assistant United States Attorney;

Camil A. Skipper, Appellate Chief; McGregor W. Scott,

United States Attorney; United States Attorney’s Office,

Sacramento, California; for Plaintiff-Appellee.

OPINION

CHRISTEN, Circuit Judge:

David Bruce appeals his convictions for conspiracy,

18 U.S.C. § 371, Attempt to Possess with Intent to Distribute

Heroin or Marijuana, 21 U.S.C. §§ 846, 841(a)(1), and

Bribery: Public Official Accepting a Bribe, 18 U.S.C.

§ 201(b)(2)(C). The charges arose fromBruce’s involvement

in a drug smuggling scheme at the United States Penitentiary

at Atwater, California, where Bruce worked as a correctional

officer. After a jury trial, Bruce was convicted and sentenced

to 78 months in prison.

Bruce raises two issues on appeal. First, he argues the

district court erred by admitting testimony from another

participant in the smuggling scheme who identified Bruce

from a Facebook photo. We conclude the district court did
4 UNITED STATES V. BRUCE

not abuse its discretion by admitting the government’s

identification evidence. Second, Bruce argues he is entitled

to a new trial because the government violated the discovery

obligations imposed by Brady v. Maryland, 373 U.S. 83

(1963). In particular, Bruce argues the government violated

his right to due process because it failed to disclose evidence

of another prison guard’s alleged malfeasance. We agree

with Bruce that at least some of the withheld evidence was

exculpatory, but conclude it was not material within the

meaning of Brady. The district court did not err by denying

Bruce’s motion for a new trial.

I.

On December 12, 2015, Thomas and Tracy Jones were on

their way to visit an inmate at the United States Penitentiary

in Atwater, California (Atwater), when guards conducting

random car searches stopped them at a checkpoint. As the

officers began their search, Jones admitted there were drugs

in the car he was driving. The officers found four vacuumpacked bags of marijuana, a package of heroin, and three

marijuana cigarettes.

Jones agreed to cooperate after investigators suggested

that if he did not do so, he and his wife could face a lengthy

incarceration, and he spoke to the investigators at length. 

Jones told the investigators that he and his wife had

developed an online relationship with an inmate named

Devonne Randolph over the course of the preceding year, and

that they began visiting Randolph at Atwater. After Jones

and his wife agreed to receive packages and cash for

Randolph, packages containing money and “little medicated

strips” began to arrive at their home. Jones also reported

receiving transfers of cash from people associated with other
UNITED STATES V. BRUCE 5

Atwater inmates, and he told the officers that Randolph gave

him a telephone number to send text messages to someone he

referred to as “Officer Johnson” when packages arrived. 

According to Jones, Randolph said that Officer Johnson

would deliver the packages to Randolph in prison. Jones

admitted making a delivery to Officer Johnson in September

2015, and another in November. Both deliveries took place

in a parking lot near Atwater. Jones recounted entering

Officer Johnson’s black Jeep Cherokee, handing him the

packages, and leaving.

When asked to describe Officer Johnson, Jones said

Johnson was “Hispanic looking” with dark curly hair. Jones

also described Officer Johnson wearing a Pittsburgh Steelers

hat and having a raspy voice, a heavyset build, and dark skin. 

One of the officers recalled seeing another correctional

officer sporting a Steelers hat at an off-duty event. He

showed Jones a Facebook photo from the event that included

David Bruce and one other person. Bruce was the only one

in the photo wearing a Steelers hat. Without hesitation, Jones

identified Bruce as Officer Johnson.

In the days following the checkpoint interview, Jones

assisted Atwater agents in setting up an additional meeting. 

An agent went to the parking lot as Jones had done before and

sent a text message announcing his arrival. Within a few

minutes, Bruce appeared driving one of two cars he owned. 

Though there was “[p]lenty of parking available,” Bruce

circled the parking lot twice and slowed down each time he

passed Jones’s car. The agents stopped Bruce, who denied

being there for a drug deal but surrendered his telephone for

a forensic examination. Approximately fifteen months later,

in March 2017, Bruce was arrested and indicted for
6 UNITED STATES V. BRUCE

conspiracy, attempted possession with intent to distribute

heroin or marijuana, and accepting a bribe as a public officer.

As Bruce’s case proceeded toward trial, the government

filed an ex parte motion for in camera review. The motion

sought permission to not disclose certain information about

two Atwater officers, including Officer Paul Hayes. The

motion informed the district court that Hayes was present

during the initial search of Jones’s vehicle, but explained the

government did not intend to call him as a trial witness. The

motion disclosed to the court that Hayes’s personnel file

contained incriminating information, including more than

seventy inmate complaints about him, and that he was under

investigation for smuggling drugs into another prison. The

court granted the government’s motion and the information

concerning Hayes was not produced to defense counsel. Also

pretrial, the court denied Bruce’s motion in limine to exclude

all testimony concerning Jones’s identification of Bruce.

