FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 05-10086 Plaintiff-Appellee,

D.C. No.

v.  CR-00-01010-EHC

RACHEL ALAFFA JERNIGAN,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the District of Arizona

Earl H. Carroll, District Judge, Presiding

Argued and Submitted

March 22, 2007—San Francisco, California

Filed July 9, 2007

Before: Mary M. Schroeder, Chief Circuit Judge,

Betty B. Fletcher, Harry Pregerson, Alex Kozinski,

Diarmuid F. O’Scannlain, Pamela Ann Rymer,

Barry G. Silverman, M. Margaret McKeown,

Raymond C. Fisher, Ronald M. Gould, Marsha S. Berzon,

Jay S. Bybee, Consuelo M. Callahan, Carlos T. Bea, and

Sandra S. Ikuta, Circuit Judges.

Opinion by Judge B. Fletcher;

Dissent by Judge Bea

8167
COUNSEL

Thomas M. Hoidal, Hoidal & Hannah, PLC, Phoenix, Arizona, for the defendant-appellant. 

Michael T. Morrissey, Assitant United States Attorney, Phoenix, Arizona, for the plaintiff-appellee. 

OPINION

B. FLETCHER, Circuit Judge:

Defendant Rachel Jernigan was arrested on November 10,

2000, for allegedly robbing three banks. After Jernigan was

placed in custody and awaiting trial, two more area banks

were robbed by a woman whose description bore an uncanny

physical resemblance to hers: both women were roughly five

feet tall, Hispanic,1 and had acne or pock-marked complexions. Although the prosecution knew that other nearby banks

had been robbed by a diminutive, Hispanic female with poor

skin after Jernigan’s arrest, the prosecution failed to relay this

information to defense counsel. 

1

“Latina” may be the more accurate term but throughout the proceedings “Hispanic” has been used. 

8170 UNITED STATES v. JERNIGAN
Proceeding without knowledge of the second alleged bank

robber, Jernigan’s counsel argued at trial simply that his client

was misidentified. However, the jury was not persuaded, and

Jernigan was convicted of bank robbery on March 23, 2001.

While in prison Jernigan learned that a woman fitting a

similar description had been arrested for robbing several

banks in the area. In January 2004, Jernigan filed a motion for

a new trial asserting that (1) the government violated her due

process rights under Brady v. Maryland, 373 U.S. 83 (1963),

by failing to disclose before trial material, exculpatory evidence known to the government, and alternatively that (2) evidence discovered after trial required that Jernigan receive a

new trial pursuant to Federal Rule of Criminal Procedure 33.

The district court denied her motion in January 2005, and

Jernigan appealed. After a panel of this court affirmed the district court, we voted to rehear this case en banc. We disagree

with both the original panel and the district court and hold

that the suppressed evidence was material to Jernigan’s guilt.2

The district court’s decision is hereby reversed, and we

remand for a new trial. 

I.

On September 20, 2000, the Bank of America branch in

Gilbert, Arizona was robbed by a short, Hispanic woman with

a pock-marked face. The robber posed as a bank customer.

When her turn in line came, she passed a sloppy, hand-written

note to Elizabeth Chlupsa, the victim bank teller, threatening

to shoot if Chlupsa did not hand over all of the money in her

drawer. Chlupsa complied with the demand note, and the robber fled without having said a word. 

Jernigan became a suspect after a chance conversation

2We therefore need not reach the question of whether the district court

erred in denying Jernigan’s motion for a new trial based on Federal Rule

of Criminal Procedure 33. 

UNITED STATES v. JERNIGAN 8171
between the FBI agent investigating the bank robbery and a

postal inspector who was investigating Jernigan in connection

with some shoplifting incidents at a local post office. During

their conversation, the postal inspector noted that Jernigan fit

the description of the unidentified bank robber. After reviewing photographs of Jernigan and comparing them to surveillance photographs from the September 20th robbery, the FBI

agent focused his investigation on Jernigan. The agent created

a photographic lineup that included Jernigan and showed the

photos to the victim bank teller, who identified Jernigan as the

woman who had robbed her. No other eyewitnesses were

shown the photospread — or any other photographs of Jernigan — until five or six months later. 

Police arrested Jernigan on November 10, 2000, and she

has remained in custody since that time. In addition to the

September 20, 2000 robbery, police also charged Jernigan

with two additional bank robberies: an October 11, 2000 robbery at 906 East Baseline Road in Tempe, and an October 25,

2000 robbery at 2298 North Alma School in Chandler. Following Jernigan’s incarceration, but before her trial, two other

bank robberies were committed — one on November 28,

2000, and another on November 30, 2000 — by a person

matching Jernigan’s description: a short, Hispanic woman

with acne. One bank was located across the street from one

of the banks allegedly robbed by Jernigan; the other bank was

located approximately ten miles away. 

The district court ultimately severed the charges involving

the September 20th robbery from the other robberies with

which she was charged. Jernigan’s trial for the September

20th robbery began on March 20, 2001. At trial, the government relied entirely on the accounts of five eyewitnesses and

the bank surveillance video. The video did not provide a clean

look at the bank robber’s face3 and was used primarily to bol3We have reviewed the surveillance video and still images taken from

the video and agree that this evidence does not identify Jernigan as the

robber. The image is of poor quality and the robber is wearing a hat that

obscures her face. 

8172 UNITED STATES v. JERNIGAN
ster the eyewitnesses’ testimony. No physical evidence tied

Jernigan to the robbery. Jernigan flatly denied involvement in

any bank robberies and, at trial, her counsel argued that she

had been misidentified by the witnesses. Counsel did not,

however, suggest to the jury who might have been the robber

if Jernigan were not. 

The jury convicted Jernigan of both armed bank robbery

and use of a firearm during an armed bank robbery. The district court sentenced her to 168 months in jail and five years

of supervised release. The remaining bank robbery charges

were dismissed by stipulation. 

