FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MAHER OBAGI, AKA Maher Abaji, 

AKA Mahir Abaji, AKA Mike Abaji,

Defendant-Appellant.

No.18-50170

D.C. No.

8:13-cr-00001-

AG-2

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MOHAMED SALAH, AKA Mohamed 

Ismail, AKA Mohamed Morales, 

AKA Ahmed Salah, AKA Mohamed 

Ahmed Salah,

Defendant-Appellant.

No. 18-50171

D.C. No.

8:13-cr-00001-

AG-6

OPINION

Appeal from the United States District Court

for the Central District of California

Andrew J. Guilford, District Judge, Presiding

Argued and Submitted June 4, 2020

Pasadena, California
2 UNITED STATES V. OBAGI

Filed July 17, 2020

Before: John B. Owens and Patrick J. Bumatay, Circuit 

Judges, and Donald W. Molloy,* District Judge.

Opinion by Judge Owens;

Dissent by Judge Bumatay

SUMMARY**

Criminal Law

The panel reversed Maher Obagi’s and Mohamed 

Salah’s convictions for federal mortgage fraud, and 

remanded for further proceedings, in a case in which the 

government disclosed after the close of evidence 

information impeaching a government witness in violation 

of Brady v. Maryland.

The panel wrote that had the information impeaching 

Halime “Holly” Saad been disclosed prior to the close of 

evidence, the presumption that juries are presumed to follow 

their instructions and the normal rules concerning curative 

instructions would govern, but in this case the genie was out 

of the bottle. The panel noted that (1) the government’s 

closing argument theme had been cast—the jury could trust 

witness Jacqueline Burchell, who had pled guilty in this 

* The Honorable Donald W. Molloy, United States District Judge 

for the District of Montana, sitting by designation.

** 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. OBAGI 3

investigation and perjured herself in civil deposition, and 

other cooperators because Saad was an “independent 

witness” who reliably corroborated Burchell; (2) Obagi’s 

counsel had completed closing argument without the benefit 

of being able to attack Saad’s credibility; (3) Salah could 

have used evidence that Saad was not a reliable independent 

witness—and that the prosecution team had failed to 

discover Saad’s severe credibility problems until closing 

arguments—to attack the thoroughness and even the good 

faith of the investigation; and (4) one could not expect Salah 

at the last minute to reframe his defense to incorporate this 

impeachment.

Rejecting the government’s argument that the failure to 

disclose was not material, the panel wrote that Saad’s 

impeachment substantially weakened the credibility of the 

government’s cooperating witnesses and the strength of its 

case.

Given the difficulty the jury faced in reaching a verdict, 

the panel could not say with confidence that the undisclosed 

impeachment did not affect the jury’s judgment. 

The panel likewise could not conclude that the district 

court’s instruction fully cured the prejudice that resulted 

from the Brady violation. Noting that it may well be that no 

instruction (or judge) could have corrected the government’s 

significant error, the panel wrote that it does not criticize the 

district court for how it handled this fluid and very tricky 

complication. 

Judge Bumatay dissented. Fearing that the panel is 

unnecessarily curtailing the discretion afforded district 

courts in responding to Brady violations, he would affirm the 

convictions because the district court ably tailored a remedy 
4 UNITED STATES V. OBAGI

that sufficiently abated the prejudice of the government’s 

late disclosure of evidence.

COUNSEL

Craig Wilke (argued), Fullerton, California; Davina T. Chen, 

Glendale, California; for Defendant-Appellant Maher 

Obagi.

H. Dean Steward (argued), San Clemente, California, for 

Defendant-Appellant Mohamed Salah.

Kerry L. Quinn (argued), Assistant United States Attorney; 

L. Ashley Aull, Chief, Criminal Appeals Section; United 

States Attorney’s Office, Los Angeles, California; for 

Plaintiff-Appellee.
UNITED STATES V. OBAGI 5

OPINION

OWENS, Circuit Judge:

Maher Obagi and Mohamed Salah appeal from their 

convictions for federal mortgage fraud. We have 

jurisdiction under 28 U.S.C. § 1291, and we reverse.1

I. BACKGROUND

A. The Excel Mortgage Fraud Scheme

Obagi and Salah worked for Excel Investments 

(“Excel”), a mortgage broker that engaged in widespread 

fraud. To make a long and complicated story short, Excel 

approached condominium developers and offered to 

purchase unsold inventory in exchange for kickbacks. Excel 

would then use part of these kickbacks to make the initial 

down payments on properties, pocketing the rest. To cover 

up its activities, Excel created false “marketing agreements” 

that purportedly reflected Excel’s work in advertising the 

units, when in fact Excel did nothing to promote these sales.