The government’s trial witnesses included Jones, who

told the jury he was testifying in the hope that he would not

be charged, and Robert Rush, an Atwater inmate who

described himself as Bruce’s friend. Rush testified that he

helped Bruce orchestrate the smuggling scheme, that Bruce

smuggled contraband into the prison, and that Rush sold it to

other inmates and split the proceeds with Bruce. Rush also

testified that Atwater guards pressured him to testify against

Bruce.

The government’s other witnesses included a Western

Union representative who linked money transfers from

Rush’s friends and family to Bruce, and established that

Bruce collected at least some of the money transfers using his

California driver’s license. A T-Mobile representative
UNITED STATES V. BRUCE 7

testified that someone purchased a prepaid cell phone within

the same time frame as the investigation into the smuggling

ring and within the same geographic market as Atwater. The

witness explained that this type of phone did not require

verification of the purchaser’s full name, Social Security

number, or address. Federal agents linked calls and texts

from the cell phone to associates of various inmates and to

Jones. Officers from Atwater corroborated Jones’s account

of the events on the day he and his wife were stopped at the

checkpoint, and described the investigation that followed the

checkpoint stop.

The defense trial theory focused on demonstrating

reasonable doubt about Bruce’s participation in the narcotics

smuggling ring. Bruce chose to testify, and although he

conceded he was financially involved with inmates, he

claimed these financial ties were limited to sports betting. 

Bruce testified that he drove a black Jeep Cherokee—the

same kind of car Jones described Officer Johnson

driving—and admitted that he knowingly violated prison

policy by having a financial relationship with Rush. Bruce

also admitted that he passed messages to inmates from

outside the prison, and that he received money from Rush’s

girlfriend. Bruce testified that he viewed this payment as a

“kind gesture” from Rush for his assistance with Rush’s

sports gambling. Bruce denied any other wrongdoing. The

jury convicted Bruce on all counts.

Shortly after Bruce’s verdict, the government indicted

Hayes for taking part in a drug smuggling scheme at

Victorville, a different federal prison in California. Hayes

had transferred to work at Victorville prison after

participating in the investigation at Atwater. The indictment

charged Hayes with similar crimes and revealed that the
8 UNITED STATES V. BRUCE

investigation into Hayes’s actions at Victorville began in July

of 2018, approximately sixteen months after Bruce was

indicted and seven months before Bruce’s trial started. 

Bruce’s defense team immediately investigated the charges

against Hayes by conducting follow-up interviews at Atwater. 

This time, inmate Rush provided significantly more detail

about the guards’ efforts to get him to cooperate with their

investigation and their efforts to persuade him to testify

against Bruce.

Rush told the defense team that Hayes was part of a group

of officers who threatened to keep Rush in segregated

housing unless he testified at Bruce’s trial. According to

Rush, the same group threatened to arrest Rush’s family and

friends. Devonne Randolph, the inmate Jones and his wife

intended to visit on the day they were stopped at the

checkpoint, did not testify at Bruce’s trial but Randolph told

the defense team in a post-trial interview that rumors among

inmates and staff suggested it was “common knowledge” that

Hayes also smuggled drugs into Atwater while he was

employed there. Randolph described correctional officers at

Atwater using much more extreme measures to persuade him

to give information about “whatever cops was allegedly

breaking the law”—including threatening to physically

assault himif he did not cooperate with the investigation. But

Randolph told the defense team that he had no personal

interactions with anyone called Officer Johnson, and that he

did not know David Bruce.

Bruce moved for a new trial based on Brady v. Maryland,

373 U.S. 83 (1963), arguing the government violated its

obligation to produce exculpatory evidence. Bruce argued

the government purposely failed to disclose that Hayes was

a target in the Victorville investigation, and that many
UNITED STATES V. BRUCE 9

inmates had lodged complaints against Hayes while he

worked at Atwater. The government urged the court to deny

the motion. It argued it had no obligation to produce the

evidence concerningHayes because Federal Rule ofEvidence

608 would have prevented Bruce from using it for

impeachment purposes. The government also argued the

evidence of Hayes’ misconduct did not negate the plethora of

evidence against Bruce, and that the government had no

reason to know the extent of Hayes’s involvement in the

Atwater investigation because the investigation reports

contained little mention of Hayes. The district court agreed

with the government. It ruled the previously undisclosed

information did not undermine the court’s confidence in

Bruce’s verdict, and denied the motion for a new trial. Bruce

timely appealed.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We

affirm the district court’s orders admitting the identification

evidence and denying Bruce’s motion for new trial.

II.

We review de novo “[t]he constitutionality of pretrial

identification procedures.” United States v. Carr, 761 F.3d

1068, 1073 (9th Cir. 2014). We likewise review de novo the

denial of a motion for a new trial arising from the

government’s duty to produce exculpatory evidence pursuant

to Brady.

1 United States v. Pelisamen, 641 F.3d 399, 408 (9th

Cir. 2011).

1 We recognize there is some tension in our case law concerning the

correct standard of review for these appeals. See United States v.

