In the

United States Court of Appeals

For the Seventh Circuit

No. 07-3348

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

EDDIE BANKS,

Defendant-Appellee.

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 05 CR 848—James F. Holderman, Chief Judge.

ARGUED MAY 28, 2008—DECIDED OCTOBER 9, 2008

Before EASTERBROOK, Chief Judge, and RIPPLE and WOOD,

Circuit Judges.

WOOD, Circuit Judge. This case illustrates the critical

role that the standard of appellate review can, and must,

play in our judicial system. As we explained in United

States v. Williams, 81 F.3d 1434 (7th Cir. 1996), “[it] is

difficult for nonlawyers to understand or accept . . . that

because the question whether to grant a new trial is

committed to the discretion of the district judge, as the
2 No. 07-3348

defendants rightly concede, United States v. Knox, 68 F.3d

990, 1000 (7th Cir. 1995); United States v. Maloney, 71 F.3d

645, 654 (7th Cir. 1995), it is possible for two judges,

confronted with the identical record, to come to opposite

conclusions and for the appellate court to affirm both. That

possibility is implicit in the concept of a discretionary

judgment.” 81 F.3d at 1437 (emphasis removed). In Williams, we found that one district judge did not abuse

his discretion when he refused to grant a new trial based

on the government’s use of perjured testimony, even

though we had found that a different district judge who

was trying other defendants involved in the very same

conspiracy also did not abuse his discretion when he

did grant a new trial based on exactly the same perjured

testimony. See United States v. Boyd, 55 F.3d 239 (7th Cir.

1995).

In the case now before us, defendant Eddie Banks was

charged in a multi-defendant indictment with four drugrelated counts (counts 1, 10, 30, and 31). A jury convicted

Banks on all four counts and made a special finding for

counts 1 and 10 that the conspiracy and distribution

offenses involved at least 500 grams but less than 5 kilograms of cocaine. Based on information that came to

light after the jury delivered its verdict, Banks moved for

a new trial. The district court granted a new trial on

count 10 and a new trial on the drug type and quantity

applicable to counts 1 and 10. The Government has appealed from those orders. Bearing in mind the fact that,

just as in Williams and Boyd, we are reviewing only for

abuse of discretion, we affirm.
No. 07-3348 3

I

A great deal of evidence was presented against Banks

in his drug trial. The Government collected numerous

recorded telephone conversations between Banks and

others relating to cocaine deals. Informant and drug dealer

Clarence Whalum testified that he sold cocaine to Banks

every two or three weeks in quantities ranging from over

two ounces to one kilogram, and that he participated in

a controlled sale of a kilogram of cocaine to Banks. There

was also police testimony describing surveillance of Banks

immediately after the purchase from Whalum. Officers

pulled Banks over for a traffic infraction, seized the

package that Banks had hastily stashed in his pants,

released him to protect the integrity of their investigation into the drug conspiracy, and then arrested him on a

later occasion. Finally, at the center of this appeal is the

expert testimony of Drug Enforcement Administration

(DEA) forensic chemist Theresa Browning, who testified

that she had tested the material in the package seized by

police and found that it was 999.1 grams of cocaine hydrochloride. The theory of the defense was that Banks was

not the person who was pulled over by the police in

possession of the package that later tested positive for

cocaine.

After the jury returned a verdict of guilty on all four

counts, the prosecution and defense learned for the first

time that Browning was under investigation at the time

of trial for professional misconduct, described further

below. Banks moved for a new trial based on the Government’s failure to disclose this impeaching information. The
4 No. 07-3348

district court concluded that a new trial was necessary

only on count 10 and the special finding of drug type and

quantity relating to counts 1 and 10, and it entered an

appropriate order, from which the Government has

appealed. See 18 U.S.C. § 3731, ¶ 1. (Banks’s convictions

under counts 30 and 31 for using a telephone to facilitate

a violation of the drug laws are not affected by the

district court’s order.)