On December 11, 2001, Juanita Rodriguez-Gallegos robbed

the same bank allegedly robbed by Jernigan on September 20,

2000. During that robbery the victim teller, Kathleen Golliher,

placed a tracking device in the stolen money. Police stopped

Rodriguez-Gallegos half an hour after the robbery and Golliher identified her as the robber.4

 The police report described

Rodriguez-Gallegos as a Hispanic female, 4’11” and 125

pounds, with brown eyes, black hair, and pock-marked

cheeks. Police charged Rodriguez-Gallegos with the November 28, 2000, November 30, 2000, and December 11, 2001

bank robberies, and with one count of brandishing a firearm

during a violent crime. She pled guilty to the firearm offense,

and the remaining charges were dropped. 

After learning of Rodriguez-Gallegos’s arrest from fellow

inmates, Jernigan moved for a new trial. In her motion, Jernigan asserted that the government had failed to meet its Brady

obligations by not disclosing the existence of a phenotypically

4Golliher asserted during the hearing on the motion for a new trial that

the two bank robberies, both of which she witnessed, were conducted by

different women. The robberies took place 15 months apart. Golliher was

not the victim teller in the September 20, 2000 robbery. Moreover, she

was at some distance from the robber and gave conflicting accounts of the

woman’s complexion and age. 

UNITED STATES v. JERNIGAN 8173
similar bank robber who had been robbing banks in the same

area after Jernigan’s incarceration. She also argued that the

district court should grant her a new trial under Rule 33 based

upon the post-conviction developments involving Rodriguez

Gallegos. The district court denied the motion on both

grounds, and Jernigan appealed. 

II.

[1] In Brady v. Maryland, the Supreme Court explained,

“[s]ociety wins not only when the guilty are convicted but

when criminal trials are fair; our system of the administration

of justice suffers when any accused is treated unfairly.” 373

U.S. at 87. The Court also noted that prosecutors are charged

not only with winning trials but with seeking justice. Id. at 87-

88 & n.2. Premised on this understanding of fairness and prosecutorial responsibility, the Court held that the suppression

of evidence favorable to any accused violates the due process

of law, irrespective of whether the suppression is done in

good faith or bad. Id. at 87. 

[2] Brady’s progeny have articulated three elements that

defendants must prove to show a Brady violation. See Benn

v. Lambert, 283 F.3d 1040, 1052 (9th Cir. 2002). First, the

suppressed evidence must be favorable to the accused. See

United States v. Bagley, 473 U.S. 667, 676 (1985) (citing

Brady, 373 U.S. at 87). Second, the evidence must have been

suppressed by the government, either willfully or inadvertently.5

See United States v. Agurs, 427 U.S. 97, 110 (1976). And

third, the suppressed evidence must be material to the guilt or

innocence of the defendant. See Bagley, 473 U.S. at 676-78.

Because the government does not dispute that the evidence of

an additional bank robber matching Jernigan’s description

5The investigation of all of the robberies was conducted by an FBI agent

who apparently never told the prosecutor about the November robberies.

There is no indication that anyone in the U.S. Attorney’s office acted in

bad faith. 

8174 UNITED STATES v. JERNIGAN
was favorable to Jernigan and that the government failed to

provide it to defense counsel, the only issue in dispute is

whether the evidence was material. 

The touchstone of materiality review is whether admission

of the suppressed evidence would have created a “ ‘reasonable probability’ of a different result.”

6 Kyles v. Whitley, 514

U.S. 419, 434 (1995) (citing Bagley, 473 U.S. at 682). And as

the Kyles Court emphasized, the adjective “reasonable” is

important. Id. A defendant need not show that she “would

more likely than not have received a different verdict with the

evidence.” Id. Instead, she must show only that “the government’s evidentiary suppression ‘undermines confidence in the

outcome of the trial.’ ”

7

Id. (quoting Bagley, 473 U.S. at 678).

In considering whether the failure to disclose exculpatory evidence undermines confidence in the outcome, judges must

6The dissenting opinion presents a red herring and side steps the issue

before the court. At dispute is not whether Jernigan and RodriguezGallegos “look alike.” At the time of Jernigan’s trial, the government did

not know who committed the November robberies. As a result, what

Rodriguez-Gallegos actually looks like is completely irrelevant to the

Brady analysis. The question is whether a reasonable probability existed

that the jury would have arrived at a different result if provided with the

excluded evidence. More specifically, the question is whether the jury,

when presented with nothing more than shaky, cross-racial eyewitness

identifications, unsupported by any physical evidence, would have arrived

at a different result when informed that a woman described in uncannily

similar terms — terms describing a most unlikely bank robber — was robbing banks in the same area just days after Jernigan’s incarceration. Given

the extraordinary unlikelihood of two such robbers existing at the same

time in the same place, the majority believes that the jury may well have

accepted Jernigan’s “misidentification” defense had the suppressed evidence been admitted. 

7Kyles specifically rejected the idea that Brady required a sufficiency of

the evidence test. 514 U.S. at 434-35. Defendants may prevail in a Brady

challenge even if the evidence remains sufficient to convict following the

introduction of the suppressed evidence. Id. Defendants need only show

“that the favorable evidence could reasonably be taken to put the whole

case in such a different light as to undermine confidence in the verdict.”

Id. at 435. 

UNITED STATES v. JERNIGAN 8175
“ ‘undertake a careful, balanced evaluation of the nature and

strength of both the evidence the defense was prevented from

presenting and the evidence each side presented at trial.’ ”

Baily v. Rae, 339 F.3d 1107, 1119 (9th Cir. 2003) (quoting

Boss v. Pierce, 263 F.3d 734, 745 (7th Cir. 2001)). In other

words, “the withheld evidence must be analyzed ‘in the context of the entire record.’ ” Benn, 283 F.3d at 1053 (quoting

Agurs, 427 U.S. at 112). 

[3] Here, the suppressed evidence substantially erodes the

already questionable value of the eyewitness identifications.

“Centuries of experience in the administration of criminal justice have shown that convictions based solely on testimony

that identifies a defendant previously unknown to the witness

is highly suspect. Of all the various kinds of evidence it is the

least reliable, especially where unsupported by corroborating

evidence.” Jackson v. Fogg, 589 F.2d 108, 112 (2d Cir.

1978); see also Department of Justice, Eyewitness Evidence:

A Guide for Law Enforcement 1, 3 (Oct. 1999); Gary L.

Wells et al., Eyewitness Identification Procedures: Recommendations For Lineups and Photospreads, 22 L. & HUM.

