FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

U NI T E D S TAT E S O F A ME R I C A , Plaintiff-Appellee
,

v

.

D A VI D G

. B R

U C E 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 Subm itted August 14, 2020 San Francisco, California

Filed January 12, 2021

Before: Michael Daly Hawkins and Morgan Christen, Circuit Judges, and Jam es E. Gritzner, * District Judge.

Opinion by Judge Christen

* The Honorable Jam es E. Gritzner, United States District Judge for the Southern District of Iowa, sitting by designation.U NI T E D S TAT E S V

. B R

U C E 2

SUMMARY * *

Criminal Law

The panel affi rme d the district court’s orders adm itting identification evidence and denying a m otion for new trial in

a case in which David Bruc e was convicted of conspiracy,
attem p t to possess with i ntent to d istribute heroin o r

m arijuana, and bribery, arising from Bruce’s involvem ent in

a drug sm uggling schem e at the United States Penitentiary at Atwater, California, where Bruce worked as a correctional officer.

The panel held that the district c ourt reasonably concluded that the use o f a Facebook photo during an identification pro ced

ure w as n o t so suggestive that it rendered the witness’s identification unreliable.

The panel held that the district c o urt d i d n ot err by denying the m o tion for new trial in which Bruce argued that the governm ent vio lated Brady v. Maryland by failing to produce evidence indicating that Atwater officer Paul Hayes

was a target of an investigation into a very sim ilar sm uggling ring at a differ e nt federal p rison, that num erous inm ate

com plaints had been m ade against Hayes prior to the Bruce investigation, and that H ayes pressured som e inm ates to offer evidence against Bruce. The panel h eld that the evidence was exculpatory within the m eaning of Brady and at the very least the governm e nt was required to investigate it. Addressing Brady ’s m ateriality requir em ent, the p anel cited the weight

** This summ ary constitutes no part o f the opinion of the court. It h as been prepared by court staff for the convenience of the reader.U NI T E D S TAT E S V

. B R

U C E 3

and force of the evidence against Bruce, and concluded that its confidence in the v e r d i ct w as not underm ined by the
governm ent’s failure to disclose the exculpatory evidence.

C OUNSEL

Am anda K. Moran (argued) and Janay D. Kinder, Moran Law Firm , Fresno, California, for Defendant-Appellant.

Vincenza Rabenn (argued), Assistant United States Attorney; Cam il A. Skipper, Appellate Chief; McGregor W

. S c o tt, Un ited States Attorney; United States Attorney’s Office, Sacram ento, California; for Plaintiff-Appellee.

OPINION

CHRISTEN, Circuit Judge:

David Bruce appeals h is co nv i ctions for conspiracy, 18 U.S.C. § 371, Attem

pt to P ossess with Intent to Distribute Heroin or Marijuana, 21 U .S.C. §§ 846, 841(a)(1), an d Bribery: Public Offi cial Accepting a Bribe, 18 U.S.C. § 201(b)(2)(C). The charges arose from Bruce’s involvem ent in a drug sm

uggling schem e at the United States Penitentiary
at Atwater, California, where Bruce w orked as a correctional officer. A fter a jury trial, Bruce was convicted and sentenced to 78 m onths in prison.

Bruce raise s two issues on appeal. First, he argues the district court err ed by adm itting testim ony from another participant in the sm

ug g l i ng schem e who identified Bruce from a Facebook photo. W e conclude the d istrict court didU NI T E D S TAT E S V

. B R

U C E 4

not ab use its discretion by adm itting the governm ent’s identification evidence. Second, Bruce argues he is entitled
to a new trial because the governm ent violated the discovery

o b ligations im

posed by Brady v. Maryland
, 373 U.S. 8 3 (1963). In p articular, Bruce argues the governm ent violated his right to due process because it failed to disclose evidence of an o ther prison guard’s alleged m alfeasance. W e agree with B ruce that at least som e of the with h e l d evidence was exculpatory, but c o n clude it was not m aterial within the

m eaning of Brady

. The d istrict court did not err by denying Bruce’s m otion for a new trial.

I.

On D ecem

ber 12, 2015, Thom as and Tracy Jones were on their way to visit an inm ate at the United States Penitentiary in Atwate r, California (Atwater), when guards conducting random car searc h e s stopped them at a checkpoint. As the officers began their search, Jones adm itted there were drugs in the car he was driving. The officers found four v acuum

packed bags of m arijuana, a packa g e of heroin, and three

m arijuana cigarettes.

Jones agreed to coopera t e after investigators suggested that if he d id not d o so, he and his wife could face a lengthy incarceration, and he spoke to the invest i g ators at length. Jones told the investigators that he and his wife h ad deve l o p e d an online relationship with an inm ate nam ed Devonne Randolph over the course of the preceding year, and
that they began visiting Randolph at Atwater. After Jo ne s and his w ife agreed to re c e iv e packages and cash for Randolph, packages containing m oney and “little m edicated

s trips” began to arrive at their hom e. Jones also reporte d receiving transfers of cash from people associated with otherU NI T E D S TAT E S V

. B R

U C E 5

Atwater inm ates, and he told the officers that Randolph gave him a telephone num

ber to send text m essages to som eone he referred to as “Officer Johnson” wh en packages arrived. According to Jones, Randolph said that Office r J ohnson would deliver the packages to Randolph in prison. Jones adm itted m aking a delivery to Officer Johnson in Septem ber 2015, and another in Novem ber. Both delive r i e s took place in a parkin g l o t near Atwater. Jones recounted entering Officer J o hn son’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 h air. Jones also described Officer Johnson wearing a Pittsburgh Steelers hat and having a raspy voice, a heavyset build, and dark skin. One o f the officers recalled seeing another correctional officer sporti n g a S teelers hat at an off-duty event. He showed Jones a Facebook photo from the event that included David Bruce and on e o the r person. B ruce was the only o ne in the photo wearing a Steelers hat. W ithout hesitation, Jones identified Bruce as Officer Johnson.

