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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

–————

No. 01–3011 September Term, 2002

95cr00297–02

Filed On: April 25, 2003

UNITED STATES OF AMERICA,

APPELLEE

v.

ROBERT GALE,

APPELLANT

–————

BEFORE: RANDOLPH and ROGERS, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

O R D E R

Upon consideration of appellant’s petition for rehearing

filed February 21, 2003, and the opposition thereto, it is

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

 BY:

 Michael C. McGrail

 Deputy Clerk
2

A separate statement of Senior Circuit Judge WILLIAMS,

explaining the denial of rehearing, in which Circuit Judge

RANDOLPH joins, is attached.

Circuit Judge ROGERS would grant the petition for rehearing.

A separate statement of Circuit Judge ROGERS dissenting

from the denial of rehearing is also attached.
1

WILLIAMS, Senior Circuit Judge, with whom RANDOLPH,

Circuit Judge, joins: Petitioning for rehearing, Gale calls our

attention to a sentence in United States v. Smith, 77 F.3d 510

(D.C. Cir. 1996). The government there had failed to disclose

some powerful impeachment evidence against a key government witness, including the government’s agreement to dismiss certain D.C. Superior Court felony charges. The witness, in turn, testified falsely, omitting this agreement from

his testimony about potential benefits from cooperation.

Finding a Brady violation that required a new trial, we

said, ‘‘We must assume that, had the government disclosed

the information regarding the dismissed Superior Court

charges, the witness would have testified exactly as he did.’’

77 F.3d at 516. Gale argues that this line in Smith precludes

us from inferring that if Brown’s prior perjuries had been

disclosed to the defense here, the government would have

simply used another expert witness. See 314 F.3d at 4–5.

But in Smith the sentence now pinpointed by Gale appeared in the context of a government claim that the witness’s false statement was unintentional. Responding to the

claim of mistake, the court stated that a witness’s good faith

is irrelevant to materiality under Brady, and that the court

would assume that his testimony would have remained unchanged. But there is nothing in Smith to suggest that the

government was arguing that disclosure would have been

accompanied by a change in government strategy. So far as

appears, we spoke of the necessity of assuming unchanging

testimony simply in response to the thought that the witness,

having acted unintentionally (rather than being a casehardened perjurer), would likely have come clean.

Gale’s broader construction of Smith would render it inconsistent with our approach in United States v. Bowie, 198 F.3d

905, 909–12 (D.C. Cir. 1999), where we evaluated the effects

of disclosure dynamically, taking into account readily foreseeable changes in prosecution strategy and witness testimony.

There it seemed obvious to us that if the defense used the

impeachment evidence that had been withheld in violation of

Brady, the prosecution would have responded with rehabilitating testimony, rendering the Brady violation immaterial.

198 F.3d at 911–12. Here the obviously foreseeable change in
2

strategy is replacement of an easily replaced witness rather

than addition of new testimony, but we see no distinction.

Gale’s proposed reading of Smith would preclude consideration of such changes and is therefore incorrect in light of

Bowie.

Also, Gale argues that we were required to perform the

materiality inquiry ‘‘in light of the trial that occurred, not

some hypothetical trial that might have taken place.’’ Petition at 10. But the materiality inquiry plainly requires us to

hypothesize about what ‘‘would have’’ occurred in the event of

disclosure. Smith, 77 F.3d at 514 (quoting United States v.

Bagley, 473 U.S. 667 (1985)). Gale does not really deny that

some hypothesizing is required, but rather insists that we

consider only changes the defense would have made, not

those of the government. Petition at 9–10.

We reject this ‘‘defense-only’’ view of the materiality test.

The test requires us to consider whether, with disclosure by

the government, there would be ‘‘a ‘reasonable probability’ of

a different result.’’ Kyles v. Whitley, 514 U.S. 419, 434

(1995) (citations omitted). That standard plainly requires

analysis of ‘‘reasonable’’ alternatives. Gale asked us to consider one alternative: the government discloses and then

plunges doggedly ahead. The government proposed another:

the government discloses and makes a rather obvious strategic adjustment, picking a different, untainted expert. His alternative is unreasonable, the government’s reasonable.

Kyles requires that we pick the latter. Contrary to the claim

of his petition, there is no issue whether to consider an

alternative scenario; the only issue is whether we should

focus on reasonable alternatives, and Kyles says we should.
1

ROGERS, Circuit Judge: I would grant rehearing to eliminate any suggestion in United States v. Gale, 314 F.3d 1 (D.C.

Cir. 2003), that this circuit has adopted a rule of ‘‘readily

replaceable’’ witnesses as part of its materiality analysis of

Brady violations under Kyles v. Whitley, 514 U.S. 419, 434

(1995). Petition for Rehearing and Rehearing En Banc at 3.

Under Kyles, ‘‘[a] ‘reasonable probability’ of different result

is TTT shown when the government’s evidentiary suppression

‘undermines confidence in the outcome of the trial.’ ’’ Id.

(quoting United States v. Bagley, 473 U.S. 667, 678 (1985)).

Suffice it to say, the court in United States v. Smith, 77 F.3d

511 (D.C. Cir. 1996), explained, ‘‘we must decide whether the

undisclosed information could have substantially affected the

efforts of defense counsel to impeach the witness, thereby

calling into question the fairness of the ultimate verdict.’’ 77

F.3d at 515. Thus, in United States v. Bowie, 198 F.3d 905,

909–12 (D.C. Cir. 1999), the court considered how the trial

might have proceeded had there been no Brady violation and

concluded that because Federal Rule of Evidence 801 afforded the government a means to rehabilitate the fact-witness’s

credibility, the defendant had failed to show that he was

denied a fair trial. At no point, however, did the court in

Bowie rely on a revision of either the trial witnesses who

testified or the testimony that those witnesses provided.

That is consistent with the admonition in Smith that ‘‘[w]e

must assume that, had the Government disclosed the information TTT, the witness would still have testified exactly as he

did.’’ 77 F.3d at 516. It is also consistent with Kyles, which

at no point suggests that the reviewing court should focus

other than on the trial that actually happened. 514 U.S. at

433–34. Accordingly, discussion of how the government

might have proceeded at a new trial with a different expert,

much less the good faith of the prosecutor and testimony in

another case, is besides the point.