BEHAV. 603, 619-27 (1998); Gary L. Wells et al., Accuracy,

Confidence, and Juror Perceptions in Eyewitness Identification, 64 J. APPLIED PSYCHOL. 440 (1979). Cross-racial identifications, such as the eyewitness accounts offered against

Jernigan, are particularly suspect. See Harvey Gee, Eyewitness Testimony and Cross-Racial Identification, 35 NEW ENG.

L. REV. 835 (2001) (reviewing Elizabeth F. Loftus, Eyewitness Testimony (1996)); John P. Rutledge, They All Look

Alike: The Inaccuracy of Cross-Racial Identifications, 28 AM.

J. CRIM. L. 207 (2001). In a case that turned entirely on eyewitness identifications, the presence of a second robber in the

same area fitting the very same physical description was

bound to “substantially reduce[ ] or destroy[ ]” the “value” of

the eyewitness testimony. See Kyles, 514 U.S. at 441. 

[4] Five eyewitnesses testified at Jernigan’s trial, describing

the robber as, inter alia, “a very, very short Hispanic, what I

8176 UNITED STATES v. JERNIGAN
thought was Hispanic-looking lady.” “She was very small,

either five-foot or under five foot.” She was “either Hispanic

or Oriental.” She was a “[v]ery small person, possibly Hispanic.” She was “a short Asian woman.” “[S]he may have had

acne, kind of pocked.” She did not have “a clear complexion.”

“She had very dark hair, black.” 

[5] The government knew shortly after Jernigan’s arrest,

but did not disclose, that witnesses to two additional bank

robberies, which took place close to the bank she was charged

with robbing, offered strikingly similar descriptions of the

perpetrator. Witnesses described the November 28th robber as

“Hispanic or Oriental” with “[a] little acne,” “5′1′′-5′2,′′” and

“[d]ark brown hair.” The November 30th robber was

described as “Female,” “Hispanic,” “5′1′′-5′2′′,” with a “Pot

[sic] Marked Face.” She was also described as a “small Asian

woman under 5 ft.” The police bulletin described a Hispanic

female, 30s, 5′02′′, 130 pounds, black hair, pock marked

cheeks and braces.” 

[6] Moreover, the victim tellers reported similar modus

operandi in all of the robberies. The victim teller testified that

during the September 20th robbery the robber slid her a note

that read, “Don’t make a big scene, give me all your money,

don’t give me any dye packs or tracking devices and don’t

press the alarm or else I will shoot.” The note was “handwritten” in a “fairly big and kind of sloppy . . . printed” fashion.

On November 30th the robber passed a “note” to the victim

teller which said, “in very sloppy writing,” “Do not set off

alarm, Give me all of your money, Please do not set off your

alarm.” Similarly, on November 30th, the robber passed a

note stating, “Don’t turn on any alarms, or you’re dead.” 

[7] The uncanny similarity between the descriptions of the

alleged robbers would be noteworthy even if the eyewitness

accounts did not describe a most unlikely bank robber. In

2000 (the year the robberies in question took place), only six

percent of all bank robbery perpetrators were female. Only six

UNITED STATES v. JERNIGAN 8177
percent of bank robbers overall (male and female) were Hispanic. See U.S. Fed. Bureau of Investigation, Summary and

Interpretation of Bank Crime Statistics, 2000 (2002). The

likelihood of two short, Hispanic female robbers with pockmarked skin holding up banks in the same area is therefore

extremely low. 

[8] The existence of another bank robber for whom Jernigan may well have been mistaken also magnifies the significance of the gaps and inconsistencies in the prosecution’s

case. The most obvious gap, as noted earlier, was the complete lack of physical evidence connecting Jernigan to the

crime. Even after Jernigan was arrested, the police failed to

produce any physical evidence connecting her to the crime: a

fingerprint lifted from the victim teller’s window did not

match Jernigan’s print, and, after Jernigan was arrested, the

police failed to find the stolen money, the firearm used to conduct the robbery, or any clothing resembling that worn by the

robber. 

[9] Furthermore, the government’s witnesses provided

inaccurate or inconsistent testimony, which is troubling, but

not atypical of eyewitness accounts. For instance, Chlupsa,

the victim teller on September 20th, maintained both immediately after the robbery and during trial that the perpetrator had

no tattoos and did not have painted fingernails. However,

Jernigan has a number of tattoos on her hands and forearms,

as evidenced in photographs submitted to the district court

and confirmed by the FBI shortly after the arrest. 

Chlupsa also described the perpetrator as having plucked

eyebrows, wearing “very, very, very, dark eyeliner,” “a lot of

makeup,” and a lot of eyeliner. By contrast, Lorraine Hawley,

a customer who stood next to the perpetrator in line, described

the robber as wearing “little to no make-up” and no lipstick.8

8Witnesses also had a difficult time determining whether the robber was

Asian or Hispanic. Although these inconsistencies may be less significant,

they highlight the uncertainty of the eyewitness identifications. 

8178 UNITED STATES v. JERNIGAN
The eyewitnesses’ tentativeness is equally telling. Hawley,

who claimed to get a good look at the robber, had some trouble picking Jernigan out of a photospread, stating, “I want to

say it looks like this one. . . . I would say this would be the

one.” Golliher appears to have had trouble as well, stating,

“By — I just felt that was the one that — that was whom I

saw.” 

These problems are not altogether surprising given that all

but one of the eyewitnesses viewed the photospread five to six

months after the incident. Hawley first saw the photospread

two days before trial — six months after the robbery. Three

others — Golliher, employee Yarjanic Nath, and customer

Donovan Grierson — were all shown the photos five months

after the robbery. This delay, which goes totally unexplained,

also detracts from the reliability of the identifications. 

[10] Finally, the probability that Jernigan was confused

with the real bank robber is bolstered further by various

pieces of exculpatory evidence.9 For instance, the getaway car

for the October 11, 2000 robbery — a black Toyota 4-Runner

— matched the description of the November 30, 2000 getaway car used by Rodriguez-Gallegos. Additionally, the victim teller in the October 11, 2000 robbery could not identify

the woman who robbed her from the photospread containing

Jernigan; however, the victim declared that the October 11

robber was the woman in the surveillance video from the September 20, 2000 robbery, suggesting that the September 20th

robber was other than Jernigan — even possibly RodriguezGallegos. 