In the days following the checkpoint interview, Jones assisted Atwater agents in setting up an ad di tional m eeting. An agent went to the parking lot as Jones had done before and
sent a text m essage announcing h i s arrival. W ithin a few

m inutes, Bruce appeared driving on e of two cars he owned. Though th ere was “[p]lenty of parking available,” Bruce circled the parking lot twice and slowed down each tim e he passed Jones’s car. The agents stopped Bru c e , who denied being there for a drug deal but surrendered his telephone for

a forensic exam ination. Approxim ately fifteen m onths later, in March 2017, Bruce w as arrested and indic t e d fo rU NI T E D S TAT E S V

. B R

U C E 6

c o nspiracy, attem

pted p ossession w ith intent to distrib ute heroin or m arijuana, and accepting a bribe as a public officer.

As Bruce’s case proceeded toward trial, the governm ent filed an ex parte m otion for in cam era review. The m otion sought perm ission to not disclose certain i nform ation about
two Atwater officers, including Officer Paul Hayes. The

m otion inform ed the district court that Hayes was pre s e nt during the initial search of Jones’s v ehicle, but explained the
governm ent did not intend to call him as a trial witness. The

m o t i o n disclosed to the court that Hayes’s personnel file contained incrim inating inform ation
, including m ore than seventy inm ate com

p laints about him
, and that he w as under investigation for sm

uggling drugs into another prison. The
court gran t ed the governm ent’s m otion and the inform ation concerning Hayes w as not produced to d efense counsel. Also pretrial, the court denied Bruce’s m otion in lim ine to exclude all testim ony concerning Jones’s identification of Bruce.

The governm ent’s trial witnesses included Jones, who told the jury he wa s testifying in the hope that he would not be charged, an d Ro bert Rush, an Atwater inm ate who described him self as Bruce’s friend. R ush testified that he helped B ruce orchestrate the s mu g gling schem e, that Bruce

sm uggled contraband into the prison, and that R ush sold it to other inm ates and split the proceeds with Bru c e. Rush also testified that Atwater guards p ressured him to testify against Bruce.

The governm ent’s other w i tnesses included a W estern Union representative who l inked m oney transfers from Rush’s friends and fam ily to Bruce, and est ablished that Bruce collected at least som e o f the m oney transfers using his California driver’s license. A T-Mobile representativeU NI T E D S TAT E S V

. B R

U C E 7

testified that som eone purchased a prepaid cell phone within the sam e t i me fram e as the investigation into the sm uggling ring and within the sam e geographic m arket as Atwater. The witness explained that this type of phone did not require verification of the purchaser’s full nam e, Soci a l Security

num ber, o r address. Federal agents linked ca l l s and texts from the cell p hone to associates o f v ar i o u s inm ates and to Jones. O fficers from Atwater corroborate d Jones’s account of the events o n th e d ay he and his wife were stopped at the checkpoint, and described the investigation that followed the checkpoint stop.

The defense trial theory focused on dem onstratin g reasonable doubt about Bruce’s participation in the narcotics

s m u g gling ring. Bruce chose to testify, and although h e

c o n c e ded he was financially involved with inm ates, he claim ed these financial ties w ere lim ited to sports b etting. Bruce testified th at he drove a black Jeep Cherokee—the

sam e kind o f car Jones described Officer John son dri v ing—and adm itted that he knowingly violated priso n policy by having a f

inancial relationship with Rush. Bruce al so adm itted that he passed m essages to inm ates from outside the p r ison, and that he received m oney from Rush’s girlfriend. Bruce testified that he v i e we d this paym ent as a “kind g esture” from R

ush for his a s s istance with Rush’s sports gam

bling. Bruce denied any o th er wrongdoing. The jury convicted Bruce on all counts.

Shortly after Bru c e’ s v erdict, the governm ent indicted Hayes for taking part in a drug sm uggling schem e at Victorville, a d ifferent federal prison in California. Hayes had transferred to work at Vi ctorville prison after participating in the investigation at Atwater. The indictm ent charged Hayes with sim ilar crim es and revealed that theU NI T E D S TAT E S V

. B R

U C E 8

investigation into Hayes’s actions at V ictorville began in July of 2018, appr o xim ately sixteen m onths after Bruce was indicted and seven m onths before Bruce’s trial started. Bruce’s defense team imm ediately investigated th e charges
ag ain st H a

y es b y co n d

u ctin g f ollow-up interviews at Atw ater. This tim e, inm ate Rush provided significantly m or e d etail about the guards’ efforts to get h i m t o cooperate with their investigation and their efforts to persua d e h i m to testify against Bruce.

Rush told the defense team that H ayes was p art of a group of officers who threatened to keep Ru s h in segregated housing unless he testified at Bruc e ’ s trial. According to Rush, the sam e group threatened to arrest Rush’s fam ily and friends. Devonne R andolph, the inm ate Jones and his wife i n t e n d ed to visit on the day they were stopped at the checkpoint, d id not testify at Bruce’s trial but Randolph told the defense team in a post-trial interview that rum ors am ong inm ates and staff suggested it was “comm on knowledge” that Hayes also sm

uggled drug s into Atwater while he was

em ployed there. Randolph described correctional officers at Atwater u sing m

uch m ore extrem e m easures to persuade him
to give inform ation about “whatever cops was allegedly breaking the law”—including threatenin g to physically assault him if he did not cooperate with the investigation. B ut Randolph told the defense team th at he had no personal interactions with anyone called Officer Johnson, and that he did not know David Bruce.