Information brought out during a post-trial hearing

revealed that at the time she testified, Browning was

fighting off accusations about misuse, or possibly even

fraud, in connection with the use of her governmentissued credit card. As a federal employee, Browning was

entitled to have the card for purposes of covering

expenses related to her government employment—primarily travel expenses. Normally, before the due date for

payment on the credit card, the Government would deposit

directly into her bank account money to cover the expenses. She was required to use these funds to pay the

credit card bill, and timely payment was required. In

March 2006, however, Browning used the deposited

funds to pay for personal expenses and then had insufficient funds available when her government credit card

bill came due. This constituted misappropriation of those

funds. Browning waited until her next paycheck came

and then paid off the card, but her payment was one

week late. She had not requested an extension and did not

self-report this violation.

When the misconduct was discovered, Browning feared

that she would lose her job and asked her supervisor to
No. 07-3348 5

“keep the consequences at the laboratory level”—in other

words, not to let the higher-ups at DEA know about her

misstep. The supervisor did not honor this request, and

instead reported Browning’s violation to the DEA Office

of Professional Responsibility (OPR), which investigated

the matter. OPR interviewed Browning approximately

four months prior to her testimony in Banks’s trial, and

Browning heard nothing further about the status of the

investigation for a long time. She still knew nothing at the

time of her testimony at Banks’s trial, but she heard from

OPR a few days after the trial was over. In the end, the

only professional consequence she suffered from her

misconduct was the agency’s issuance of a letter of

caution warning her to make future payments in a timely

manner. The letter was issued on October 4, but Browning

did not receive it until October 20, after testifying

against Banks on October 17, 2006. The prosecutors did not

know anything about Browning’s problem until after the

trial.

II

Under Brady v. Maryland, 373 U.S. 83 (1963), the Government has a duty to disclose evidence favorable to the

defendant, whether the evidence is exculpatory or tends

to impeach a Government witness. Strickler v. Greene,

527 U.S. 263, 280 (1999). Nonetheless, a violation of this

duty, whether intentional or inadvertent, entitles the

defendant to a new trial only if the failure to disclose the

evidence resulted in denial of a fair trial. Id. at 281-82. The

latter condition is satisfied only when the suppressed
6 No. 07-3348

evidence is material, meaning when there is “a reasonable

probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been

different.” United States v. Bagley, 473 U.S. 667, 682 (1985).

The only point of dispute in this case is whether the

undisclosed information was “material” in the Bagley

sense of the term. The Government has not argued

that Browning’s testimony related only to the underlying

question whether the substance was really cocaine, and, on

that point, the defense was just as well positioned to test

it as the prosecution was. If the evidence about

Browning’s legal problems was material, then Banks was

entitled to a new trial. The district court held that the

fact that Browning was under investigation by her government employer at the time she tendered testimony

favorable to the Government in Banks’s criminal case

was material impeachment evidence with respect to the

guilt phase on count 10, and material with respect to the

sentencing factors of drug type and quantity for counts 1

and 10.

At oral argument, a member of the panel raised the

question whether the Brady rule should be invoked to

grant a new trial for non-disclosure of this type of impeachment evidence. The question is first whether we

should be focusing not on Browning but on the topic of her

testimony—the nature of the substance—and second,

whether the law draws any distinction between a

witness who may be lying about a verifiable subject and

a witness who may be lying about a non-verifiable

subject (such as a visual observation). Under the theory
No. 07-3348 7

(once again, not presented by the Government) that the

only question is whether the substance in the package

was really cocaine, one might ask what a new trial would

accomplish. If Banks had impeached Browning with this

evidence, then the Government now asserts that it would

simply have put a different expert on the stand (presumably one whose work could not be impeached, though

without a crystal ball, it is hard to be confident about that).

The Government did not proffer evidence to this court

that later tests have confirmed Browning’s chemical

findings. It has only alleged that Browning was the

second chemist to test the material and determine it to be

cocaine, but it has not provided either the name, the date,

the laboratory, or any other information about this supposed earlier test. Indeed, it supports this assertion only

by pointing to Browning’s testimony that she was the

second chemist to make such a finding.