Endicott, 803 F.2d 506, 514 (9th Cir. 1986). The outcome here does not

depend on the standard of review.
10 UNITED STATES V. BRUCE

III.

We first address Bruce’s argument that the district court

erred by allowing the government to admit evidence that

Jones identified Bruce. In the district court, Bruce argued

Jones’s identification was unreliable because Jones identified

Bruce under circumstances that were impermissibly

suggestive. Specifically, after Jones described Officer

Johnson wearing a Steelers’ hat, he was shown a Facebook

photo in which Bruce was the only one wearing a Steelers’

hat, and he selected Bruce from the photo.2 The district court

was not convinced, and it denied the motion to exclude

Jones’s identification of Bruce. The court reasoned the

circumstances in Bruce’s case were unlike those in which

witnesses testify after one brief exposure to a suspect during

the commission of a crime or while witnessing a startling

event. Rather than resting on a single, quick view, Jones was

in close proximity to “Officer Johnson” on at least two prior

occasions when the two met to pass contraband. The court

determined Jones was capable of providing reliable testimony

about whether Bruce was the person he met without being

unduly influenced by the Facebook photo.

To review the constitutionality of a pretrial identification

procedure, we consider whether the “procedure was so

impermissibly suggestive as to give rise to a very substantial

likelihood of irreparable misidentification.” Simmons v.

United States, 390 U.S. 377, 384 (1968); see also Neil v.

Biggers, 409 U.S. 188, 198 (1972) (“It is the likelihood of

misidentification which violates a defendant’s right to due

2 Tracy Jones did not testify and the record is silent as to whether she

accompanied Thomas to the meetings with Officer Johnson, or was

otherwise able to identify him.
UNITED STATES V. BRUCE 11

process . . . .”). Three factors guide our review: (1) whether

“the pretrial identification procedure was impermissibly

suggestive”; (2) whether “it was sufficiently reliable such that

it does not implicate the defendant’s due process rights”; and

(3) “even if the pretrial identification procedure was

suggestive and the identification was unreliable, this court []

examine[s] the district court’s failure to exclude the

identification for harmless error.” Carr, 761 F.3d at 1074–75

(citing Ocampo v. Vail, 649 F.3d 1098, 1114 (9th Cir. 2011)).

An identification procedure is suggestive when it focuses

upon a single individual thereby increasing the likelihood of

misidentification. United States v. Montgomery, 150 F.3d

983, 992 (9th Cir. 1998). We examine the totality of the

circumstances to determine whether an identification

procedure was unduly suggestive. United States v. Bagley,

772 F.2d 482, 492 (9th Cir. 1985); Neil, 409 U.S. at 196. 

Among other factors, we have considered the witness’s

opportunity to view the person being identified, the witness’s

degree of attention, the accuracy of the witness’s prior

description, the level of certainty demonstrated by the witness

at the confrontation, and the length of time between the prior

observation of the suspect and the confrontation. Neil,

409 U.S. at 199–200. “Any weaknesses in eyewitness

identification testimony can ordinarily be revealed by

counsel’s careful cross-examination of the eyewitnesses.” 

United States v. Labansat, 94 F.3d 527, 530 (9th Cir. 1996).

Bruce argues that the use of the single Facebook photo

violates longstanding precedent condemning identification

techniques that focus attention on only one person. He argues

such techniques are inherently suggestive and that the use of

the Facebook photo was especially suggestive in this case

because, according to Bruce, he and Hayes look alike: both
12 UNITED STATES V. BRUCE

have Hawaiian and Caucasian ancestry and “nearly identical

body styles.” Bruce points out that Jones’s trial testimony

was inconsistent about whether he told the Atwater officers

that Officer Johnson always wore a hat, and he argues that

Jones must have guessed about Johnson’s height because

Johnson was sitting in his car both times Jones met with him.

Bruce is correct that Jones was uncertain in his trial

testimony about whether he told the officers who stopped him

that Officer Johnson always wore a hat. Jones was also

unsure about whether he had said the hat was a Steelers hat. 

And Jones testified that Officer Johnson was about “five-four,

five-five,” only to later admit that he could not be sure of this

detail because he had never seen Officer Johnson standing.

3

Bruce contends these inconsistencies in Jones’s trial

testimony show he was never sure of his identification and

that the evidence of Jones’s identification should have been

excluded for this reason. We disagree.

We are persuaded the district court reasonably concluded

the use of the Facebook photo was not so suggestive that it

rendered Jones’s identification unreliable. See Neil, 409 U.S.

at 199–200. Unlike witnesses who are startled by a crime in

progress, Jones ventured out to meet with “Officer Johnson”

on two occasions and voluntarily got into his car both times. 

The two men were in close proximity and the second meeting

took place just 15 days before Jones was stopped and

questioned at the checkpoint. The Atwater officers testified

that Jones identified Bruce from the photo without hesitation,

and Jones testified that he was certain of the identification at

the time he made it in 2015. Jones explained to the jury that

before he was shown the Facebook photo, he accurately

3

 The record indicates Bruce is five-feet ten-inches tall.
UNITED STATES V. BRUCE 13

described details concerning Officer Johnson’s beard, hair

color, body type, and clothing. Jones also recalled that

Officer Johnson drove a black Jeep Cherokee.