Bruce m oved for a new trial based on Brady v. Maryland
, 373 U.S. 8 3 (1963), arguing the govern m ent violated its obligation to produce exculpatory evidence. Bruce argued the governm ent purposely failed to disclose that Hayes was

a target in the V ictorville investigation, and that m anyU NI T E D S TAT E S V

. B R

U C E 9

inm ates had lodged com plaints against Hay es while he worked at Atwater. T he governm ent urged the court to deny
the m otion. It argued it had no obligation to produ c e th e

ev id en c e c o n cernin g H ay es b ecau se F ederal Rule of E v id e n ce 608 would have prevented Bruce from using i t for im peachm ent purposes. The g overnm ent also argued the evidence of H ayes’ m isconduct did not negate the plethora o f evidence against Bruce, and that the governm ent had no

reason to know the extent of Hayes’s i nvolvem ent in the Atwater investigation because the investigation r eports contained little m ention o f Hayes. Th e d i strict court agreed with th e governm ent. It ruled the p reviously undisclosed inform ation did not und e rm ine the court’s confidence in Bruce’s verdict, and denied the m otion for a new trial. Bruce tim ely appealed.

W e have jur i sdiction pursuant to 28 U.S.C. § 1291. W e affirm the district court’s orders adm ittin g the identification evidence and denying Bruce’s m otion for new trial.

II.

W e review de novo “[t]he constitutionality of pretrial identification procedures.” U nited S tates v

. Carr
, 761 F.3d 1068, 1073 (9th Cir. 2014). W e likewise review de novo the denial of a m otion f

or a new trial arising f rom the
governm ent’s duty to produce exculpatory evidence p ursuant to Brady

. 1 United States v. Pelisamen
, 641 F.3d 3 99, 408 (9th Cir. 2011).

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

c orrect standard of review for these appeals. See United S t a tes v. Endicott , 803 F.2d 506, 514 (9th Cir. 1986). T he outcom e here does not depend on the standard of review.U NI T E D S TAT E S V

. B R

U C E 10

III.

W e first address Bruce’s argum ent that the district court erred by allowing the governm ent to adm it e v i d e nc e that Jones identified Bruce. In the d istrict court, B ruce argued Jones’s identification was unreliable because Jones identified Bruce under circum stances that were im pe rmissibly suggestive. Specifically, after Jones described Officer Johnson wearing a Steelers’ hat, he was shown a Facebook
p ho to in which Bruce was the only one wearing a Steelers’ hat, and he selected Bruce from the photo. 2 The district court

wa s not convinced, and it d enied the m otion to ex cl u d e Jones’s identification of Bruce. T he court r e asoned the circum stances in Bruce’s case were unlike those in which witnesses testify after one brief exposure to a suspect during the comm issi o n o f a crim e or while witnessing a startling
event. Rather than resting o n a single, q uick view, Jones was in close p roxim ity to “Officer Johnson” on at least two p rior occasions when the two m et to pass contraband. The court determ ined Jones was cap ab le o f p ro v iding reliable testim ony about whether Bruce was the person he m et without being unduly influenced by the Facebook photo.

To review the constitutionality of a pretrial identification
p rocedure, we consider whether the “procedure was s o im perm issibly suggestive as to give rise to a very substantial likelihood of irreparable m isident ification.” Simmons v. United States
, 390 U.S. 377, 384 (19 6 8 ) ; s ee also N eil v. Biggers
, 409 U.S. 188, 198 (1972) (“It is the likelihood o f

m isidentification which violates a defendant’s right to d ue

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

accom p anied Thom as t o the m eetings w ith Officer Johnson, or was otherwise able to identify him

.U NI T E D S TAT E S V

. B R

U C E 11

process

. . . .”). Three factors guide our review: (1) whether “the p retrial identification pr ocedure was im perm issibly suggestive”; (2 ) whether “it was sufficiently reliable such that it does not im

p licate the defendant’s due process rights”; and (3) “ e v e n if the pretrial identification procedure was suggestive and the identification was unreliable, this court []

exam ine[s] the d istrict court’s fa i l ure to exclude the identification for harm less error.” Carr
, 7 61 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 o f

m iside nt i fi cation. U

nited States v. Montgomery
, 150 F.3d 983, 992 (9th Cir. 1 9 98). W e exam ine the totality of the circum stances to determ ine whether an identification procedure was unduly sugg e s tive. United S tates v. Bagley
, 772 F.2d 4 82, 492 (9th Cir. 1 985); Neil
, 409 U.S. at 196. Am ong other factors, w e have conside r e d the w itness’s opportunity to view the person being identified, the w itness’s degree of attention, the ac c ur acy of the w itness’s p rior description, the level o f certainty dem o n strated by the witness
at the confrontation, and the length of tim e between the p rior observation of the suspect and the confrontat ion. Neil
, 409 U.S. at 199–200. “Any weaknesses in eyewitness identification testim o ny can ordinarily be revealed by counsel’s careful cross-exam inat i o n of the eyewitnesses.” United S tates v. Labansat
, 94 F.3d 527, 530 (9th Cir. 1996).

Bruce argues that th e use of the single Facebook photo violates longstanding precedent condemni ng identification techniques that focus attention on o nly o ne person. He argues such techniques are inherently suggestive and that the use o f the Facebook photo was especially suggestive i n this case because, according to Bruce, he and Hayes look a like: bothU NI T E D S TAT E S V

. B R

U C E 12

have Hawaiian and Caucasian ancestry and “nearly identical body styles.” Bruce p o ints out that Jones’s trial testim ony

wa s i n co nsistent about whether he told the Atwater officers that Officer Johnson always wore a hat, and he ar g u e s that Jones m ust have guessed about Johnson’s h eight because Johnson was sitting in his car both tim es Jones m et with him

.