To make this scheme work, Excel also recruited 

individuals to pose as buyers on the mortgage applications. 

These “straw” buyers required extensive false paperwork, 

including bogus employment, income, and asset 

documentation. At times, Excel staff impersonated the straw 

buyers (and their supposed employers) when lenders 

attempted to telephonically verify information listed in the 

mortgage applications.

1 We resolve the companion appeal, United States v. Abaji, No. 18-

50241, in a concurrently filed memorandum disposition.
6 UNITED STATES V. OBAGI

B. Obagi’s and Salah’s Alleged Roles in the Excel 

Scheme

Obagi began working for Excel in late 2007 and, 

according to the prosecution, quickly took a leading role in 

the operation. He supervised the creation of fraudulent loan 

documents, communicated with banks, and recruited straw 

buyers. He also supervised other Excel employees who 

impersonated the buyers in phone calls, and he pocketed 

large sums from the scheme.

Salah played a smaller role at Excel and, unlike Obagi, 

was not part of the management team. But, as the 

government alleged, he assisted in forging tax records and 

similar documents to ensure that banks would approve the 

mortgage applications. He also helped facilitate the bogus 

straw buyer phone calls by Excel employees and concealed 

payments to straw buyers by converting Excel checks into 

cashier’s checks.

C. The Indictment, Trial, and Post-Trial 

Proceedings

In January 2013, an indictment charged Obagi and Salah 

with conspiracy to commit wire and bank fraud, and Obagi 

with an additional six substantive counts of wire fraud. A 

number of other individuals involved with Excel were 

charged as well, several of whom pled guilty and agreed to 

cooperate with the government. Others testified in exchange 

for immunity.

At trial, the government introduced the fraudulent 

records that Obagi and Salah allegedly created for Excel. 

The government also called several cooperating witnesses 

with significant credibility problems, including escrow 

officer Jacqueline Burchell. Burchell testified that Obagi 
UNITED STATES V. OBAGI 7

directed her to conceal the kickback payments, among other 

things. In addition, Burchell told the jury that she overheard 

a conversation between Obagi and Salah explaining why 

they had developers send kickbacks to Excel instead of 

reducing the prices of properties. But Burchell pled guilty 

in this investigation, participated in a separate mortgage 

fraud scheme, and perjured herself in a civil deposition. So 

to bolster her credibility—as well as that of other 

cooperating witnesses—the government also presented three 

Excel witnesses who purportedly never had cut a deal to 

avoid prosecution. One such witness was Halime “Holly” 

Saad, another Excel escrow officer. Saad, like Burchell, 

testified that Obagi instructed her to conceal the kickback 

payments. The prosecution later described Saad’s testimony 

as going “right to the heart of what was happening at Excel 

during all the events set forth in the Indictment.”

After the close of evidence and during the opening 

portion of its closing argument, the government highlighted 

the testimony of Burchell, the cooperating escrow officer. 

And to blunt the upcoming defense attack on Burchell’s 

credibility, the government relied heavily on Saad. The 

prosecution acknowledged that the jury should “treat 

cooperating witness testimony more skeptically than you 

would the average witness,” but emphasized that “on all 

major points, these witnesses’ testimonies are corroborated 

from independent witnesses,” as well as by documents and 

the defendants’ own statements. “In particular, you heard 

from Holly Saad. She said she dealt primarily with Maher 

Obagi as the guy who controlled the escrow process for those 

properties in Florida.” The prosecutor reminded the jury that 

Saad had “no agreement[] wherein there’s any 

representation about . . . [her] sentence[] being reduced or 

non-prosecution, et cetera.” Indeed, Saad testified that she 
8 UNITED STATES V. OBAGI

had not “entered into any agreement” with the prosecutor’s 

office or received immunity in exchange for her cooperation.

Unfortunately, one of prosecution’s key tenets during 

closing—that the jurors could trust the culpable cooperators 

because they could trust Saad as an independent 

corroborating witness—was false. During a break between 

Obagi’s and Salah’s defense closings, a different prosecutor 

from the U.S. Attorney’s Office who just happened to watch 

the closing arguments recognized that Saad had in fact 

received immunity in a separate mortgage fraud 

investigation and alerted the trial prosecutors to the 

enormous oversight. The prosecution then notified the court 

and defense counsel about Saad’s June 2014 immunity 

agreement, immediately disclosing both the agreement and 

two investigative reports.