More than three years passed between the day Jones

identified Bruce from the Facebook photo and the day Jones

testified at Bruce’s trial. The jury was able to consider

whether the passage of time may have accounted for the

discrepancies between the identification Jones made in 2015

and the details he was able to recall at trial. The jury was also

able to consider defense counsel’s cross-examination ofJones

and it heard the testimony of other witnesses who had been

present during the interview following the checkpoint stop. 

See United States v. Higginbotham, 539 F.2d 17, 23 (9th Cir.

1976) (finding no prejudice resulted from admission of

identification evidence because jury heard cross-examination

of identifying witness). Certainly, the jury had reason to

question Jones’s credibility because it knew investigators

suggested to Jones that he and his wife could avoid charges

if Jones cooperated, and the jury knew Jones was eager to

cooperate. Bruce contends that Jones’s description of

Johnson matched Hayes as well as Bruce, but he did little to

develop or support this argument in the district court and the

record does not allow us to meaningfully assess this

comparison on appeal. Even if the Facebook photo was

suggestive, our consideration of the totality of the

circumstances persuades us that the district court did not err

by admitting this identification evidence.

IV.

Bruce next argues the district court erred by denying his

motion for a new trial because the government violated Brady
14 UNITED STATES V. BRUCE

by failing to produce evidence of Hayes’s misconduct.4 The

government’s pretrial motion sought an order permitting it to

not disclose: (1) over seventy inmate complaints about Hayes,

including some that alleged physical abuse; (2) that Hayes

had been charged with domestic violence and was arrested for

violating a protective order; (3) that two other investigations

against Hayes were pending for physical abuse of inmates

and for threatening inmates; and (4) that as of July 2018,

Hayes was being investigated for smuggling contraband

drugs into an unspecified prison, and had been observed

meeting an inmate’s girlfriend in a Home Depot parking lot

and accepting a small package from her. The motion

disclosed that an inmate instructed his girlfriend to meet an

orange SUV with “Vegas plates” in a parking lot and that the

description of the vehicle matched one that Hayes owned. 

The motion acknowledged that Hayes had been present at the

Atwater checkpoint in 2015 and helped search Jones’s car,

but it argued the information about Hayes’s alleged

malfeasance need not be disclosed because other witnesses

could testify about the contraband found in Jones’s car.5

Under a heading titled “Expected Defense Arguments,” the

government’s motion only stated that if the evidence

regarding Hayes were disclosed to the defense, the defense

might seek to call him for the sole purpose of bringing out

impeachment evidence. The government asserted that

Evidence Rule 608 would not allow the evidence to be used

4 Bruce also made passing mention of Giglio v. United States,

405 U.S. 150 (1972), and United States v. Henthorn, 931 F.2d 29 (9th Cir.

1991), but on appeal, he frames his claim as a Brady argument.

5 On appeal, Bruce repeatedly asserts that Hayes found the contraband

in Jones’s car, but as the district court recognized, the record shows a

different officer found the drugs.
UNITED STATES V. BRUCE 15

in this way. The motion did not anticipate any other

arguments the defense might raise regarding the

discoverability of the withheld evidence.6

Bruce filed a motion for new trial after Hayes was

indicted. The motion argued the government had been aware

that Hayes was a target in the Victorville investigation and

that it violated its duty to disclose this information. More

specifically, Bruce charged the government “purposefully

crafted” its case to avoid relying on Hayes so it could

withhold evidence reinforcing Bruce’s theory that a different

culprit was responsible for smuggling contraband into

Atwater. See U.S. v. Bagley, 473 U.S. 667, 676 (1985). 

Bruce cited post-trial interviews with inmates Rush and

Randolph as proof that Hayes had been extensively involved

in the Atwater investigation and contended the government’s

pre-trial motion left the district court in the dark by

minimizing Hayes’s involvement in the investigation into

Bruce’s smuggling. In response, the government conceded it

had intentionally avoided calling Hayes as a witness because

it knew Hayes was subject to being impeached, but the

government maintained it had complied with Brady.

During the hearing on Bruce’s motion for new trial, the

district court took issue with the government’s pre-trial

6 But see DEP’T OF JUSTICE, POLICY REGARDING DISCLOSURE OF

EXCULPATORY AND IMPEACHMENT INFORMATION: DISCLOSURE OF

EXCULPATORY AND IMPEACHMENT INFORMATION BEYOND THAT WHICH IS

CONSTITUTIONALLY AND LEGALLY REQUIRED, 9-5.001(C) (2020),

https://www.justice.gov/jm/jm-9-5000-issues-related-trials-and-other-c

ourt-proceedings#:~:text=Brady%20v.,material%20to%20guilt%20or%

20punishment. (requiring disclosure of qualifying evidence without regard

to admissibility). The same policy requires disclosure of qualifying

evidence without regard to materiality. Id.
16 UNITED STATES V. BRUCE

description of the role Hayes played in the Atwater

investigation. The court described the government’s pretrial

motion as creating “the impression that . . . Hayes was just

one of the officers who happened to be present at the . . .