Bruce is correct that Jones was uncertain in hi s trial testim ony about whether he told the officers who stopped him that Officer Johnson always wore a hat. Jones wa s a l s o unsure about whether he had said the hat was a Steelers hat. And Jo n es testif

ied that Officer Johnson was about “five-four, five-five,” only to later adm it that he could not be sure of this detail because he had never seen Officer Johnson standi n g

. 3 Bruce contends these inconsistencie s in Jones’s trial testim ony show he was n ev e r sure of his identification and that the evidence of Jones’s identification should hav e been excluded for this reason. W e disagree.

W e are persuaded the d istrict court reasonably concluded the u se 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 crim e in
progress, Jones ventured out to m eet with “Officer Johnson”

on two o ccasions and v oluntarily got into his car both tim es. The two m en were in close p roxim ity and the second m eeting took p lace just 15 days b efore Jones was s t opped and questioned at the checkpoint. The Atwater officers testified that Jones identified Bruce f rom the photo without hesitation, and Jones testified that he was certain of the identification at the tim e he m ade it in 2015. Jones explained to the jury that before h e was shown the Fa c ebook photo, he accurately

3 The record indicates Bruce is five-feet ten-inches tall.U NI T E D S TAT E S V

. B R

U C E 13

described d etails concerning Officer Johnson’s beard, h air color, body type, and clothing. Jones al s o r e called that Officer Johnson drove a black Jeep Cherokee.

Mor e th an three years passed between the day Jones identified B ruce from the Facebook photo and the day Jones testified at B ruce’s trial. The jury was abl e t o consider whether the passage of tim e m ay have accounted fo r th e discrepancies between the identification Jones m ade in 2015 and the d etails he was able to recall at trial. The jury w as also ab le to consider defense counsel’s cro ss-ex amin atio n o f Jo n e s and it heard the testim ony of oth e r witnesses who had been
p re sent 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 adm ission o f identification evidence because jury heard cross-exam ination of identifying witness). Certainly, the jury had reason to question Jones’s cred i b i lity because it knew investigators suggested to Jones that he an d h is wife could avoid charges if Jones cooperated, an d th e jury knew Jones was eager to cooperate. Bruce contends that Jones’s description o f Johnson m atched Hayes as well as Bruce, but he did little to develop or support this argum ent in the district court and the record does not allow us to m eaningfully assess this
comp ar is o n on appeal. Even if the Facebook photo was suggestive, our con s i d eration of the totality of the circum stances persuades us that the district court did not err by adm itting this identification evidence.

IV.

Bruce next argues the district court erred by denying his

m otion for a new trial b ecause the governm ent violated BradyU NI T E D S TAT E S V

. B R

U C E 14

by failing to produce evidence o f Hayes’s m isconduct. 4 The
governm ent’s pretrial m otion sought an order perm itting it to not disclose: (1) over sev enty inm ate co m p laints about Hayes, including som e that alleged physical abuse; (2) th at Hayes had been charged with dom estic violence and was arrested for violating a protective order; (3) that two other investigations again st Hayes were pending for physical abuse of inm ates and f or threatening inm ates; and (4) that a s o f July 2018, Hayes w as being investigated for sm uggling contraband drugs into an unspecified prison, and had been o b s erv ed

m eeting an inm ate’s girlfriend in a Ho me Depot parking lot and accepting a s ma l l package from her. The m otion disclose d that an inm ate instructed h is g irlfriend to m eet an orange SUV with “Vegas plates” in a p arking lot and that the description of the vehicle m atched o ne that Hayes own ed. The m o tion acknowledged that Hayes had been present at the Atwater checkp o i nt in 2015 and helped search Jones’s car, but it argued the inform ation about Hayes’s alleged

m alfeasance need n o t be disclosed because o ther witnesses could testify about the contraband found in Jones’s car. 5 Under a heading titled “Expected De fense Argum ents,” the
governm ent’s m otion only stated tha t i f the evidence regarding Hay e s were disclosed to the defense, the defense

m ight seek to call h im for the sole purpose of bringi ng out i mpeachm ent evidence. The governm ent asserted th at Evidence Rule 608 would not allow the evidence to be used

4 Bru ce also m ade p assing m ention of Giglio v. United S tates , 405 U.S. 150 (1972), and United States v. Henthorn
, 931 F.2d 29 (9th Cir. 1991), but on appeal, he fram es his claimas a Bradyargum ent.

5 On appeal, Bruce repeatedly asserts that Hayes found t h e contraband in Jones’s car, but as the district co urt re c ognized, t he record shows a different officer found the drugs.U NI T E D S TAT E S V

. B R

U C E 15

in this way. The m otion did not anticipate any other

ar g ume nt s th e d e fe n s e mi g h t r a i s e r e g ar d i n g th e discoverability of the withheld evidence. 6

Bru ce filed a m otion for new trial after H ayes was indicted. The m otion argued the governm ent had been aware that Hayes was a target in the Vi c t o rv i lle investigation and that it violated i ts duty to disclose this inform ation. More specifically, Bru c e charged the governm ent “purposefully crafted” its case to avoid relying o n Hayes so it c o u ld withhold evidence reinforcing B ruce’s theory that a different culprit w as responsible for sm uggl i n g contraband into Atwater. See U.S. v. Bag le y , 4 73 U.S. 667, 676 (1985). Bruce cited post-trial interviews with inm ates Rush and Randolph as proof that Hayes had been extensively involved in the Atwater investigation and contended the governm ent’s pre-tria l mo tion left the d istrict court in the dark by

m inim izing Haye s ’ s involvem ent in the investigation into Bruce’s sm

uggling. In response, the g overnm ent conceded it had intentionally avoided calling Hayes as a witness because it knew Hayes was subject to being imp e ached, b ut the
governm ent m aintained it had complied with Brady