9

Jernigan was questioned by a polygraph expert prior to trial. The polygrapher asked Jernigan about robbing banks both as a general matter and

in regard to the three banks for which she was originally arrested. Jernigan

denied involvement in those, or any other, bank robberies and her score

of 17 indicates a truthful response (anything above a 6 is considered truthful). Jernigan does not challenge the district court’s exclusion of this evidence, and we do not consider it in reaching our decision. 

UNITED STATES v. JERNIGAN 8179
[11] When considered in isolation, the various gaps, inconsistencies, and exculpatory details in the record might be

insufficient to trump the testimony of the five eyewitnesses.

But when this evidence is considered collectively, it undermines confidence in the outcome of the trial. It may be that

two five-foot-tall Hispanic women with pock-marked skin

were robbing the same banks in the same area with the same

modus operandi and the same getaway vehicles. And it may

be that the police just happened to miss finding the gun used

in the robbery for which Jernigan was tried, the clothes worn

in the robbery, and the money stolen in the robbery, when

apprehending Jernigan. But it also may be that the hesitant

and conflicting identifications offered by the eyewitnesses

many months after the event were incorrect, and that the witnesses simply picked Jernigan out of the photospread because

she was the woman who looked the most like the real culprit.10

[12] As we view the withheld evidence in the context of the

entire record, it is apparent to us that the evidence was material and that Jernigan was prejudiced by its suppression. Withholding knowledge of a second suspect conflicts with the

Supreme Court’s directive that “the criminal trial, as distinct

from the prosecutor’s private deliberations, [be preserved] as

the chosen forum for ascertaining the truth about criminal

accusations.” Kyles, 514 U.S. at 440. By suppressing this evidence, the prosecution arrogated to itself a central function

belonging to the criminal jury and pursued its role as adversary to the exclusion of its role as architect of a just trial. Cf.

Brady, 373 U.S. at 87-88 & n.2. The government has deprived

Jernigan of a fair trial and placed a possibly innocent woman

behind bars. Because the evidence withheld by the government was material, we reverse the decision of the panel and

district court, and remand to the district court for further pro10It is worth noting that Rodriguez-Gallegos was never included in any

of the photospreads shown to the eyewitnesses. Thus, there was never an

opportunity for the witnesses to compare Jernigan and RodriguezGallegos. 

8180 UNITED STATES v. JERNIGAN
ceedings consistent with our opinion. 

REVERSED AND REMANDED. 

BEA, Circuit Judge, with whom O’SCANNLAIN, Circuit

Judge, joins, dissenting: 

I cannot articulate my disagreement with the majority’s reasoning better than did our colleague Judge Farris: “My

brother and I differ on what is the appropriate appellate function. He would retry. I am content to review.” Li v. Ashcroft,

378 F.3d 959, 964 n.1 (9th Cir. 2004). 

The majority gives an exquisitely detailed tour de force

through the circumstantial evidence of similarity of physical

appearance between the two women. That tour certainly

allows the preliminary inference that the jury could have

found, on that evidence alone, that Rodriguez-Gallegos

looked enough like Jernigan; the jury could have found

Rodriguez-Gallegos was probably the September 20, 2000

robber on that evidence. But our task is not to imagine ourselves as jurors given only the circumstantial evidence of the

women’s descriptions. We must consider whether the district

court erred in rejecting that circumstantial evidence in view of

what he saw: that the women did not look alike.1

1The majority concludes that “what Rodriguez-Gallegos actually looks

like is completely irrelevant to the Brady analysis” because the Government did not know the identity of the November 28, 2000 robber prior to

Jernigan’s trial. See note 6, Majority Opinion. The majority errs in failing

to distinguish between identity and appearance; they are not synonymous

for purposes of determining the materiality of the claimed Brady evidence.

Although the Government did not know the identity of the November 28,

2000 robber prior to Jernigan’s trial, the Government knew what the

November 28, 2000 robber looked like prior to Jernigan’s trial; the Government possessed and viewed surveillance video of the November 28,

2000 bank robbery prior to Jernigan’s trial. FBI Agent Kyle Richard had

UNITED STATES v. JERNIGAN 8181
When we focus on the proper scope of review, our obligation is solely to determine whether the trial court erred in

finding the non-disclosed evidence of the later bank robberies

was not material; that no Brady violation occurred. See United

States v. Bagley, 473 U.S. 667, 676-78 (1985) (citing Brady

v. Maryland, 373 U.S. 83, 87 (1963)). Determination of the

facts upon which Brady materiality is decided is properly confided to the trial judge and should be subject to review by us

only for clear error. See section II.A, infra. 

The only Brady issue2 before us should be whether Judge

Carroll’s determination that the women were not of similar

appearance was clear error. If not, the undisclosed evidence

was not material under Brady. 

Judge Earl H. Carroll3 presided over a four-day trial of the

bank robbery charge against Jernigan. Jernigan, sans the “hat

that obscures her face”

4

 in the September 20, 2000 bank surveillance video, sat at counsel table, several feet from Judge

compared the photographs taken from the November 28, 2000 surveillance

video (of Rodriguez-Gallegos) to those of Jernigan, and had determined—

as Judge Carroll later did—he was dealing with two different female bank

robbers. Significantly, Judge Carroll’s determination that Jernigan did not

look like the November 28, 2000 robber was based solely on evidence

possessed by the government prior to Jernigan’s trial, i.e., a photograph

taken from the November 28, 2000 surveillance video. See Mot. New Trial

Tr. 87, May 12, 2004 (Docket No. 117). Accordingly, Judge Carroll’s

finding that Jernigan did not look like the November 28, 2000 robber is

hardly irrelevant. Indeed, if by some happenstance the two women had the

same names—further complicating matters from an identity point of view

—this coincidence would not have made the evidence “material” under

Brady for the simple reason the two women do not look alike. Hence, the

non-disclosed evidence does not permit the inference that the eyewitnesses

mistook Jernigan for Rodriguez-Gallegos. 

2The Government concedes the evidence was favorable and undisclosed. 

3Appointed to the district court in 1980. 