The introduction of this new information in the middle 

of closings placed defense counsel and the trial judge in an 

impossible position. The parties discussed various options, 

including granting a mistrial, reopening the case to recall 

Saad to the witness stand, or instructing the jury about 

Saad’s undisclosed immunity agreement.

After extensive discussion, the trial court decided to 

proceed with the remaining closing arguments, and to 

instruct the jury as follows:

It has come to my attention that the United 

States Attorney’s Office and the FBI failed to 

disclose evidence that the witness, Halime 

Saad, previously received immunity from the 

United States Attorney in a separate case, and 

thereafter, she may have knowingly made 

false statements to the FBI. This information 
UNITED STATES V. OBAGI 9

is relevant to the witness’s credibility in this 

case.

The failure to disclose this information 

implicates defendants’ right to due process of 

law. For these reasons, you should disregard 

the testimony of witness, Halime Saad, and 

not consider it for any purpose, nor should 

you consider any arguments made by the 

government concerning Ms. Saad.

Immediately after crafting the instruction, the trial court told 

counsel: “That’s it. I think you’ve all made your record, and 

I think the Ninth Circuit should carefully look at that record 

and see if I’ve drawn the line in the right place.”

In addition to the three documents disclosed during 

closings, the government disclosed 3,750 pages of materials 

the next morning and another 1,000 pages in the month after 

trial. The defense did not have the opportunity to review any 

of these materials before the case was submitted to the jury. 

These documents revealed that Saad was a culpable 

participant in the separate mortgage fraud scheme, had taken 

a bribe to falsify escrow documents, lied to law enforcement 

about her participation in the scheme, admitted to her actions 

only after receiving limited use immunity from the U.S. 

Attorney, and remained under investigation by a state 

agency in connection with her fraudulent activities.

The jury deliberated for three days, then returned guilty 

verdicts on the conspiracy charge for both Obagi and Salah, 

convicted Obagi on three substantive counts, and hung on 

the three remaining substantive counts.

Obagi and Salah moved for a new trial. After extensive 

briefing and two days of post-trial hearings, the district court 
10 UNITED STATES V. OBAGI

denied the motion. The court found no evidence of 

intentional misconduct2 and concluded that the 

government’s failure to disclose did not deprive Obagi or 

Salah of a fair trial. The court sentenced Obagi to 

78 months’ imprisonment with $10,042,638 in restitution, 

and sentenced Salah to 57 months’ imprisonment with 

$7,487,163 in restitution.

The district court recognized the difficulties caused by 

the prosecution’s failure to disclose Saad’s immunity deal 

and related discovery. Urging Obagi and Salah to preserve 

their objection for appeal, the court stated, “The Ninth 

Circuit is going to have a look at this.” After sentencing, the 

court allowed Obagi and Salah to remain on release status 

pending appeal because of the disclosure issue.

II. DISCUSSION

A. STANDARD OF REVIEW

We review de novo whether the government violated its 

discovery obligations. United States v. Stinson, 647 F.3d 

1196, 1208 (9th Cir. 2011). Where, as in this case, the 

district court has sanctioned the government for its discovery 

violations, we review the choice of sanctions for abuse of 

discretion. United States v. Garrison, 888 F.3d 1057, 1064 

(9th Cir. 2018).

2 We agree with the district court that the failure to timely disclose 

Saad’s separate immunity agreement was not due to any malfeasance by 

the prosecutors in this case, but due to an apparent failure to 

communicate between investigating agents who worked on the various 

mortgage fraud investigations.
UNITED STATES V. OBAGI 11

B. BRADY AND ITS APPLICATION HERE

The government violates its discovery obligations under 

Brady v. Maryland, 373 U.S. 83 (1963), if it suppresses 

material evidence that is favorable to the accused. Strickler 

v. Green, 527 U.S. 263, 281–82 (1999). Evidence favorable 

to the accused “includes evidence that would help the 

defendant impeach a witness.” Sanders v. Cullen, 873 F.3d 

778, 802 (9th Cir. 2017) (citing Giglio v. United States, 

405 U.S. 150, 154–55 (1972)); see also U.S. Dep’t of 

Justice, Justice Manual § 9-5.001 (2020) (imposing 

disclosure obligations on the government beyond that 

provided for by either the Federal Rules or the Constitution). 