. During the hearing on Bruce’s m otion for new trial, the district court took issue w ith th e governm ent’s pre-trial

6 But see D EP ’ T O F JU S TICE , P O LICY REGA RD IN G D IS CLO S URE O F E X C ULP A TO RY A

N D I M P EA CH M EN T IN F O RMA TION : D IS CLO S U RE O F
EX CUL P A T O RY A

ND IM P EA CH M EN T IN F O RMA TION BEY OND THA T WH I CH IS
CON S TITU T IONA LLY A N D LEGA LLY REQ UIRED , 9-5.001(C) (2020), h ttp s : //w w w

.j u s t ic e

. g o v/

j m/ j m- 9

- 5 0 0 0 -i s s u e s -re l a t e d -tri a l s-a n d-o th e r-c ourt-proceedings #:

~ : t ex t = B ra dy %2 0 v

. , m a t e ri al%20to%20guilt%20or% 2 0 p un i shme nt

. ( r eq

u i ri n g d i scl o su

r e o f qualifying evidence without regard
to adm issibility). The sam e p olicy re quires d isclosure of qualifying evidence without regard to m ateriality. Id.U NI T E D S TAT E S V

. B R

U C E 16

description of the role Hayes p layed in the Atwater investigation. The court d escribed the g overnm ent’s pretrial

m otion as cre at i n g “the im p ression that

. . . Hayes was just

one o f the officers who happened to be present at the

. . . checkpoint,” and observed that the governm ent’s p re-trial

m otion “le[ft] out any o ther involvem ent by Hayes ” i n the investigation. Th e c o urt questioned why the governm ent presented such sparse details in its pre- tr i a l m otion, and suggested tha t i t mi ght have “thought a little harder” about the mo t ion had it known the full extent of Hayes’s involvem ent. The governm ent a gain conceded that “additional facts [] could have been provided” in the ex parte

m otion, but it argued the undisclosed inform ation d id not satisfy Brady ’s m ateriality test because it did not negate any of the evidence against Bruce. The governm ent stressed that it understood Haye s had played o nly a sm all role in developing th e c a s e against Bruce at the tim e it prepared its

ex parte m o tion. The governm ent also repeated its argum ent that B ruce would not h ave b een able to introduce evidence o f Hayes’s m isconduct.

The d istrict court agreed w ith the gove rnm ent that there had been n o Brad

y violation. The court ruled there was “overwhel mi ng evidence that support[ed] the jury’s verdict [against Bruce] com

pletely and totally,” and it p o i nted out that no witness had recanted his trial testim ony, and that the post-trial interviews d id not controvert any of the
governm ent’s other evidence. T he court found “nothing to support” B ruce’s theory th at Hayes was the real perpetrator at Atwater, and it denied Bruce’s m o tion for new trial.U NI T E D S TAT E S V

. B R

U C E 17

A

.

In Brady v. Maryland
, the Suprem e Court h eld that prosecutors m

ust disclose to the defense “evidence favorable
to an accused

. . . [that] is m aterial either to guilt or to punishm ent” prior to trial. 373 U.S. at 87. This duty extends “irrespective of the good faith or bad fa i th of the prosecution.” Id. W e h ave explained that f ailing to disclose

m aterial, f

av o rable evidence violates due process because it

com prom ises the int e grity of the d efendant’s trial. United States v. Shaffer
, 7 89 F.2d 682, 687 (9th Cir. 1 986). For this
reason, “[t]h e p r osecution’s d uty to disclose favorable evidence is not dependent upon a r e quest from the accused, and even an inadvertent failure to disclose m ay constitute a violation. ” Ba iley v. Rae
, 339 F.3d 1107, 1113 (9th Cir. 2 0 03) (citing United States v. Agurs
, 427 U.S. 97, 1 0 7 (1976)).

The second part of the B rady test—that the non-disclosed evidence b e “m ate r ia l ”—lim its B rady’s reach. See id. (“To be sure, not every violation of the duty to disclose constitutes

a Brady violation.”). “[T]h e re is never a real ‘ Brady violation’ unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evi d e nce would have produced a d ifferent verdict.” Strickler v. Greene
, 527 U.S. 263, 281 (1999). “A ‘reasonable pr obability’ is a probability sufficient to underm ine con fi d ence in the
outcom e.” Bagley
, 473 U.S. at 682; see also Kyles v. Whitley
, 514 U.S. 419, 434 (1995).

To succeed o n his Brady c l aim
, Bruce was required to show: (1) the evidence at issue was favorable to him , either because it was exculpatory or im peaching; (2) the evidence

was suppressed by the State, either willfully o r inadvertently;U NI T E D S TAT E S V

. B R

U C E 18

and (3) that he was p rejudiced. Shelton v. Marshall
, 796 F.3d 1075, 1083 (9th Cir.) (quoting S trickler
, 527 U.S. at 281–82) amended on reh’g
, 806 F .3d 1 011 (9th Cir. 2 015). Because th e re is no doubt the governm ent did not disclose th e challenged evidence, we c onsider only whether it was exculpatory and m aterial.

B.

Bruce identifies two categories of undisc losed inform ation from the governm ent’s m o tion in lim ine that he contends are e x c u l patory: (1) evidence that Hayes was a target of an investigation into a very sim ilar sm uggling ring
at Victorville; and (2) evidence showing that num erous inm ate com

plaints had been m ade against Hayes prior to the Bruce investigation. S om ewhat m ore obliquely, Bruce suggests the governm ent should have disclosed that Hayes pressured som e inm ates to offer evidence against Bruce.