If we are to acknowledge the possibility that Browning’s

conflict of interest led her to falsify her own chemical

analysis and commit perjury, we cannot rely on her own

testimony that her findings were corroborative of another

chemist’s. We note as well that reasonable people could

disagree about the effect of Browning’s troubles on her

testimony. Some might think that her credit-card misuse

might have prompted her to be especially careful when

she tested the substance, so that she could demonstrate

what a valuable employee she is. On that theory, the

missing evidence would not even have impeached her.

Others might think that her employment problems

might have caused her to rush the job and to say

whatever she thought the prosecutor wanted to hear,
8 No. 07-3348

counting on the fact that it probably was cocaine anyway.

But see United States v. Salgado, 519 F.3d 411, 412 (7th Cir.

2008) (dealer could not find genuine cocaine and was

planning to cheat buyer). The fact that there are at least

two plausible explanations indicates that the choice

between them was one for the district court to make.

We therefore save for another day any more thorough

exploration of the theory that, in evaluating motions for

new trial based on evidentiary problems, we must focus on

alternative ways that the objecting party might have

proved the point on which the witness was going to

testify, and that there is a distinction embedded in the

law between verifiable and nonverifiable observations.

Perhaps such a distinction would make sense. Perhaps,

every time either the Government or a defendant wants

a new trial based on a problem with an expert witness,

there should first be a hearing to see if an alternate expert

might have been produced by the affected side who

would have said the same thing as the tainted expert.

On these facts, it may have been better if the district court

had held such a hearing. But to acknowledge that is not

to say that the court abused its discretion by taking the

course it did. We thus proceed to consider the Government’s appeal on the basis of the facts and arguments

that were presented to the district court and briefed here.

III

In its effort to persuade us that the district court abused

its discretion in granting the limited new trial it did, the

Government first argues that the court applied the wrong
No. 07-3348 9

legal standard. According to the Government, the district

court collapsed the materiality inquiry into the definition

of impeachment evidence. What the district court said

was that the impeachment evidence was material because

it was

sufficient to cause a reasonable jury to question DEA

Forensic Chemist Browning’s credibility and reject, if the

jury chose to do so, her opinion as an expert due to the

bias she was harboring as a result of a desire to minimize the punishment she was yet to receive for her

unprofessional conduct that was the subject of the

undisclosed DEA scrutiny at the time of her testing

Government Exhibit 4-C and her testimony at the trial.

(Gov. Short App. 2) (emphasis added).

We do not read the district court’s remarks as the

Government does. The court’s comments must be understood in light of the evidence that had been introduced at

trial. Of the witnesses testifying, only Browning and drug

dealer Whalum had first-hand knowledge of the contents

of the package in question. Whalum, aside from being a

significant drug dealer and having entered into an agreement with the Government in exchange for his testimony

against Banks, also used a shocking amount of drugs on a

daily basis. (The evidence showed that he had an amazing

daily consumption of one to two fifths of hard liquor, at

least two pills of ecstasy, and ten to twenty marijuanafilled cigars.) A jury easily could have found that

Whalum’s memory and perception were compromised and

unreliable, and then rejected Browning’s testimony on

the basis of her possible bias. That would have left this
10 No. 07-3348

jury with no credible testimony about the nature of the

package.

The Government counters this inference with various

witnesses who testified about “the cocaine” without

objection from the defense, even quoting defense

counsel’s reference to “the cocaine” during closing. It

points out that the nature of the package was not even at

issue in the trial—identity was the only issue. Banks, it

says, just contested the Government’s claim that the

person who was eventually arrested (himself) was the

same one who was stopped by the police after the controlled sale, and from whom the package was seized. But

Banks based his strategic choice on the information

before him. Had he known about Browning’s problem,

he may have sought an independent test of the substance

in the package. (The Government may assume that the

reason Banks did not do so was because he already knew

what the outcome of such a test would be, but there is

no evidence in the record to support such a finding apart

from that of Whalum and Browning.) Even without

his own independent test, Banks would surely have used

the information about Browning to attempt to impeach

her testimony about the nature of the substance.

The Government also points out that Browning stated

during her testimony that she was the second chemist to

test the material, and that her findings were the same

as the findings of the prior chemist. This is not helpful.