Suppression occurs whenever the government fails to 

disclose evidence, regardless of the government’s good or 

bad faith. Wearry v. Cain, 136 S. Ct. 1002, 1006 (2016). 

Evidence is material—and therefore requires reversal—

when there is “any reasonable likelihood that it could have 

affected the judgment of the jury.” Id. (internal quotation 

marks and citation omitted). Thus, a defendant can prevail 

under Brady even if “the undisclosed information may not 

have affected the jury’s verdict.” Id. at 1006 n.6; see also 

Browning v. Baker, 875 F.3d 444, 470 (9th Cir. 2017) 

(“Even if the jury—armed with all of this new evidence—

could have voted to convict [Browning], we have no 

confidence that it would have done so.” (alteration in 

original) (quoting Wearry, 136 S. Ct. at 1007)).

The district court made a noble effort in light of the 

circumstances to craft a remedy that would protect the rights 

of the defendants without requiring a mistrial. Ordinarily, 

“juries are presumed to follow their instructions.” 

Richardson v. Marsh, 481 U.S. 200, 211 (1987). Had the 

information impeaching Saad been disclosed prior to the 
12 UNITED STATES V. OBAGI

close of evidence, this presumption and the normal rules 

concerning curative instructions likely would govern here.

But in this case, it was too late—the genie was out of the 

bottle. Not only had the government’s closing argument 

theme been cast—the jury could trust Burchell and the other 

cooperators because Saad was an “independent witness” 

who reliably corroborated Burchell—but Obagi’s own 

counsel had completed closing argument without the benefit 

of being able to attack Saad’s credibility. Asking defense 

counsel to reframe his theory of the case—both in terms of 

examining witnesses and arguing to the jury—after he had 

spoken to the jury for the last time was simply too much.

Saad’s testimony did not incriminate Salah to the same 

extent as Obagi, but the late-disclosed impeachment 

evidence still could have played an important role in Salah’s 

theory of the case. Salah could have used evidence that Saad 

was not a reliable independent witness—and still worse, that 

the prosecution team had failed to discover her severe 

credibility problems until closing arguments—to attack “the 

thoroughness and even the good faith of the investigation.” 

Kyles v. Whitley, 514 U.S. 419, 445 (1995). The 

investigating agents in this case failed to uncover Saad’s 

credibility problems before trial, and they could have 

similarly failed to vet the prosecution’s other witnesses. As 

with Obagi, one could not expect Salah at the last minute to 

reframe his defense to incorporate this impeachment.

The government argues that the failure to disclose was 

not material because Saad’s testimony was “duplicative of 

other testimony and evidence.” This was not how the 

government viewed Saad’s testimony at trial. Saad’s 

testimony mattered not only because she directly 

incriminated Obagi, but because she corroborated testimony 

from the government’s cooperating witnesses. Indeed, the 
UNITED STATES V. OBAGI 13

government’s closing mentioned Saad by name six times 

because her corroboration was so important. The 

government told jurors that they could believe Burchell—a 

confessed fraudster who testified to receive a favorable 

plea—because Saad was trustworthy and “independent.” 

The government used Saad to bolster the otherwise dubious 

credibility of its cooperating witnesses. Saad’s 

impeachment substantially weakened the credibility of those 

witnesses and the strength of the government’s case.

Prejudice is especially likely here because the case was 

so close. The jury deliberated for three days and still 

delivered a split verdict on the charges against Obagi. 

United States v. Leal-Del Carmen, 697 F.3d 964, 976 (9th 

Cir. 2012) (finding prejudice where “jury deliberations 

spanned two days and ended in a split verdict”); United 

States v. Velarde-Gomez, 269 F.3d 1023, 1036 (9th Cir. 

2001) (en banc) (“Longer jury deliberations weigh against a 

finding of harmless error because lengthy deliberations 

suggest a difficult case.” (internal quotation marks, citations, 

and alterations omitted)). Given the difficulty the jury faced 

in reaching a verdict, we cannot say with confidence that the 

undisclosed impeachment did not affect the jury’s judgment.