4

See note 3, Majority Opinion. 

8182 UNITED STATES v. JERNIGAN
Carroll. After about 25 hours of such proximity and on the

motion for new trial, Judge Carroll compared a photograph of

Rodriguez-Gallegos taken from the November 28, 2000 bank

surveillance video with a photograph of Jernigan and with

Jernigan herself. The clear photograph of Rodriguez-Gallegos

was a full face black and white; she was not wearing a hat of

any sort nor, Heaven forfend, a mask. But that was not all

Judge Carroll had to help him determine whether there was

any chance Jernigan could be mistaken for RodriguezGallegos. No, he also had the written admission of Jernigan’s

counsel that Jernigan had never argued the two women

“looked alike.”

5

Judge Carroll found Jernigan’s Brady claim meritless and

delivered a written decision denying Jernigan’s motion for

new trial, in which decision he made specific findings regarding whether Jernigan looked enough like Rodriguez-Gallegos,

so that the former could be mistaken for the latter: 

“The simple fact is that [Jernigan] and Rodriguez[-

Gallegos] do not look alike . . . .” 

“The defense has not argued the two women ‘look

alike.’ ” 

“Common sense says that if Defendant and Rodriguez do not look alike, the fact that they may share

similar physical characteristics such as height, racial

characteristics and poor complexions, does not support a finding or an ‘inference’ that RodriguezGallegos robbed the Bank of America branch in Gilbert on September 20, 2000.”

6

Judge Carroll’s written decision is consistent with his earlier finding that Jernigan’s “appearance, physical appearance,

5Def.’s Reply on Mot. for New Trial 4, April 12, 2004. 

6Order, January 21, 2005. 

UNITED STATES v. JERNIGAN 8183
her face, mouth, hair and that of this Miss Rodriguez[-

Gallegos] . . . are markedly different.”

7

The majority labels Judge Carroll’s finding of dissimilarity

a “red herring.” See note 6, Majority Opinion. Is the finding

that Jernigan and Rodriguez-Gallegos do not look alike really

a “deliberately misleading object,” like the smoked and

smelly fish that poachers would trail on the ground, away

from their game, to throw the owner’s dogs off, and leave the

game to the poachers? 

No, to call Judge Carroll’s visual determination the women

did not look alike a “red herring” is to invoke the last retort

of the knave caught red-handed: “Who are you going to

believe, me or your lying eyes?” 

Unlike the majority, I cannot ignore Judge Carroll’s eyes

and their finding; they determine the undisclosed circumstantial evidence was not material. 

Let me illustrate the effect of such a finding. Assume the

prosecutor had disclosed the circumstantial description evidence which suggested Jernigan looked like the November

28, 2000 robber, later identified as Rodriguez-Gallegos. But

also assume the prosecutor had disclosed evidence that convinced Judge Carroll that Rodriguez-Gallegos was in fact

incarcerated throughout the day of September 20, 2000, and

thus unable to have committed the September 20, 2000 bank

robbery. Exercising his gate-keeping function to bar confusing and misleading testimony, Judge Carroll would exclude

the circumstantial description testimony as irrelevant. See

Fed. R. Evid. 104, 402 and 403. We would affirm. We would

also affirm if the evidence had not been disclosed at all, see

United States v. Sarno, 73 F.3d 1470, 1506 (9th Cir. 1995),

unless Judge Carroll had committed reversible error in his

evidentiary ruling that Rodriguez-Gallegos was in jail and

7Mot. New Trial Tr. 87, May 12, 2004 (Docket No. 117). 

8184 UNITED STATES v. JERNIGAN
thus unable to have committed the September 20, 2000 bank

robbery. 

Here, the November 28, 2000 surveillance video photograph dictates the same conclusion because it supports Judge

Carroll’s finding that Jernigan and the November 28, 2000

robber, Rodriguez-Gallegos, do not look alike. Judge Carroll’s ruling was that even if disclosed, evidence of “the robberies in November 2000 would not have been admissible in

this case[.]” See Order at 7, January 21, 2005 (emphasis

added). In short, the fact that Jernigan and the November 28,

2000 robber do not look alike, far from being a “red herring,”

is the central judicial ruling which renders the undisclosed

evidence irrelevant, hence not “material”—unless the Judge

who so ruled committed reversible error in his ruling. That is

the only issue properly before us. 

Applying the correct scope of review, Judge Carroll’s factual findings—carefully ignored by the majority—are not

clearly erroneous8 and, in my view, are entitled to deference.

Accordingly, since the claimed Brady evidence would not

have undermined confidence in the jury verdict of conviction,

I would affirm. 

The majority, however, refuses to accord deference to these

findings, departs from binding Supreme Court precedent in

that regard,9 engages in appellate fact finding without the benefit of ever having seen Jernigan (except in the video where

she wore a face obscuring hat), departs from Kyles v. Whitley,

514 U.S. 419, 437 (1995), by not determining materiality on

the basis of all the non-disclosed evidence, and reverses. 

8There is no claim that Judge Carroll did not actually have a photograph

of Rodriguez-Gallegos to compare to Jernigan or that Judge Carroll was

indeed blind—claims that might be grounds for clear error in fact finding.

9Similar appellate fact finding contrary to what the trial judge has

observed and has deduced from his own observations have recently

resulted in reversals of our decisions. See Uttecht v. Brown, 127 S. Ct.

2218 (2007); Collins v. Rice, 546 U.S. 333 (2006). 

UNITED STATES v. JERNIGAN 8185
I.

On November 10, 2000, Jernigan was arrested on suspicion

of robbing three banks in the East Valley area of Arizona: one

on September 20, 2000, one on October 11, 2000, and one on

October 25, 2000. While Jernigan was in custody pending

trial, two additional banks were robbed in the East Valley:

one on November 28, 2000 and one on November 30, 2000.

Witness statements from all five bank robberies describe the

robber as a short Hispanic woman with a poor complexion. 