Exculpatory evidence includes evidence that is favorable
to the defense, m eanin g “evidence that tends to prove the innocence of the defendant.” Amado v. Gonzalez
, 758 F.3d 1119, 1134 (9th Cir. 2014); United S tates v. Cano
, 934 F.3d 1002, 1023 (9th Cir. 2019) (observing that Brady requires the
g overnm ent disclose “m aterial, exculpatory, or otherwise helpful” evidence). “Any evidence that would tend to call the
governm ent’s case into doubt is favorable for Bra d y purposes.” Milke v. Ryan
, 711 F.3d 9 98, 1012 (9th Cir. 2 013) (citing Stri c kler , 527 U.S. at 290); see a lso United States v. Bundy
, 9 68 F.3d 1019, 1038–39 (9th C ir. 2020) (citing Kyles
, 5 14 U.S. at 4 37) (evidence showing tactical units surrounding property where defendants w ere engaged in stando ff with federal officers, and evidence showing gov e rnm ent

s urveillance of the property, was exculpatory because i tU NI T E D S TAT E S V

. B R

U C E 19

rebutted g overnm ent’s theory that defen dants did n ot fear governm ent snipers). “To say that evidence is ‘exculpatory’ does not m ean that it bene f its the d efense in every regard o r tha t the evidence will result in the defendant’s acquittal.” Bailey
, 339 F.3d at 1115. R ather, “exculpatory” c onn otes a broader category of evidence that, “if disclosed and used effectively, [] m ay m ake the difference betwe e n conviction and acquittal.” Bagley
, 473 U.S. at 6 76; see Bailey
, 339 F.3d
at 1115 ( g r anting new trial where governm ent failed to disclose reports ca sting doubt on star witness’s testim ony, and rejecting ar g ument that certain passages “som ehow negate[d] the docum ents’ exculpatory nature”).

The obligations i mp o sed by Brady are not lim ited 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
governm ent’s behalf” as part of their “responsibility to gauge the likely n et effect of all such evidence” to the case at h and. Kyles , 514 U.S. at 437.

Here, the g o vernm ent argues the withheld evidence concerning Hayes was not exculpatory because it “ wa s not

m aterial to B ruce’s guilt or innocence” and did not negate the oth e r e v idence against Bruce. This conflates Brady ’s exculpatory and m ateriality requirem ents. 7 Bagley
, 473 U.S.
at 676. On ap p e al, the g overnm ent suggests the evidence would n ot have been adm issible pursuant to Rule of Evidence

7 The g overnm ent cites United States v. Agurs
, 427 U.S. 97 (1976) in support of its argum ent. Agurs addresses m ateriality, not the standard f o r determ ining whether evidence is exculpatory, and t he thre e m ateriality standards articulated in Agurs h ave si n c e be e n overruled. United States v. Shaffer , 789 F.2d 682, 687 (9th Cir. 1986).U NI T E D S TAT E S V

. B R

U C E 20

401 or Rule 403, but this argum ent also m isses the m ark. The standard for relevance is easily m et because evidence that o ne of Bruce’s co-workers was accused of e n gaging in a very simi l ar prison sm

uggling ring m akes it som ewhat m ore probable that a third party was responsible for th e c r im es Bruce was accused o f comm itting. Fed. R. Evid. 4 0 1. The
governm ent did not raise a Rule 4 03 objecti o n in the trial court, thereby forfeiting that issue.

In the trial court and on appeal, the governm ent’s response failed to acknowledge it s broader ethical responsibility. See Turner v. United States
, 1 37 S. Ct. 1885, 1893 (2017) (observing “governm ent’s interest in a crim inal prosecution is not that it shall win a case, but that justice shall be done”); see also K

yles
, 5 1 4 U. S. at 437–40 (recognizing “the prosecu t i o n’s responsibility for failing to disclose known, favorable evidence rising to a m aterial level o f im portance is inescapable” and for that reason, “a prosecutor anxious about tacking too close t o the wi n d” w ill err on the side of disclosure in order to “justify trust in the prosecutor” and to “preserve the crim inal trial

. . . as the chosen forum for

asce rt a i ning the truth about crim inal accusations”); see also i d

. (observing the ABA Standards f or Crim inal Justice “call generally f

or prosecuto r ial disclosures of any evidence tending to exculpate or m itigate”).

Bruce persuas ively argues that evidence of Hayes’s

sm uggling at Victorville was exculpatory because it

s up p o rted the defense theory that a third party wa s responsible for the crim es h e was accused of comm itting. See United States v. Jernigan
, 492 F .3d 1 0 5 0
, 1054 (9th Cir. 2007); Kyles
, 514 U.S. at 421 (observing that Brady “turns on the cum ulative effect of all such evidence suppressed”). He
argues this is particularly so if the evidence that Hayes was aU NI T E D S TAT E S V

. B R

U C E 21

targ e t in th e V icto rville investigation is viewed in conjunction with the other withheld evidence concerning Hayes.

The g o v ernm ent strenuously argues it w as entitled to structure its case to avoid producing evidence that could have been used to im

peach Hayes and that it was free to do so because it had no obligation to call Hayes as a witness. B ut the fact the governm ent took th e s tep of filing an ex parte

m otion seeking the court’s perm is sion not to disclose evid en ce o f H ay es’s m isco n d u ct un d ercu

ts th e suggestion that
th e g o v ernm ent 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 i n order to com

ply with Brady ). W e agree the governme nt h ad no obligation to call Hayes as a witness, b ut the
governm ent still bore the burden of investigating whether potentially exculpato ry evidence existed. See Browning v. Baker , 875 F.3d 444, 459 (9th Cir. 2017) (quoting Strickler
, 527 U.S. at 2 8 0) (em

phasizing prosecution’s special status in crim inal justice systemheightens its burden of disclosure).