Nor can we conclude that the district court’s instruction 

fully cured the prejudice that resulted from the government’s 

Brady violation. While the instruction informed the jury that 

the government had erred and that it should disregard Saad’s 

testimony and argument about her, it did not tell the jury that 

the government’s powerful closing was premised on a false 

narrative—Saad’s reliability. Nor did it explain how defense 

counsel had presented the case one way, only to learn 

afterwards that the truth was something else. Despite the 

trial court’s best efforts, the failure to disclose Saad’s 

immunity deal “undermine[s] confidence” in the jury’s 
14 UNITED STATES V. OBAGI

verdict. Wearry, 136 S. Ct. at 1007 (quoting Smith v. Cain, 

565 U.S. 73, 76 (2012)).

Although we conclude that the instructions given to the 

jury did not sufficiently cure the problems that the late 

disclosures created, we do not criticize the district court for 

how it handled this fluid and very tricky complication—

indeed, under these unique circumstances, it may well be 

that no instruction (or judge) could have corrected the 

government’s significant error.

III. CONCLUSION

Because there is a reasonable likelihood that the 

undisclosed evidence impeaching Saad could have affected 

the judgment of the jury, we are compelled to reverse the 

convictions and remand the case to the district court for 

further proceedings.3

REVERSED AND REMANDED.

3 Because we reverse on Brady grounds, we do not address the other 

issues raised in the defendants’ appeal. The parties or the district court 

may revisit these issues on remand.
UNITED STATES V. OBAGI 15

BUMATAY, Circuit Judge, dissenting:

No one questions the seriousness of the government’s 

failure here. I agree with the majority that the government 

wrongly withheld Brady material in failing to disclose 

impeachment material against its witness, Halime “Holly” 

Saad, until after closing arguments. The error, even if 

inadvertent, undermined Maher Obagi’s and, to a lesser 

extent, Mohamed Salah’s right to a fair trial.

But, I’m concerned that we have overcorrected for that 

mistake here. As serious as a Brady violation is, that is not 

the end of the inquiry for us. Even in cases where the 

government’s withholding of Brady material prejudices 

defendants, we still look to the district courts to determine if 

a remedy is possible short of a mistrial. In this case, a longserving district court judge, who presided over the lengthy 

trial, exercised that discretion and fashioned a remedy that 

adequately cured any prejudice from the government’s trial 

shortcomings. In the majority’s view, this cure falls short. 

In the process, the majority suggests that any Brady violation

disclosed after closing arguments automatically warrants 

reversal—a result found nowhere in our precedent. I 

respectfully dissent.

I.

We ordinarily affirm guilty verdicts—even where the 

government commits Brady violations—when any prejudice 

is outweighed by (1) the district court’s remedy and 

(2) extensive evidence of guilt. See United States v. 

Garrison, 888 F.3d 1057, 1065 (9th Cir. 2018). Determining 

whether the government’s Brady violation prejudiced 

defendants, then, requires us to balance the severity of the 

injury to defendants from the government’s conduct against 
16 UNITED STATES V. OBAGI

the court’s chosen remedy and the record evidence of guilt 

as a whole. Id.

In Garrison, for example, the government repeatedly 

failed to timely disclose impeachment material regarding its 

two key cooperating witnesses. 888 F.3d at 1061–62. In 

response, the district court did not strike the witnesses’

testimony, but advised the jury that the government failed to 

disclose the evidence and that it could draw adverse 

inferences from this failure. Id. at 1064–66. On appeal, we 

upheld the conviction, holding that in light of the court’s 

instruction and “the extensive evidence against Garrison, we 

cannot conclude that any prejudice stemmed from the late 

disclosure.” Id. at 1055–56.

Moreover, we give deference to district courts in crafting 

remedies for Brady violations. United States v. Struckman, 

611 F.3d 560, 577 (9th Cir. 2010) (reviewing the district 

court’s Brady remedy for abuse of discretion); see also 

United States v. Ubaldo, 859 F.3d 690, 704 (9th Cir. 2017) 

(“The district court acted within its discretion when it elected 

to issue a curative instruction rather than granting a mistrial 

for the purported violation of Rule 16.”). “[R]emedies 

should be tailored to the injury suffered from the 

constitutional violation and should not unnecessarily 

infringe on competing interests.” United States v. Morrison, 

449 U.S. 361, 364 (1981). When the district court’s remedy 

sufficiently mitigates the harm, any prejudice is abated. See 

Struckman, 611 F.3d at 578.