checkpoint,” and observed that the government’s pre-trial

motion “le[ft] out any other involvement by Hayes” in the

investigation. The court questioned why the government

presented such sparse details in its pre-trial motion, and

suggested that it might have “thought a little harder” about

the motion had it known the full extent of Hayes’s

involvement. The government again conceded that

“additional facts [] could have been provided” in the ex parte

motion, but it argued the undisclosed information did not

satisfy Brady’s materiality test because it did not negate any

of the evidence against Bruce. The government stressed that

it understood Hayes had played only a small role in

developing the case against Bruce at the time it prepared its

ex parte motion. The government also repeated its argument

that Bruce would not have been able to introduce evidence of

Hayes’s misconduct.

The district court agreed with the government that there

had been no Brady violation. The court ruled there was

“overwhelming evidence that support[ed] the jury’s verdict

[against Bruce] completely and totally,” and it pointed out

that no witness had recanted his trial testimony, and that the

post-trial interviews did not controvert any of the

government’s other evidence. The court found “nothing to

support” Bruce’s theory that Hayes was the real perpetrator

at Atwater, and it denied Bruce’s motion for new trial.
UNITED STATES V. BRUCE 17

A.

In Brady v. Maryland, the Supreme Court held that

prosecutors must disclose to the defense “evidence favorable

to an accused . . . [that] is material either to guilt or to

punishment” prior to trial. 373 U.S. at 87. This duty extends

“irrespective of the good faith or bad faith of the

prosecution.” Id. We have explained that failing to disclose

material, favorable evidence violates due process because it

compromises the integrity of the defendant’s trial. United

States v. Shaffer, 789 F.2d 682, 687 (9th Cir. 1986). For this

reason, “[t]he prosecution’s duty to disclose favorable

evidence is not dependent upon a request from the accused,

and even an inadvertent failure to disclose may constitute a

violation.” Bailey v. Rae, 339 F.3d 1107, 1113 (9th Cir.

2003) (citing United States v. Agurs, 427 U.S. 97, 107

(1976)).

The second part of the Brady test—that the non-disclosed

evidence be “material”—limits Brady’s reach. See id. (“To

be sure, not every violation of the duty to disclose constitutes

a Brady violation.”). “[T]here is never a real ‘Brady

violation’ unless the nondisclosure was so serious that there

is a reasonable probability that the suppressed evidence

would have produced a different verdict.” Strickler v. Greene,

527 U.S. 263, 281 (1999). “A ‘reasonable probability’ is a

probability sufficient to undermine confidence in the

outcome.” Bagley, 473 U.S. at 682; see also Kyles v. Whitley,

514 U.S. 419, 434 (1995).

To succeed on his Brady claim, Bruce was required to

show: (1) the evidence at issue was favorable to him, either

because it was exculpatory or impeaching; (2) the evidence

was suppressed by the State, either willfully or inadvertently;
18 UNITED STATES V. BRUCE

and (3) that he was prejudiced. Shelton v. Marshall, 796 F.3d

1075, 1083 (9th Cir.) (quoting Strickler, 527 U.S. at 281–82)

amended on reh’g, 806 F.3d 1011 (9th Cir. 2015). Because

there is no doubt the government did not disclose the

challenged evidence, we consider only whether it was

exculpatory and material.

B.

Bruce identifies two categories of undisclosed

information from the government’s motion in limine that he

contends are exculpatory: (1) evidence that Hayes was a

target of an investigation into a very similar smuggling ring

at Victorville; and (2) evidence showing that numerous

inmate complaints had been made against Hayes prior to the

Bruce investigation. Somewhat more obliquely, Bruce

suggests the government should have disclosed that Hayes

pressured some inmates to offer evidence against Bruce.

Exculpatory evidence includes evidence that is favorable

to the defense, meaning “evidence that tends to prove the

innocence of the defendant.” Amado v. Gonzalez, 758 F.3d

1119, 1134 (9th Cir. 2014); United States v. Cano, 934 F.3d

1002, 1023 (9th Cir. 2019) (observing that Brady requires the

government disclose “material, exculpatory, or otherwise

helpful” evidence). “Any evidence that would tend to call the

government’s case into doubt is favorable for Brady

purposes.” Milke v. Ryan, 711 F.3d 998, 1012 (9th Cir. 2013)

(citing Strickler, 527 U.S. at 290); see also United States v.

Bundy, 968 F.3d 1019, 1038–39 (9th Cir. 2020) (citing Kyles,

514 U.S. at 437) (evidence showing tactical units surrounding

property where defendants were engaged in standoff with

federal officers, and evidence showing government

surveillance of the property, was exculpatory because it
UNITED STATES V. BRUCE 19

rebutted government’s theory that defendants did not fear

government snipers). “To say that evidence is ‘exculpatory’

does not mean that it benefits the defense in every regard or

that the evidence will result in the defendant’s acquittal.” 