As we have already noted, the materiality analysis

requires us to suppose that the impeachment evidence

would cause the jury to find that Browning willfully
No. 07-3348 11

falsified test results and committed perjury by testifying

that the substance was cocaine when it was not cocaine. If

all that is true, then the jury would be further entitled not

to credit her testimony that another chemist had tested

the material and come up with the same results. Thus, this

bit of Browning’s testimony about the prior chemical test

does not save the Government from a possible failure

of credible proof regarding the nature of the package.

The Government next argues that if Banks is allowed to

benefit from a hypothetical analysis of what his trial

strategy would have been had he known about the impeaching evidence, the Government should be allowed

to do likewise. The Government claims that, had it

known about the OPR investigation of Browning prior

to trial, it could easily have found another unimpeachable

chemist to test the sample and testify to its contents in

place of Browning. (For the post-trial hearing, it produced a declaration from a DEA director confirming the

availability of other chemists to conduct the test.)

Whether the Government’s prediction is true or not, this

point does not convince us that the district court applied

the wrong legal standard to the motion for a new trial. The

court was not required to accept on faith the Government’s assertion that its replacement chemist would have

been unimpeachable. While we hope that this is now true

of most, if not all, of the Government’s experts, experience

suggests that such an expectation might be too optimistic.

See, e.g., David Johnston & Andrew C. Revkin, Report

Finds F.B.I. Lab Slipping from Pinnacle of Crime Fighting,

N.Y. TIMES, Jan. 29, 1997, at A1. The district court was
12 No. 07-3348

entitled to make a discretionary finding that the opportunity to undermine the credibility of the chemist that the

Government did in fact call to testify sufficed to create

a reasonable probability of a different outcome in the case.

IV

Even if the district court did not apply the wrong standard, the Government argues that it still abused its discretion in finding that the impeachment evidence was

material.

We have already discussed the Government’s arguments

that the impeachment evidence was not material because

the presence of cocaine was not at issue in the trial, and

that a supposed prior chemist had, according to Browning,

already tested the substance and found it to be cocaine. The

Government also points to other circumstantial evidence

regarding the nature of the package, such as Banks’s

consciousness of guilt at the time of the seizure, given that

he had stuffed the package down his pants, and the fact

that he paid $14,000 for the package. This evidence was

helpful to the Government’s case against Banks, but it does

not carry such irrefutable force that we can say that the

district court abused its discretion in finding that rejection

of the chemist’s expert testimony would create a reasonable probability of a different verdict. The Government

also notes that the jury examined the package in the jury

room. While this examination may have allowed the

jurors to determine that the package weighed somewhere

in excess of 500 grams, we fail to see how a visual examination by lay—and presumptively law-abiding—jurors
No. 07-3348 13

would allow the jury to determine beyond a reasonable

doubt that the package contained cocaine as opposed to

some other look-alike substance.

The Government next claims that the impeachment

evidence was not material because the potential for bias

was exceedingly weak. First, it points out the “relatively

minor” nature of Browning’s offense. This is a subjective

judgment; the district court was not required to presume

that the jury would find the offense to be so relatively

minor that they would have no reason to believe that

Browning was concerned about her job. Indeed, Browning

admitted her concern about the matter and that she had

asked her boss to minimize the repercussions. That request

was denied; the supervisor thought the problem significant enough to report it up the chain of command to

the OPR.

Second, the Government notes that Browning worked

for the DEA, while Banks’s case was investigated by a

separate agency, the FBI. The DEA had no interest in

whether cocaine was found in the sample or whether

Banks was convicted or acquitted. Thus, the argument

goes, Browning would not be currying favor with her

employer by falsifying her chemical tests and committing

perjury on the stand—quite the contrary. In its reply brief,

the Government explains how the exertion of pressure on

Browning to testify falsely would require a rather farfetched and implausible theory of inter-agency governmental conspiracy. On the other hand, the relations among