The district court’s chosen remedies here fell well within 

its discretion. First, the court directed the jury to disregard 

the testimony of Saad in its entirety, as well as any 

arguments based on it. We’ve counseled before that striking 

a witness’s testimony in its entirety is a “drastic remed[y],” 

and should be used only after consideration of less severe 
UNITED STATES V. OBAGI 17

sanctions. United States v. Polizzi, 500 F.2d 856, 893 (9th 

Cir. 1974). Under the presumption that juries generally 

follow court instructions, Richardson v. Marsh, 481 U.S. 

200, 211 (1987), this directive effectively removed Saad’s 

evidence from the proceedings.

The court also instructed the jury that the government 

“failed to disclose evidence that [Saad] . . . may have 

knowingly made false statements to the FBI,” and that “[t]he 

failure to disclose this information implicate[d] defendants’ 

rights to due process of law.” The district court’s censure of 

the prosecution was the last thing the jury heard before 

deliberations, bolstering its leveling force. The district court 

also afforded defense counsel additional remedies, offering 

to allow counsel to recall Saad or the government’s agents 

or to re-argue closing. Counsel rejected the court’s offer.1 

Given the difficult hand the district court was dealt in the late 

stage of trial, these instructions were not unreasonable in 

light of the significant evidence marshaled against the 

defendants and the discretion granted to district courts in this 

area. Struckman, 611 F.3d at 577.

Finally, after the heat of trial, the district court conducted 

an extensive evidentiary hearing into the government’s 

actions and assured itself of the proprietary of its chosen 

remedy. It determined that the government’s error was 

inadvertent, that it attempted to correct the mistake at the 

first possible moment, and that it had taken steps to avoid 

similar mistakes in the future. The district court also found 

that the government did not engage in any “flagrant 

misbehavior” requiring dismissal. Given the benefit of all 

1 This fact makes defendants’ claim on appeal that the court didn’t 

do enough hard to swallow.
18 UNITED STATES V. OBAGI

the facts, the district court determined no mistrial was 

warranted.

II.

The district court’s actions make even more sense in 

light of the extensive evidence against the defendants, even 

excluding Saad’s testimony. On the documentary front, the 

government presented ample evidence that Obagi submitted 

false mortgage documents in his own name, and received 

and laundered money pursuant to the scheme. Several other 

witnesses testified that Obagi directed participants to omit 

kickbacks from statements submitted to banks and convert 

personal checks to cashier’s checks, participated in 

management-level meetings, and helped shred documents 

right before the fraud shut down. Witnesses further testified 

that both Obagi and Salah impersonated borrowers and 

employers using cell phones in furtherance of the fraud. And 

to top things off, investigating agents testified that Obagi 

confessed to knowing his company’s actions were “illegal.” 

Likewise, Salah admitted on tape that he forged fake W-2s 

and other documents.

Given the court’s harsh curative instruction and the 

extensive evidence against defendants, it’s hard to see how 

Saad’s testimony makes or breaks the government’s case.2 

Saad was not a “star witness.” Cf. United States v. Kohring, 

637 F.3d 895, 905 (9th Cir. 2011) (reversing on a Brady 

violation related to the prosecution’s “star witness.”) 

(simplified). As the district court rightly observed, she “only 

testified for about an hour and a half, during the course of a 

2 Saad’s unimportance to the government’s case is particularly clear 

in relation to Mohamed Salah, who wasn’t even mentioned in her 

testimony.
UNITED STATES V. OBAGI 19

three-week long trial.” Moreover, Saad’s testimony 

overlapped with that of several other witnesses and covered 

events pre-dating the defendants’ substantive criminal 

offenses. Cf. Sivak v. Hardison, 658 F.3d 898, 914 (9th Cir. 

2011) (finding no prejudice where a witness’s substantive 

testimony was “duplicative to the other evidence presented 

at trial”). In other contexts, we’ve affirmed guilty verdicts 

even when the district court erroneously admitted a 

defendant’s confession. See, e.g., Padilla v. Terhune, 

309 F.3d 614, 621 (9th Cir. 2002). Saad’s limited testimony 

is not nearly as damning as a defendant’s confession.

Because the district court ably tailored a remedy that 

sufficiently abated the prejudice of the government’s late 

disclosure of evidence, I would affirm the convictions. 

While I understand why the majority’s concerns over the 

government’s error lead it to reverse these two convictions, 

I fear we are unnecessarily curtailing the discretion afforded 

district courts in responding to Brady violations here. For 

these reasons, I respectfully dissent.