Bailey, 339 F.3d at 1115. Rather, “exculpatory” connotes a

broader category of evidence that, “if disclosed and used

effectively, [] may make the difference between conviction

and acquittal.” Bagley, 473 U.S. at 676; see Bailey, 339 F.3d

at 1115 (granting new trial where government failed to

disclose reports casting doubt on star witness’s testimony,

and rejecting argument that certain passages “somehow

negate[d] the documents’ exculpatory nature”).

The obligations imposed by Brady are not limited to

evidence prosecutors are aware of, or have in their

possession. Rather, individual prosecutors have “the duty to

learn of any favorable evidence known to others acting on the

government’s behalf” as part of their “responsibility to gauge

the likely net effect of all such evidence” to the case at hand. 

Kyles, 514 U.S. at 437.

Here, the government argues the withheld evidence

concerning Hayes was not exculpatory because it “was not

material to Bruce’s guilt or innocence” and did not negate the

other evidence against Bruce. This conflates Brady’s

exculpatory and materiality requirements.7 Bagley, 473 U.S.

at 676. On appeal, the government suggests the evidence

would not have been admissible pursuant to Rule of Evidence

7 The government cites United States v. Agurs, 427 U.S. 97 (1976) in

support of its argument. Agurs addresses materiality, not the standard for

determining whether evidence is exculpatory, and the three materiality

standards articulated in Agurs have since been overruled. United States

v. Shaffer, 789 F.2d 682, 687 (9th Cir. 1986).
20 UNITED STATES V. BRUCE

401 or Rule 403, but this argument also misses the mark. The

standard for relevance is easily met because evidence that one

of Bruce’s co-workers was accused of engaging in a very

similar prison smuggling ring makes it somewhat more

probable that a third party was responsible for the crimes

Bruce was accused of committing. Fed. R. Evid. 401. The

government did not raise a Rule 403 objection in the trial

court, thereby forfeiting that issue.

In the trial court and on appeal, the government’s

response failed to acknowledge its broader ethical

responsibility. See Turner v. United States, 137 S. Ct. 1885,

1893 (2017) (observing “government’s interest in a criminal

prosecution is not that it shall win a case, but that justice shall

be done”); see also Kyles, 514 U.S. at 437–40 (recognizing

“the prosecution’s responsibility for failing to disclose

known, favorable evidence rising to a material level of

importance is inescapable” and for that reason, “a prosecutor

anxious about tacking too close to the wind” will err on the

side of disclosure in order to “justify trust in the prosecutor”

and to “preserve the criminal trial . . . as the chosen forum for

ascertaining the truth about criminal accusations”); see also

id. (observing the ABA Standards for Criminal Justice “call

generally for prosecutorial disclosures of any evidence

tending to exculpate or mitigate”).

Bruce persuasively argues that evidence of Hayes’s

smuggling at Victorville was exculpatory because it

supported the defense theory that a third party was

responsible for the crimes he was accused of committing. See

United States v. Jernigan, 492 F.3d 1050, 1054 (9th Cir.

2007); Kyles, 514 U.S. at 421 (observing that Brady “turns on

the cumulative effect of all such evidence suppressed”). He

argues this is particularly so if the evidence that Hayes was a
UNITED STATES V. BRUCE 21

target in theVictorville investigation is viewed in conjunction

with the other withheld evidence concerning Hayes.

The government strenuously argues it was entitled to

structure its case to avoid producing evidence that could have

been used to impeach Hayes and that it was free to do so

because it had no obligation to call Hayes as a witness. But

the fact the government took the step of filing an ex parte

motion seeking the court’s permission not to disclose

evidence ofHayes’s misconduct undercuts the suggestion that

the government had no reason to question whether the

undisclosed evidence was exculpatory. See Kyles, 514 U.S.

at 439 (explaining the prudent prosecutor’s better course is to

take care to disclose any evidence favorable to the defendant

in order to comply with Brady). We agree the government

had no obligation to call Hayes as a witness, but the

government still bore the burden of investigating whether

potentially exculpatory evidence existed. See Browning v.

Baker, 875 F.3d 444, 459 (9th Cir. 2017) (quoting Strickler,

527 U.S. at 280) (emphasizing prosecution’s special status in

criminal justice system heightens its burden of disclosure).

The government separately argues it cannot be held

responsible for disclosing the extent of Hayes’s involvement

in the Atwater investigation because the government had no

way of knowing that Hayes had contact with Atwater inmates

who witnessed or participated in the Atwater scheme. Our

case law also forecloses this argument. “Because prosecutors

are in a ‘unique position to obtain information known to other

agents of the government,’” they have an obligation to

“disclose what they do not know but could have learned.” 