government agencies and departments can be byzantine,

and the jury would not necessarily have followed the
14 No. 07-3348

Government’s argument. In particular, the jury might not

have bought the Government’s assertion that the two

agencies (both part of the Department of Justice, incidentally) were so insulated from one another that impropriety

was impossible. Indeed, the mere fact that the Government

concedes that the DEA investigation into Browning’s

misconduct was relevant to the question of bias (as opposed to merely a lack of credibility) is a concession that

it is plausible that Browning felt pressure to testify favorably to the Government because of her pending disciplinary action. We therefore cannot say that the district court

abused its discretion in finding that cross-examination

on this issue might have had a real impact on the jury’s

willingness to rely on Browning’s testimony (and thus

an impact on the jury’s finding with respect to the

essential element of the nature of the substance in the

package).

In summary, although acquittal may have been less likely

than conviction even if the impeachment evidence

had come to light in time, we cannot say that the district

court abused its discretion when it found that the information about Browning was material. The court thus

did not abuse its discretion in ordering a new trial on

count 10 and on the drug type and quantity issues relevant

to counts 1 and 10. For these reasons, we AFFIRM the

judgment of the district court.
No. 07-3348 15

EASTERBROOK, Chief Judge, dissenting. To establish a

violation of the due process clause, Banks had to show that

Browning’s credit-card problem was exculpatory evidence.

Even then, a new trial is appropriate only if there is “a

reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would

have been different.” United States v. Bagley, 473 U.S. 667,

682 (1985).

The district judge never decided whether the credit-card

evidence was exculpatory. His opinion, which covers less

than two pages, asserts that the evidence was impeaching

but does not say why. The judge must have assumed that

the credit-card problem gave Browning an incentive

to ingratiate herself with the DEA by identifying the

substance as cocaine whether it was or not, and that the

defense could have used this motive to undercut her

testimony. But that is hardly the only available inference.

Because Browning’s assertions could have been verified

or refuted by other evidence, her financial difficulties gave

her a reason to be extra careful, not a reason to commit

perjury. A chemist found to have lied about a substance’s

composition will be fired and may be prosecuted. Careless

analysis (short of perjury) will be less acceptable from

a chemist who is in hot water than from a chemist with

a spotless record. Defense counsel would have stepped

on a land mine by introducing the credit-card evidence,

only to have Browning reply “yes, because I was in trouble

for financial issues I took extra care to analyze this sample”; the prosecutor then could have elicited on re-direct

that chemists who misidentify a substance are disciplined
16 No. 07-3348

and reminded the jury that the defense could have had

the substance analyzed by a forensic chemist.

My colleagues say (slip op. 8) that when “there are at

least two plausible explanations [one impeaching and the

other not] the choice between them was one for the

district court to make.” I agree with this principle. Unfortunately, the district court did not make the choice. The

court simply assumed that the credit-card evidence would

have undermined rather than strengthened Browning’s

testimony. We can’t apply a deferential standard of

appellate review when the district court has not confronted the competing inferences and made a reasoned

choice. See, e.g., United States v. Beasley, 809 F.2d 1273 (7th

Cir. 1987)

If the evidence would have undermined Browning’s

analysis, a further question must be explored. What would

have happened had the prosecutor known about this

evidence and revealed it to the defense? The district court

assumed that Browning would have testified and been

impeached. But there is another possibility. The prosecutor

might have used a different chemist. Then no impeaching

evidence would have been before the jury, and the trial

would have proceeded exactly as it did. That replacement

chemist’s testimony would not have been undercut. This

is exactly what a declaration filed by the prosecutor

(Domagala Declaration at ¶6) says would have happened.

On this understanding withholding the credit-card information did not hamper the defense. It changed the

identity of the chemist but not the substance of any testimony.
No. 07-3348 17

According to the majority, the district court “was not

required to accept on faith the Government’s assertion

that its replacement chemist would have been unimpeachable.” Slip op. 11. I agree: Never is a district judge required to accept something on faith. Once again, however,

the problem is that the district judge did not even

mention this subject. No testimony was taken; no facts

were found; no discretion was exercised.