The governm ent separately argues it cannot b e held responsible for disclosing the extent of Hayes’s involvem ent in the Atwater investigation because the governm ent had no
way of knowing that Hayes had contact with Atwater inm ates who witnessed or participated in th e Atwater schem e. Our

case law also f

o recloses this argum ent. “Because prosecutors

are in a ‘unique position to obtain inform ation known to other agents of the governm ent,’” the y have an obligation to “disclose what they do not know but c o uld have learned.” Cano
, 934 F.3d at 1023 (alterations om itted). Pros ecutors cannot turn a blind eye to their discovery obligations.U NI T E D S TAT E S V

. B R

U C E 22

W e are not persuaded b y the gove rnm ent’s separate contention that because Hayes and Rush we r e identified in the docum ents the governm ent did produce, it w as incum bent
upon the defense to investigate Hayes and Rush and uncover potentially favorable evidence itself. This argum ent overlooks that Bruce’s counsel had no reason to suspect that further discovery into Hayes’s partic i p ation in the Atwater investigation could have yielded inform ation supporting the defense theory. Kyles
, 514 U.S. at 437.

Our conclusion that the governm ent fell short of m eeting its Bra d y d iscovery obligation here is influenced by the ex p arte motion the governm ent filed b efore trial. In it, the
governm ent m em o r i alized its awareness that H ayes was present when Jones’s vehicle was stopped and that Hayes was under investigation for introducing contraband into another federal prison in a very sim ilar sm uggling operation. Hayes

was observed m eeting an inm ate’s gir l friend in a Hom e Depot parking lot and accepting a sm all package from her. The m otion also disclosed to the court that the governm ent possessed an em ail exchange in which the inm ate instructed his girlfriend to m eet an SUV m atching the description o f Hayes’s SUV. In short, by the tim e the governm ent filed its

m otion seeking perm ission to withhold evidence of Hayes’s alleged m isconduct, it knew Hayes was suspected of running

a prison sm

uggling ring using the sam e m eth o d Bru c e was accused of using at Atwater. In addition, the governm ent was undoubtedly aware that Hayes held a supervisory position at Atwater while Bruce’s inv e s tigation was ongoing, and the
governm ent knew that its m ain trial witness, Rush, had been

m oved to segregated h ousi n g and questioned by prison officials. Whether m em orialized in an investigation report o r not , the g overnm ent was certainly in a position to know Hayes was one of the officers who q uestioned R

ush. Indeed,U NI T E D S TAT E S V

. B R

U C E 23

Rush volunteered in his trial testim ony that Hayes w as o ne o f the officer s who m oved him to segregated housing and threatened to k e ep him there if Rush d id not testify against Bruce. Despite the stark sim ilarities between th e Atwater schem e and what was known about the sm ugg l i n g at Victorville, the record d oes not show, and the go v e rnm ent does not argue, that it ever followed up t o learn what role Hayes played in the Atwater i nv e stigation, nor that the
governme nt took any steps to determ ine whether the two

sm uggling rings were in fact unrelated. 8

The governm ent’s pretrial subm ission to the district court lim ited its “Expected Defense Argum ents” to a one-sentence assertio n that if the evidence were produced, the defense

m ight seek to call Hayes f or the sole purpose of bringing out im peachm ent i n fo rm ation. Neither the ex parte m otion nor the transcript of the argum ent held on Bruce’s m otion for new trial show the governm ent ever took any ste p s t o v erify that the two sm

uggling rin gs were separate. Nor does the
governm ent argue o n appeal that it considered whether exculpatory m aterial m ight exist. The g overnm ent collapses Brady ’s three-part test into an exam ination of m ateriality.

The district court was not per s u a d ed the withheld

e v idence was exculpatory, largely because Hayes wa s

8 Post-trial, Randolph suggested it was “com m on knowledge” Hayes

was involved i n sm

uggling at Atwater. But the record on appeal does not show whether Randolph ever adm itted to having personal know l edge about any sm

uggling. Nevertheless, contrary to the governm ent’s suggestion, it i s plain the g overnm ent knew the Victorville operation was

rem arkably sim i lar to the one at Atwater and the governm ent could have learned that Hayes played a role in the Atwater investig a tion t hat went beyond the checkpoint stop and included h aving contact with inm ates who were accused or adm itted to participating in the schem e.U NI T E D S TAT E S V

. B R

U C E 24

accused o f sm

uggling after Bruce’s sm uggling had b e en uncovered and because Hay es w as accused o f sm uggling at Victorville r ath er than Atwater. Respectfully, we d isagree. The responsibility im

posed by B rady includes looking beyond evidence in the p rosecutor’s f ile; there were striking sim ilarities between the two sm uggling operations; Hayes

was directly involved in the Atwater investigation that led to Bruce’s arrest and had access to som e o f the w itnesses who testified against Bruce; and Bruce’s trial theory argued

som eone else was responsible for the sm uggling at Atwater. Under the facts presented, we c on c lude this evidence was exculpatory within the m eaning of Brady and at the very least the governm ent was required to investigate it.

C.

W e evaluate the trial as a whole to d eterm ine whether the “adm ission of the suppressed evidence would have created a reasonable probability of a different result.” United States v. Price
, 566 F.3d 900, 9 1 1 ( 9th Cir. 2009) (internal quotation

m arks om itted). “In considering whether the failure to disclose exculpatory evidence underm ines confidence in the
outcom e, judges m

ust undertake a careful, balanced evaluation of the nature and strength of both the evidence the defense was prevented f

rom presenting and the evidence each side p resented at trial.” Jernigan
, 492 F.3d at 1054 (internal quotation m arks om itted); see Comstock v. Humphries
, 7 86 F.3d 701, 711–12 (9th Cir. 2 015) (reversing conviction where lack of d irect evidence com bined with suppression o f

a w i t n e s s ’ s “ e x p r e s s e d d o ub t s a n d r e c o l l e c t i o n s ” “substantially dim inished, if not defeated” the state’s ability
to prove guilt beyond a reasonable d oubt). Evid en c e is

some t im es considered m aterial if the governm ent’s other evidence at trial is circum stantial, or if defense counsel is ableU NI T E D S TAT E S V