Cano, 934 F.3d at 1023 (alterations omitted). Prosecutors

cannot turn a blind eye to their discovery obligations.
22 UNITED STATES V. BRUCE

We are not persuaded by the government’s separate

contention that because Hayes and Rush were identified in

the documents the government did produce, it was incumbent

upon the defense to investigate Hayes and Rush and uncover

potentially favorable evidence itself. This argument

overlooks that Bruce’s counsel had no reason to suspect that

further discovery into Hayes’s participation in the Atwater

investigation could have yielded information supporting the

defense theory. Kyles, 514 U.S. at 437.

Our conclusion that the government fell short of meeting

its Brady discovery obligation here is influenced by the ex

parte motion the government filed before trial. In it, the

government memorialized its awareness that Hayes was

present when Jones’s vehicle was stopped and that Hayes was

under investigation for introducing contraband into another

federal prison in a very similar smuggling operation. Hayes

was observed meeting an inmate’s girlfriend in a Home

Depot parking lot and accepting a small package from her. 

The motion also disclosed to the court that the government

possessed an email exchange in which the inmate instructed

his girlfriend to meet an SUV matching the description of

Hayes’s SUV. In short, by the time the government filed its

motion seeking permission to withhold evidence of Hayes’s

alleged misconduct, it knew Hayes was suspected of running

a prison smuggling ring using the same method Bruce was

accused of using at Atwater. In addition, the government was

undoubtedly aware that Hayes held a supervisory position at

Atwater while Bruce’s investigation was ongoing, and the

government knew that its main trial witness, Rush, had been

moved to segregated housing and questioned by prison

officials. Whether memorialized in an investigation report or

not, the government was certainly in a position to know

Hayes was one of the officers who questioned Rush. Indeed,
UNITED STATES V. BRUCE 23

Rush volunteered in his trial testimony that Hayes was one of

the officers who moved him to segregated housing and

threatened to keep him there if Rush did not testify against

Bruce. Despite the stark similarities between the Atwater

scheme and what was known about the smuggling at

Victorville, the record does not show, and the government

does not argue, that it ever followed up to learn what role

Hayes played in the Atwater investigation, nor that the

government took any steps to determine whether the two

smuggling rings were in fact unrelated.8

The government’s pretrial submission to the district court

limited its “Expected Defense Arguments” to a one-sentence

assertion that if the evidence were produced, the defense

might seek to call Hayes for the sole purpose of bringing out

impeachment information. Neither the ex parte motion nor

the transcript of the argument held on Bruce’s motion for new

trial show the government ever took any steps to verify that

the two smuggling rings were separate. Nor does the

government argue on appeal that it considered whether

exculpatory material might exist. The government collapses

Brady’s three-part test into an examination of materiality.

The district court was not persuaded the withheld

evidence was exculpatory, largely because Hayes was

8 Post-trial, Randolph suggested it was “common knowledge” Hayes

was involved in smuggling at Atwater. But the record on appeal does not

show whether Randolph ever admitted to having personal knowledge

about any smuggling. Nevertheless, contrary to the government’s

suggestion, it is plain the government knew the Victorville operation was

remarkably similar to the one at Atwater and the government could have

learned that Hayes played a role in the Atwater investigation that went

beyond the checkpoint stop and included having contact with inmates who

were accused or admitted to participating in the scheme.
24 UNITED STATES V. BRUCE

accused of smuggling after Bruce’s smuggling had been

uncovered and because Hayes was accused of smuggling at

Victorville rather than Atwater. Respectfully, we disagree. 

The responsibility imposed by Brady includes looking

beyond evidence in the prosecutor’s file; there were striking

similarities between the two smuggling operations; Hayes

was directly involved in the Atwater investigation that led to

Bruce’s arrest and had access to some of the witnesses who

testified against Bruce; and Bruce’s trial theory argued

someone else was responsible for the smuggling at Atwater. 

Under the facts presented, we conclude this evidence was

exculpatory within the meaning of Brady and at the very least

the government was required to investigate it.

C.

We evaluate the trial as a whole to determine whether the

“admission of the suppressed evidence would have created a

reasonable probability of a different result.” United States v.

Price, 566 F.3d 900, 911 (9th Cir. 2009) (internal quotation

marks omitted). “In considering whether the failure to

disclose exculpatory evidence undermines confidence in the

outcome, judges must undertake a careful, balanced

evaluation of the nature and strength of both the evidence the

defense was prevented frompresenting and the evidence each

side presented at trial.” Jernigan, 492 F.3d at 1054 (internal

quotation marks omitted); see Comstock v. Humphries,

786 F.3d 701, 711–12 (9th Cir. 2015) (reversing conviction

where lack of direct evidence combined with suppression of

a witness’s “expressed doubts and recollections”

“substantially diminished, if not defeated” the state’s ability

to prove guilt beyond a reasonable doubt). Evidence is

sometimes considered material if the government’s other

evidence at trial is circumstantial, or if defense counsel is able
UNITED STATES V. BRUCE 25

to point out significant gaps in the government’s case through

cross-examination, or if witnesses provided inconsistent and

inaccurate testimony. See Bailey, 339 F.3d at 1115–16

(granting new trial where suppressed report went “to the heart

of [the accused’s] defense and without it” the verdict was not

“worthy of confidence”).