Nor could the district judge have rejected Domagala’s

submission. There is no contrary evidence. A judge cannot

preemptively disbelieve statements in an affidavit. At the

post-trial hearing when Browning testified about her

financial troubles, the district judge could have

demanded that the prosecutor produce Domagala or

other proof about what could have been done to replace

Browning. After entertaining evidence from both sides,

the judge could have made findings of fact. But that was

not done.

Everything I have said so far rests on arguments presented to the district court and reiterated in the prosecutor’s appellate brief. There are deeper problems with the

district court’s approach, however. Perhaps the prosecutor

thought it unnecessary to discuss them, so clear are the

errors I have mentioned. But they are still worth attention,

because they put the issues in perspective.

The premise of Bagley, which extended Brady v. Maryland,

373 U.S. 83 (1963), from primary exculpatory evidence

to material that could be used to impeach a witness, is that

a witness’s credibility can be vital to the strength of the

prosecution’s case. That will be so when the testimony
18 No. 07-3348

is not verifiable (the witness testifies to something seen or

heard, for example). It is not so when the witness’s contentions can be checked by a third party. If, for example, a

witness testifies that a particular document contains

particular language, the best way to find the truth is to

look at the document, not to inquire whether the

witness has a felony conviction or is in financial trouble or

has told a contradictory story to someone else.

Everything that Browning said could have been checked.

The question at hand was whether the seized substance is

cocaine, not whether Browning had analyzed that substance correctly (or was telling the truth about her own

analysis). Conviction (or acquittal) depends on what the

substance actually is. Cf. United States v. Moon, 512 F.3d

359 (7th Cir. 2008) (lab results are not “testimonial” under

the confrontation clause).

Brady applies only to evidence that is known to the

government but not the defense. The seized substance,

however, was available to the defense. The jury found that

Banks was the person from whom the substance had

been seized (that conclusion, which is essential to the

verdict, is not undermined by any problem in Browning’s

testimony), and Banks himself knew what he was carrying. More: the substance could have been analyzed by the

defense. The Treasury would have paid for a chemist to

analyze it on defendant’s behalf. 18 U.S.C. §3006A(e)(1).

Because the substance was available to both sides, there

cannot have been a Brady problem.

If Banks thought that the substance was not cocaine (or

even that there was a serious question about its composi-
No. 07-3348 19

tion), defense counsel would not have relied exclusively

on trying to impeach the DEA’s chemist—and at trial

defense counsel did not even try to impeach Browning.

(Counsel waived cross-examination.) To challenge Browning’s conclusions, the defense would have needed its

own expert and could have had the substance analyzed

readily. Yet Banks has never denied that the substance

is cocaine and has never had it tested (at least, has not

argued that tests undermine Browning’s results; perhaps

a defense expert confirmed Browning’s conclusions). It

would be absurd to hold a new trial to establish, for

a second time, something that is uncontested.

Once Browning’s credit-card problem came to light, and

the prosecutor said that it would have been easy to use

another chemist, the district judge had to decide what

would have happened. The evidentiary hearing at which

Browning testified about her finances should have explored two other issues: First, would the prosecution

have used another chemist? Second, what would this

other chemist have said? Suppose the prosecutor had

testified that he would have used another chemist, and

the judge had believed this. Then there would be no

basis for another trial, unless there is good reason to

think that the second chemist would reach a conclusion

different from Browning’s. And the best way to find out

is to appoint an independent (non-DEA) expert and

have that expert analyze the substance.

This case went off the rails because the parties failed to

alert the district judge to the distinction between verifiable

and non-verifiable testimony. When impeaching evidence
20 No. 07-3348

about a non-verifiable subject (such as whether a witness

saw the defendant shoot the victim) comes out after trial,

the only way to probe that subject’s significance is to

hold another trial with all evidence placed before the jury.

But for a question such as “is substance X cocaine or

sugar?”, there is a way to explore materiality without a

new trial. Unless a fresh expert analysis of the substance

would undermine Browning’s analysis, a new trial would

be pointless. The defense bears the burdens of production

and persuasion on Brady claims; the gaps in the record

mean that the outcome of the trial stands.

10-9-08