. B R

U C E 25

to point out significant gaps in the governm ent’s case through

cross-exam ination, or if witnesses p rovided inconsistent and inaccurate testim ony. See Bail ey , 3 3 9 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 d ecisio n s in Jernigan and Price are instructive. In Jernigan
, we r emanded for a new trial because the
g ov ernm ent did not disclose the existence of another b ank robber for whom the defendant “ m ay well have been

m ist aken.” 4 92 F.3d at 1055. When considered with other i n c o n sistencies in witness testim ony and the lack o f direct

ev id en c e a g ain st Jernigan, the om itted evidence suggested th e defendant m ay h ave been innocent. In Pr i ce , our court

rem anded for a new trial b ec ause the prosecution failed to disclose its star witness’s p ast convictions, which could have been used to und e rmine his credibility. The governm ent’s only direct evidence o f Price’s guilt cam e from this w itness’s testim ony and in its closing argum ent, the governm ent urged that the witness had no reason to lie. W e explained that this created a “ce ntr a l w eakness” for the defense. 566 F.3d at 9 1 3

– 14. Coupled with Price’s showing that the governm ent’s

o th er evidence was circum stantial and inconsistent, we concluded the undisclosed inform ation was m aterial. Id.

Bruce argues the inform ation the govern m ent failed to disclose was m aterial because it would have allowed the jury
to find reasonable doubt about whether Hay es was responsible for the sm

ugglin g o p er ation at Atwater. He contends there is a substantial l ik elihood the verdict would have been different if the jury had heard th at Hay e s was suspected of sm

uggling at Victorville and k new that, as a supervisor at Atwater, Hayes had access to the witnesses whoU NI T E D S TAT E S V

. B R

U C E 26

testified against him

. B ruce also suggests the invest igation reports suspiciously failed to docum ent Hayes’s involvem ent in th e Atwater investigation, and m aintains this f act could hav e b e e n used to buttress his defense theory that there was reasonable doubt about his gu ilt. S ee Kyles
, 5 14 U.S. at 420 (holding th e State’s disclosure obligation turns on the

cum ulative effect o f all suppressed evidence favorable to the defense).

Our task is to com

par e th e evidence against Bruce with the gaps in th e e vi dence presented to the jury to determ ine whether the undisclosed evidence u n d ermines our confidence in the outcom e. See Price
, 566 F .3d at 911. W e conclude it does not. First, though the jury did not have all the details, it

was aware that R

ush was pressured to testify aga i n st Bruce. Rush told the jury as m

u ch, volunteering that Hayes w as o ne of the officers who m o ved 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 girl fr i e n d and h is relatives during their investigation

. Th e jury was not left with conflicting
tes tim o ny about the prison officials’ efforts to uncover the
extent of the sm

uggling ring. The investigators corroborated Rush’s account that he was m oved to segregated housing, and they testified that another inm ate expressed that investigators threatened his m other and b rother 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 n or Rush recanted their testim ony about Bruce’s involvem ent. By the district court’s accoun t , Rush “very credibly claim ed” at trial that he and B ruce were fr i en ds, which was why Rush resisted cooperating with investigators.U NI T E D S TAT E S V

. B R

U C E 27

The district court described Rush as dem onstrating “no joy in
t estifying against Mr. Bruce,” and observed that Jone s wa s “quite, quite credible,” and that his testim ony h ad been “d ev astating ” t o B ru ce. C o n sid e r ab le circu m stan t ial ev id e n ce also im plicated Bruce. Atwater investigators described Jones’s account of the checkpoint stop and that Bruce showed
up, at the appointed tim e, for the m eeting Jones arranged after he agreed to cooperate. Representatives f rom W estern Union and T-Mobile linked Bruce to m o netary transactions from Atwater inm ates’ friends and fam ily m em bers, and also lin k ed Bruce to the cell phone u sed to comm unicate with Jones.

Bruce testified that his financial dealings with i nm ates showed o nl y th at he engaged in sports gam bling with them
, but the jury was not required to credit this testim ony. Bruce did not deny that he had accepted m oney from inm ates, o r that the cell phone was used to arrange m eetings to pass the contraband. Unlike Pr i c e , the governm ent’s case d id not bank on a single s t ar witness; Rush and Jones corroborated each other’s accounts and their testi mony was h eavily corroborated by other ev i d e nce. 566 F.3d at 913–14; see, e.g. , Comstock
, 786 F .3d at 711–12; Bailey
, 339 F.3d
at 1115–16. T he weight and fo r c e of the evidence against Bruce sets this case apart from others in which we have f ound Brady ’s m ateriality elem ent satisfied.

Tho u g h B ru ce su g g ests th e w ithh eld evidence would have

o pe n e d the door for the jury to hear that Hayes wa s

sm uggling drugs into Atwater, he offers no real evidence that Hayes did sm

uggle contraband into Atwater. Bruce’s

s p eculation that Hayes m ay have been left alone with J o ne s

or his wife fares no better. He implies that Hayes m ay have had an opportunity to influence their statem ents , but theU NI T E D S TAT E S V

. B R

U C E 28

i n v e s t i g a t i n g o f

f i c e r s ’ t e s t i m o n y s u g g e s t s s e v e r a l investigators w ere pres e nt when Jones and h is wife were questioned.

Be c ause we view the trial as a whole, our confidence i n the verdict is not underm ined by the governm ent’s failure to discl o s e that Hayes was a subject of an investigation at Victorville, that num erous i nmat es had com plained about him
, and the extent of h is involvem ent i n the Bruce i nv es t igation. T he district court did n ot err by denying Bruce’s m otion for a new trial.

AFFIRMED

.