Our decisions in Jernigan and Price are instructive. In

Jernigan, we remanded for a new trial because the

government did not disclose the existence of another bank

robber for whom the defendant “may well have been

mistaken.” 492 F.3d at 1055. When considered with other

inconsistencies in witness testimony and the lack of direct

evidence against Jernigan, the omitted evidence suggested the

defendant may have been innocent. In Price, our court

remanded for a new trial because the prosecution failed to

disclose its star witness’s past convictions, which could have

been used to undermine his credibility. The government’s

only direct evidence of Price’s guilt came from this witness’s

testimony and in its closing argument, the government urged

that the witness had no reason to lie. We explained that this

created a “central weakness” for the defense. 566 F.3d at

913–14. Coupled with Price’s showing that the government’s

other evidence was circumstantial and inconsistent, we

concluded the undisclosed information was material. Id.

Bruce argues the information the government failed to

disclose was material because it would have allowed the jury

to find reasonable doubt about whether Hayes was

responsible for the smuggling operation at Atwater. He

contends there is a substantial likelihood the verdict would

have been different if the jury had heard that Hayes was

suspected of smuggling at Victorville and knew that, as a

supervisor at Atwater, Hayes had access to the witnesses who
26 UNITED STATES V. BRUCE

testified against him. Bruce also suggests the investigation

reports suspiciously failed to document Hayes’s involvement

in the Atwater investigation, and maintains this fact could

have been used to buttress his defense theory that there was

reasonable doubt about his guilt. See Kyles, 514 U.S. at 420

(holding the State’s disclosure obligation turns on the

cumulative effect of all suppressed evidence favorable to the

defense).

Our task is to compare the evidence against Bruce with

the gaps in the evidence presented to the jury to determine

whether the undisclosed evidence undermines our confidence

in the outcome. See Price, 566 F.3d at 911. We conclude it

does not. First, though the jury did not have all the details, it

was aware that Rush was pressured to testify against Bruce. 

Rush told the jury as much, volunteering that Hayes was one

of the officers who moved Rush into segregated housing and

threatened to keep him there if he did not testify. Rush also

testified that he felt additional pressure because officials

interviewed his girlfriend and his relatives during their

investigation. The jury was not left with conflicting

testimony about the prison officials’ efforts to uncover the

extent of the smuggling ring. The investigators corroborated

Rush’s account that he was moved to segregated housing, and

they testified that another inmate expressed that investigators

threatened his mother and brother during follow-up

questioning.

The evidence against Bruce was substantial and we agree

with the district court that in their post-trial interviews neither

Jones nor Rush recanted their testimony about Bruce’s

involvement. By the district court’s account, Rush “very

credibly claimed” at trial that he and Bruce were friends,

which was why Rush resisted cooperating with investigators. 
UNITED STATES V. BRUCE 27

The district court described Rush as demonstrating “no joy in

testifying against Mr. Bruce,” and observed that Jones was

“quite, quite credible,” and that his testimony had been

“devastating” toBruce. Considerable circumstantial evidence

also implicated Bruce. Atwater investigators described

Jones’s account of the checkpoint stop and that Bruce showed

up, at the appointed time, for the meeting Jones arranged after

he agreed to cooperate. Representatives from Western Union

and T-Mobile linked Bruce to monetary transactions from

Atwater inmates’ friends and family members, and also

linked Bruce to the cell phone used to communicate with

Jones.

Bruce testified that his financial dealings with inmates

showed only that he engaged in sports gambling with them,

but the jury was not required to credit this testimony. Bruce

did not deny that he had accepted money from inmates, or

that the cell phone was used to arrange meetings to pass the

contraband. Unlike Price, the government’s case did not

bank on a single star witness; Rush and Jones corroborated

each other’s accounts and their testimony was heavily

corroborated by other evidence. 566 F.3d at 913–14; see,

e.g., Comstock, 786 F.3d at 711–12; Bailey, 339 F.3d

at 1115–16. The weight and force of the evidence against

Bruce sets this case apart from others in which we have found

Brady’s materiality element satisfied.

ThoughBruce suggests the withheld evidence would have

opened the door for the jury to hear that Hayes was

smuggling drugs into Atwater, he offers no real evidence that

Hayes did smuggle contraband into Atwater. Bruce’s

speculation that Hayes may have been left alone with Jones

or his wife fares no better. He implies that Hayes may have

had an opportunity to influence their statements, but the
28 UNITED STATES V. BRUCE

investigating officers’ testimony suggests several

investigators were present when Jones and his wife were

questioned.

Because we view the trial as a whole, our confidence in

the verdict is not undermined by the government’s failure to

disclose that Hayes was a subject of an investigation at

Victorville, that numerous inmates had complained about

him, and the extent of his involvement in the Bruce

investigation. The district court did not err by denying

Bruce’s motion for a new trial.

AFFIRMED.