Agent Kyle Richard, the bank robbery coordinator at the

Federal Bureau of Investigation’s Phoenix division, was the

case agent for all five bank robberies. Agent Richard determined the bank robberies in September and October were not

committed by the same woman who committed the bank robberies in November. This determination was based on comparisons of the modus operandi, witness statements, and a

photograph of Jernigan with photographs taken from the surveillance video of the November robberies. Owing to his

determination, Agent Richard did not inform the Assistant

United States Attorney prosecuting Jernigan’s case of the

November robberies.10 Thus, the Assistant United States

Attorney did not disclose the November bank robberies to

Jernigan’s defense counsel. 

Five eyewitnesses independently identified Jernigan as having committed the September 20, 2000 bank robbery. At

Jernigan’s trial, two of the eyewitnesses described close range

contacts with Jernigan. One, the victim teller, who was in the

immediate presence of Jernigan at the time of the robbery for

several minutes, described Jernigan accurately thereafter, and

10This in no way alleviated the Assistant United States Attorney’s duty

to disclose the November robberies if they were material under Brady. See

Kyles, 514 U.S. at 437 (“[T]he individual prosecutor has a duty to learn

of any favorable evidence known to the others acting on the government’s

behalf in the case, including the police.”). 

8186 UNITED STATES v. JERNIGAN
had no trouble identifying Jernigan when she picked her out

from the photospread two days after the robbery.11 The other

testified Jernigan resembled a friend, which made identification for her much easier. The testimony of these two eyewitnesses was corroborated by the testimony of three additional

eyewitnesses and the bank surveillance video. As the majority

notes, the surveillance video from the September 20, 2000

bank robbery suffers from a lack of quality and was used primarily to bolster the eyewitnesses’ testimony. 

Jernigan’s trial defense counsel argued mistaken identify to

no avail, and Jernigan was convicted of the September 20,

2000 bank robbery. 

On December 11, 2001, Rodriguez-Gallegos was arrested

shortly after robbing the same bank Jernigan was convicted of

robbing on September 20, 2000. In addition to the December

11, 2001 bank robbery, Rodriguez-Gallegos was charged with

the November 28, 2000 and November 30, 2000 bank robberies. 

After learning of Rodriguez-Gallegos’ arrest, Jernigan filed

a motion for a new trial, asserting a Brady violation on the

basis the Government should have disclosed the November

28, 2000 and November 30, 2000 bank robberies. Judge Earl

H. Carroll, the same judge who had presided over Jernigan’s

four-day trial, presided over Jernigan’s motion for a new trial.

During the evidentiary hearing, Judge Carroll found: 

[W]ith respect at least to my observation of the

defendant in this case, Miss Jernigan, and the photograph, which is all I have, of the — Miss

Rodriguez[-Gallegos], I would observe from what I

see there that they are different people, and that

someone having looked at them under these circum11No claim is made that the photospread was suggestive or otherwise

improper. 

UNITED STATES v. JERNIGAN 8187
stances would have been able to make such a determination, if they had been presented with it at the

same time or close to that time. 

The photograph of Miss Jernigan that was used on

the photospread and her appearance, physical

appearance, her face, mouth, hair and that of this

Miss Rodriguez[-Gallegos] I think are markedly different. 

Mot. New Trial Tr. 87, May 12, 2004 (Docket No. 117)

(emphasis added). 

The photograph of Rodriguez-Gallegos to which Judge

Carrol compared Jernigan was taken from the surveillance

video of the November 28, 2000 bank robbery. This photograph, unlike the surveillance video of the September 20,

2000 bank robbery, does not suffer from a lack of quality.

Indeed, this photograph clearly portrays a woman bearing little resemblance to Jernigan. Compare PE 15, with PE 2, and

PE 3. 

Judge Carroll denied Jernigan’s motion for a new trial in a

written order stating:

The simple fact is that [Jernigan] and Rodriguez[-

Gallegos] do not look alike, whatever similarities

may be in their complexions or Hispanic appearance.

It is at best an oxymoron for the defense to claim

that Rodriguez[-Gallegos] is “probably” the September 20, 2000 robber, given the admission “that the

two women do not “ ‘look alike’ ”; 

The Government’s arguments about the differences in appearance between Jernigan

and Rodriguez-Gallegos are equally thin. In

the first place, the Government’s repeated

insistence that ‘Jernigan and Rodriguez[-

8188 UNITED STATES v. JERNIGAN
Gallegos] do not in fact look alike,’ e.g.

Response at 9, 11, is a straw man. The

defense has not argued the two women

‘look alike.’ (Defendant’s Reply Memorandum, p.4, Dkt. 104). 

Common sense says that if Defendant and Rodriguez do not look alike, the fact that they may share

similar physical characteristics such as height, racial

characteristics and poor complexions, does not support a finding or an “inference” that RodriguezGallegos robbed the Bank of America branch in Gilbert on September 20, 2000. 

Order, January 21, 2005 (emphasis added). 

If it is an “oxymoron” for the defense to claim RodriguezGallegos committed the earlier bank robberies, all the while

admitting Rodriguez-Gallegos does not look like Jernigan,

where does it leave the majority here? It leaves them with the

necessity to make appellate findings of fact directly contrary

to those made by Judge Carroll and conceded by the defense.

Consider, slowly, the import of such a view. All the appearance characteristics of the two women contained in the witness descriptions are trotted out as circumstantial evidence to

show the Brady materiality of the November bank robberies.

These appearance characteristics are relevant to prove one

point and one point only: the two women look so much alike

that the jury should have been informed of the November robberies because the jury could find that five eyewitnesses mistook Jernigan for Rodriguez-Gallegos, who actually

committed the earlier heists. But the importance—the

“materiality”—of this circumstantial evidence is abandoned

by Jernigan’s own counsel’s admission that even he does not

think the woman in the September 20, 2000 bank surveillance

UNITED STATES v. JERNIGAN 8189
video and Rodriguez-Gallegos look alike, and he affirmatively points out that he does not even argue that point.12

Not to worry. The majority’s interpretation of Brady is that

to be material under Brady, evidence must merely be distracting, when considered alone. Perhaps the majority’s idea is

based on a notion that accuracy and truth are irrelevant considerations in determining what arms should be given the

defendant to make the trial more of an even joust. That may

not be an uncommon notion in certain circles, but it has no

support in the law, as is obvious from the lack of any citation

to buttress this view. 

II.

A.

