1 NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v. FLOYD EVERETT HARSHMAN,

Defendants

- Appell ant

. No. 19

- 35131
D.C. Nos. 4:17

- cv - 00022

- RRB

4:12

- cr - 00003

- RRB

- 1

MEMORANDUM *

Appeal from the United States District Court for the District of Alaska Ralph R. Beistline , District Judge , Presiding Argued and Submitted June 1 7 , 2021 Anchorage, Alaska Before: RAWLINSON, CHRISTEN, and R. NELSON, Circuit Judges. Concurrence by Judge R. Nelson. This appeal asks us to decide whether the government’s failure to disclose information regarding Agent Wesley Price’s credibility violated Brady v. Maryland , 373 U.S. 83 (1963), or Giglio v. United States , 405 U.S. 150 (1972). Because the parties are familiar with the facts, we recite only those necessary to resolve the issue on appeal. H arshman claims a Brady/Giglio violation for one of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3. 

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his four criminal counts: firearm possession in furtherance of drug

- trafficking. The district court denied Harshman’s motion pursuant to 28 U.S.C. § 2255 because he did “not establish [] a material due process violation that would justify an evidentiary hearing or a modification of his sentence.” We affirm. Because the government conced e s that it failed to produce information concerning Agent Price that was favorable to Harshman , the issue here is whether the potential impeachment information was material. See United States v. Jernigan , 492 F.3d 1050, 1053 (9th Cir. 2007) (en banc). “Failure to disclose information only constitutes a Brady violation if the requested information is

‘ material’ to the defense.” Sanchez v. United States , 50 F.3d 1448, 1454 (9th Cir. 1995)

. “Although the usual standard of materiality is whether the failure to disclose the evidence ‘undermines confidence in the outcome of the trial,’ the issue in a case involving a guilty plea is whether there is a reasonable probability that but for the failure to disclose the Brady material, the defendant would have refused to plead and would have gone to trial.” Id. (quoting United States v. Bagley , 473 U.S. 667, 678 (1985)). “[T]he test for whether the defendant would have chosen to go to trial is an objective one that centers on ‘the likely persuasiveness of the withheld information.’” Sanchez , 50 F.3d at 1454 (quot ation omitted). Harshman argues that disclosure of potential impeachment evidence concerning Agent Price , the sole witness at an evidentiary hearing contesting3

statements Harshman made to Price about ownership of the firearm , would have led to: (1) granting of his suppression motion; (2) no guilty plea; and (3) no conviction at trial. Harshman also contends that the government might have declined to pursue the charge of firearm possession in furtherance of drug

trafficking. We disagree. Harshman cannot show materiality because any “likely persuasiveness of the withheld information” is marginal. Sanchez , 50 F.3d at 1454 (quotation omitted). The modest impeachment value of the evidence is diminished by : (1) Harshman’s

own ership of the ATCO

- trailer unit containing the firearm; (2) corroborating testimony, including co

- conspirator statements; (3) Harshman’s lead role in the marijuana

- growing operation; and (4) the three other drug

- trafficking counts that Harshman faced, each of which carried a maximum of 20 years imprisonment. Consistent with the application of an objective standard for materiality

— whether the defendant would have refused to plead guilty and insisted on trial based on withheld information

— Harshman’s ass ertion that disclosure about Agent Price’s credibility would have affected his decision to plead guilty is unsupported by the record.
AFFIRMED.1 USA v. Harshman , No. 19
- 35131 R. Nelson , Circuit Judge, concurring:
I agree with the majority’s conclusion t o affirm the district court. I write separately to address potential implications of United States v. Ruiz , 536 U.S. 622 (2002) , on a claim of a Brady/Giglio violation before a plea agreement . Because the government did not raise Ruiz , the panel need not address this issue in this case

. But in a future case, our holding in Smith v. Baldwin , 510 F.3d 1127 (9th Cir. 2007) (en banc) , may be in tension with Ruiz

. The threshold issue in this case is whether the government has a constitutional duty to disclose Brady / Giglio impeachment information to a defendant accepting a plea deal prior to trial. In Ruiz , the Supreme Court squarely held that the “ Constitution does not require the Government to disclose material impeachment evidence prior to entering a plea agreement with a criminal defendant.” Ruiz , 536 U.S. at 633 . “The degree of help that impeachment information can provide will depend upon the defendant’s own independent knowledge of the prosecution’s potential case

— a matter that the Constitution does not require prosecutors to disclose.” Id . at 630. In other words, a defendant’s due process right is not violated when the government withholds impeachment evid ence during the pretrial bargaining process that results in the entry of a plea. 