The majority and I part company over the applicable standard of review. The majority affords the district court’s factual findings no deference. The majority follows our

precedent as to legal issues involving Brady materiality; such

issues of law are to be reviewed de novo. See United States

v. Lehman, 792 F.2d 899, 901 (9th Cir. 1986) (“We review

these questions of law de novo and may affirm the district

court on any ground supported by the record.” (citations omitted)). But, we have not had the opportunity to consider what,

if any, deference should be afforded to a district court’s factual findings that bear on Brady materiality. This case presents the now squandered opportunity to do just that, and to

adopt the proper standard of review. 

12Indeed, on motion for new trial Jernigan’s defense counsel argued that

the September 2000 videotape was of such poor quality that one could not

rule out that it showed Rodriguez-Gallegos. This is a particularly weak

argument. If the September 2000 tape is undecipherable, it identifies no

one, rather than “possibly” someone. It no more identifies RodriguezGallegos than Paris Hilton. 

8190 UNITED STATES v. JERNIGAN
Those of our sister circuits which have considered this

question in connection with Brady rulings afford deference to

the district court’s findings of fact. The First, Second, Third,

Fifth, Seventh, Eighth, Tenth, and Eleventh Circuits and the

United States Court of Appeals for the District of Columbia

all afford some level of deference to a district court’s factual

findings bearing on Brady materiality.13

13See United States v. Madori, 419 F.3d 159, 169 (2d Cir. 2005)

(“Materiality in this context presents us with a mixed question of law and

fact. While the trial judge’s factual conclusions as to the effect of nondisclosure are entitled to great weight, we examine the record de novo to

determine whether the evidence in question is material as a matter of

law.”); United States v. Vallejo, 297 F.3d 1154, 1163 (11th Cir. 2002)

(“Similarly, a district court’s denial of a motion for new trial based on a

Brady violation is reviewed for abuse of discretion.”); United States v.

Ryan, 153 F.3d 708, 711 (8th Cir. 1998) (“[Abuse of discretion] standard

also applies where, as here, a defendant seeks a new trial premised upon

a Brady claim. This deferential standard of review is especially appropriate in the context of a lengthy, hard-fought, highly charged case like the

present one.” (citing United States v. Williams, 81 F.3d 1434, 1437 (7th

Cir. 1996) (citations omitted)); United States v. Boyd, 55 F.3d 239, 242

(7th Cir. 1995) (“But the other judgments that the district judge makes,

signally here the judgment whether some piece (or pieces) of evidence

wrongfully withheld by the government might if disclosed have changed

the outcome of the trial, are to be reviewed deferentially. This is not only

the rule; it is the dictate of common sense, especially in a case such as this.

Forget the 29 witnesses at the evidentiary hearing; forget there was an evidentiary hearing on the motion for a new trial. Before then, during the

trial, Judge Aspen had for months on end listened to witnesses—had

heard, had not merely read, their testimony, and had watched them as they

gave it. And he had observed the jurors as they listened to the witnesses.

A trial judge of long experience, he would have developed a feel for the

impact of the witnesses on the jury—and how that impact might have been

different had the government played by the rules—that an appellate court,

confined to reading the transcript, cannot duplicate. Judge Aspen may

have been mistaken; we might suspect that he was mistaken; but unless we

are convinced that he was mistaken, we have no warrant to reverse. That

is what it means to say that appellate review is deferential. It is not abject,

but it is deferential.” (citations omitted)); United States v. Thornton, 1

F.3d 149, 158 (3rd Cir. 1993) (“In considering a district court’s ruling on

a motion for a new trial based on the failure to disclose Brady materials,

we will conduct a de novo review of the district court’s conclusions of law

UNITED STATES v. JERNIGAN 8191
As the United States Court of Appeals for the District of

Columbia has explained:

Generally, this court reviews the district court’s

grant of a new trial for abuse of discretion. However,

when confronted with a “purely legal question,” our

review is de novo. Brady claims present something

of a special situation. Thus, as to findings of fact

made by the district court, including determinations

of credibility made both at trial and in post-trial proceedings, this court would defer under an abuse of

discretion standard. But once the existence and content of undisclosed evidence has been established,

the assessment of the materiality of this evidence

under Brady is a question of law. In this inquiry, the

question of prejudice is folded into the determination

of whether a violation has occurred. As the Supreme

Court has explained, “strictly speaking, there is

never a real ‘Brady violation’ unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have

produced a different verdict.” Therefore, once a

as well as a ‘clearly erroneous’ review of any findings of fact where

appropriate. Where the district court applies the correct legal standard, its

weighing of the evidence merits deference from the Court of Appeals,

especially given the difficulty inherent in measuring the effect of a nondisclosure on the course of a lengthy trial covering many witnesses and

exhibits.” (internal quotation marks and citations omitted)); United States

v. Sanchez, 917 F.2d 607, 618 (1st Cir. 1990) (“Due to its inherently factbound nature the district court’s determination on the materiality of newly

discovered evidence in prosecutorial nondisclosure cases is ordinarily

accorded deference.”); United States v. Buchanan, 891 F.2d 1436, 1440

(10th Cir. 1989) (“We review the factual findings of a district court acting

pursuant to 28 U.S.C. § 2255 under the clearly erroneous standard. However, the materiality of withheld evidence under Brady and its possible

effect on the verdict are mixed questions of fact and law reviewed de

novo.” (citations omitted)). 

8192 UNITED STATES v. JERNIGAN
court finds a Brady violation, a new trial follows as

the prescribed remedy, not as a matter of discretion.

United States v. Oruche, 484 F.3d 590, 595-96 (D.C. Cir.

2007) (citations omitted) (emphasis added). 

Likewise, the Fifth Circuit has explained:

The confusion stems in part from the mixed nature

of the Brady inquiry. Whereas we typically analyze

legal issues de novo, a Brady determination is inevitably a contextual inquiry, involving questions of

both law and fact. Moreover, it is intimately intertwined with the trial proceedings: because the court

must judge the effect of the evidence on the jury’s

verdict, the Brady decision can never be divorced

from the narrative of the trial. In addition, the court

must consider not simply the withheld evidence in

isolation, but also the quantity and quality of other

evidence in the record. 