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U.S. COURT OF APPEALS2 What the Supreme Court arguably did not directly resolve in Ruiz is whether the same standard applies when the government withholds exculpatory evidence prior to entering a plea agreement. The constitutional question before the Court “concern[ed] a federal criminal defendant ’ s waiver of the right to receive from prosecutors exculpatory impeachment material

— a right that the Constitution provides as part of its basic ‘ fair trial ’ guarantee. ” Ruiz , 536 U.S. at 628

. In answering th is question, the Court recognized several consid erations. “ First, impeachment information is special in relation to the fairness of a trial, not in respect to whether a plea is voluntary ( ‘ knowing, ’ ‘ intelligent, ’ and ‘ sufficient[ly]

aware ’ ). ” Id . at 629 . Second, “ the Constitution, in respect to a de fendant ’ s awareness of relevant circumstances, does not require complete knowledge of the relevant circumstances, but permits a court to accept a guilty plea, with its accompanying waiver of various constitutional rights, despite various forms of misappreh ension under which a defendant might labor. ” Id . at 630

. “ Third, due process considerations, the very considerations that led this Court to find trial

related rights to exculpatory and impeachment information in Brady and Giglio ” argue against “ a constit utional obligation to provide impeachment information during plea bargaining, prior to entry of a guilty plea .” Id . at 631

. S ee also McCann v. Mangialardi , 337 F.3d 782, 788 (7th Cir. 2003) ( “ Ruiz indicates a significant distinction between impeachment information and exculpatory evidence3 of actual innocence” and “[g]iven this distinction, it is highly likely that the Supreme Court would find a violation of the Due Process Clause if prosecutors

. . . have knowledge of a criminal defendant ’ s factual innocence but fail to disclose such information to a defendant before he enters into a guilty plea” ). O ur prior precedent does not distinguish between impeachment and exculpatory evidence for Brady / Gigli o purposes when applied to a defendant’s guilty plea.
In Smith , we held that the “ state ’ s withholding of the results of [a] polygraph examination [did not] constitute sufficient cause and prejudice to excuse the procedural default resulting from [defen dant’s] failure to exhaust his state remedies. ” 510 F.3d at 1130

. Our well

- reasoned dicta explained the governing principles: “ Under Brady, the prosecution may not withhold any evidence that is material and favorable to the accused. ” Id. at 1148 ( citati ons omitted). “ ‘[T]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensue d.’ ” Id. (citing Hovey v. Ayers, 458 F.3d 892, 916 (9th Cir. 2006)). ” 1 Our binding precedent, see

1 W e never cite d Ruiz in Smith , instead relying on Hovey , which in turn quoted the Supreme Court’s decision in Banks v. Dretke , 540 U.S. 668, 691 (2004)

. Banks dealt with a defendant who was convicted at trial, not one who pleaded guilty

. 540 U.S. at 682. We then proceed ed straight to the materiality analysis following Sanchez v. United States

. S ee Smi t h , 510 F.3d at 1148 ( “When the accused enters a plea rather than proceeding to trial, however, materiality is determined by ‘whether there is a reasonable probability that but for the failure to disclose4 Li v. Holder , 738 F.3d 1160, 1164 n.2 (9th Cir. 2013) , thus stands for a proposition that may not entirely reflect the plain holding in Ruiz . An extension of Brady / Giglio to material impeachment information in the guilty plea context would seem inconsistent with Ruiz

. In precedent post

- Ruiz and Smith , a s well as our unpublished decisions , we have generally held that the Constitution requires the government to disclose material evidence , whether impeachment or exculpatory, prior to a defendant’s entry of a guilty plea. See , e.g. , United States v. Lucas , 841 F.3d 796, 807 (9th Cir. 2016) (“ A reasonable probability is one t hat is ‘ sufficient to undermine confidence in the outcome ’ of either the defendant ’ s guilty plea or trial. ” (citing Smith , 510 F.3d at 1148 ); United States v. Delemus , 828 F. App’x 380, 381

– 82 (9th Cir. 2020); Marr v. United States , 5 85 F. App ’ x 438, 439 (9th Cir. 2014) ; but see United States v. Berghoudian , 44 F. App’x 205, 207 (9th Cir. 2002) ( concluding
Ruiz foreclosed defendant’s argument that the prosecution withheld impeachment information )

. But p recedent from our sister circuits , relying on Ruiz , generally support that there is “ no constitutional right to Brady material prior to a guilty plea. ” See
A lvarez v. City of Brownsville , 904 F.3d 382, 392 (5th Cir. 2018) ; s ee also, e.g. ,

the Brady material, the defendant would have refused to plead and would have gone to trial.’” (quoting Sanchez , 50 F.3d 1448, 1454 (9th Cir. 1995) ) )

.5 United States v. Conroy , 567 F.3d 174, 179 (5th Cir. 2009) (reasoning that “ Ruiz never ma[de]

. . . a distinction” between exculpatory evidence and impeachment evidence ; ” “n or can this proposition be implied from its discussion , ” thus “Conroy’s guilty plea precludes her from claiming that the government ’ s failure to disclose the FBI report was a Brady violation ”); Robertson v. Lucas , 753 F.3d 606,
621

– 22 (6th Cir. 2014) ( declining to “ decide whether [defendants] have a constitutional right to receive exculpatory Brady material from law enforcement prior to entering into a plea agreement ” but concluding state and federal officials
were “ under no clearly established obligati on to disclose exculpatory Brady material to the prosecutors in time to be put to effective use in plea bargaining”); United States v. Mathur , 624 F.3d 498, 507 (1st Cir. 2010) ( explaining that “[i]n urging us to extend Brady’s prejudice component to pretr ial plea negotiations, the defendant exhorts us to break new ground” and the fact that “plea negotiations are important” “provides no support for an unprecedented expansion of Brady ”). The panel follow s our prior precedent , as it must, in rejecting Defen dant’ s claim. In my view, however, under Ruiz , the question should be far simpler

— potential impeachment evidence cannot constitute a Brady/Giglio violation for purposes of a plea deal. And in some future case, this may need to be addressed.