In comparison to a district court ruling on a

motion for new trial, an appellate court reviewing a

Brady violation is at an inherent disadvantage. Gauging the effect that undisclosed evidence might have

had on the outcome of the trial is difficult in any

event, but it is made more so when it must be based

on a cold record. The district judge, by contrast, has

at least had the opportunity to hear the testimony at

trial firsthand, view the demeanor of the witnesses,

observe the ebb and flow of the evidence at trial, and

evaluate the strengths and weaknesses of the government’s case. When, as here, the balance of evidence

presented is close, the outcome of the case will often

hinge on a subjective and personal evaluation of the

evidence and the witnesses. In such a context, some

degree of appellate deference makes sense. 

UNITED STATES v. JERNIGAN 8193
We think there is a reconciling theme in our

facially competing approaches to Brady—based new

trial questions—adhering to decisions that examine

the Brady question anew, while acknowledging that

we must proceed with deference to the factual findings underlying the district court’s decision. This

gives play to the trial court’s superior understanding

of the trial, evidence, and witnesses, while reviewing

the ultimate constitutional question afresh. It also

recognizes that in the new trial context concerns

respecting finality are less strong. 

United States v. Sipe, 388 F.3d 471, 479 (5th Cir. 2004). 

I would adopt the standard of review applied by our sister

circuits. Specifically, I would defer to the district court’s factual findings unless clearly erroneous, “[b]ut once the existence and content of undisclosed evidence has been

established, [treat] the assessment of the materiality of this

evidence under Brady [as] a question of law.” Oruche, 484

F.3d at 595. Here, there is no basis for concluding Judge Carroll was “clearly erroneous” in his finding that Jernigan’s

appearance is markedly different from that of RodriguezGallegos. Indeed, the majority does not even suggest a basis

for finding such error. Accordingly, as discussed below, there

is no basis for finding the non-disclosure of the November

bank robberies was “material” under Brady.

B.

The majority and I also part company over the majority’s

willingness to depart from precedent requiring Brady materiality to be determined on the cumulative effect of the nondisclosed evidence. The majority considers the undisclosed

witness descriptions from the November robberies in isolation

and concludes a Brady violation occurred. The question

before us, however, is whether the cumulative effect of the

undisclosed evidence—including the November 28, 2000 sur8194 UNITED STATES v. JERNIGAN
veillance video and photographs derived therefrom—was a

reasonable probability of a different result. 

“[T]he state’s obligation under Brady v. Maryland to disclose evidence favorable to the defense, turns on the cumulative effect of all such evidence suppressed by the

government.” Kyles, 514 U.S. at 421 (citation omitted). Thus,

although the tendency and force of undisclosed evidence must

be evaluated “item by item; there is no other way,” the materiality of such evidence is a separate determination, based on

the effect of all the evidence, disclosed and undisclosed. Id.

at 436 n.10. Accordingly, the majority is correct in explaining

that when considering whether non-disclosed evidence would

have created a reasonable probability of a different result,

judges must “ ‘undertake a careful, balanced evaluation of the

nature and strength of both the evidence the defense was prevented from presenting and the evidence each side presented

at trial.’ ” Baily v. Rae, 339 F.3d 1107, 1119 (9th Cir. 2003)

(quoting Boss v. Pierce, 263 F.3d 734, 745 (7th Cir. 2001)).

The majority, however, fails to conduct a balanced evaluation of the non-disclosed evidence in this case. Specifically,

in determining Brady materiality the majority considers only

the undisclosed circumstantial evidence that suggests Jernigan

and Rodriguez-Gallegos are of similar appearance, i.e., the

witness descriptions. The majority fails to consider the direct

evidence establishing that Jernigan and Rodriguez-Gallegos

are “markedly different” in appearance, i.e., the November

28, 2000 surveillance video, the photograph of Jernigan, and

Jernigan herself. The majority’s failure to consider the last

item comes as no surprise because, unlike Judge Carroll, the

majority has never had the benefit of seeing Jernigan in person. 

Freed from Kyles’ requirement that the non-disclosed evidence be evaluated “item by item” and that materiality be

determined based on the cumulative effect of all the evidence,

the majority rests its materiality determination on a finding

UNITED STATES v. JERNIGAN 8195
that the November robberies were committed by a woman

“whose description bore an uncanny physical resemblance” to

Jernigan. Having thus erred, the majority speculates the five

eyewitnesses who independently identified Jernigan as committing the September 20, 2000 bank robbery “simply picked

Jernigan out of the photospread because she was the woman

who looked the most like [Rodriguez-Gallegos].”

III.

As the majority explains, the touchstone of Brady materiality is whether admission of the suppressed evidence would

have created a “ ‘reasonable probability’ of a different result.”

Kyles, 514 U.S. at 434. “[T]he prosecution, which alone can

know what is undisclosed, must be assigned the consequent

responsibility to gauge the likely net effect of all such evidence and make disclosure when the point of ‘reasonable

probability’ is reached.” Id. at 437 (emphasis added). Here,

the point of “reasonable probability” was never reached. 

The non-disclosed evidence in this case does not create a

reasonable probability of a different result because it does not

support the inference that the five eyewitness who independently identified Jernigan as having committed the September

20, 2000 bank robbery were mistaken. To do so, the nondisclosed evidence would have to permit the inference that

Jernigan sufficiently resembles Rodriguez-Gallegos such that

Jernigan could be mistaken for Rodriguez-Gallegos. 

Notwithstanding the witness statements, the district court

found the non-disclosed photographs taken from the surveillance video of the November 28, 2000 bank robbery establish

that Jernigan and Rodriguez-Gallegos are “markedly different” in appearance and “do not look alike, whatever similarities may be in their complexions or Hispanic appearance.” In

addition, the district court found “someone having looked at

them under these circumstances would have been able to

make such a determination.” These findings are not clearly

8196 UNITED STATES v. JERNIGAN
erroneous. Moreover, Judge Carroll, who had the benefit of

observing Jernigan during the course of her four-day trial, was

in a better position than this court to determine whether Jernigan resembles Rodriguez-Gallegos. 

In short, I would defer to Judge Carroll’s factual findings,

conduct a de novo review of Brady materiality based on Judge

Carroll’s findings, and affirm. 

UNITED STATES v. JERNIGAN 8197