A Fourth Government Misunderstanding: About Its Brady Obligation Again

July 3, 2012
By Hanging Out with Carl Gunn


  • Brady applies to sentencing mitigation evidence, not just trial evidence.
  • The government often forgets this, so remind them, and if they disagree, remind the court.
  • And make them apply the Judge Pregerson Sudikoffstandard approved by the Ninth Circuit, not the appellate standard for reversal.


I thought I’d add another blog about the government’s misunderstanding of its Brady obligation that’s come up in our office here recently. They seem to think their obligation ends once they’ve squeezed that plea or conviction out of your client. But they (and maybe some of us?) forget that the Bradyobligation applies not just to evidence that’s exculpatory as to guilt but also evidence that’s mitigating for sentencing. Both the continuing nature of the obligation and the government’s tendency to forget are nicely summarized in a Colorado district court opinion as follows:

Brady v. Maryland is two-pronged. Its declaration of a constitutional right to disclosure of exculpatory material says there is mandatory disclosure of anything which bears on guilt or on punishment, and prosecutors all too frequently forget about the second requirement for disclosure.

United States v. Feeney, 501 F. Supp. 1324, 1334 (D. Colo. 1980) (emphasis added). This opinion then goes on to supply a good discussion of how and why Brady applies to mitigating sentencing evidence just as much as exculpatory trial evidence.

And it’s not just a 30-year old Colorado district court opinion you have to work with. For one thing, Brady itself was a sentencing case. See Feeney, 501 F. Supp. at 1334 (“It is deserving of comment that Brady v. Maryland dealt only with punishment.”). While the defendant in Brady was challenging both his conviction and his death sentence, the Supreme Court found the withheld evidence relevant only to sentencing and held it proper for the court of appeals to affirm the conviction but vacate the sentence. See Brady, 373 U.S. at 88, 90-91. This makes sense only if the duty recognized in Brady was one that extended to sentencing as well as trial.

Then there’s court of appeals decisions that recognize the applicability of Brady at sentencing, including our Ninth Circuit. It recognized the applicability of Brady to sentencing in bothUnited States v. Plunk, 153 F.3d 1011 (9th Cir. 1998) and United States v. Mikaelian, 168 F.3d 380 (9th Cir. 1999). In Plunk, the defendant sought undisclosed impeachment information, and the court acknowledged that “[p]ursuant to Brady, ‘the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of the prosecution.’” Plunk, 153 F.3d at 1028. In Mikaelian, the court quoted the same language from Brady that it had quoted inPlunk and cited Plunk as “applying Brady at sentencing.”Mikaelian, 168 F.3d at 388-89. The court did reject the ultimateBrady claims in these cases, but only because in Plunk the information was not in the possession of the prosecution but only in the possession of the attorney for the cooperating witness, see Plunk, 153 F.3d at 1028, and in Mikaelian, the defendant “[d]id not allege that the government ha[d] withheld any evidence favorable to him,” id., 168 F.3d at 389.

There are cases from other circuits in which sentences have actually been vacated because of Brady violations at sentencing, moreover. Examples are United States v. Weintraub, 871 F.2d 1257 (5th Cir. 1989) and United States v. Severson, 3 F.3d 1005 (7th Cir. 1993). In Weintraub, the court vacated a sentence where the government withheld evidence impeaching trial testimony the lower court had relied on in determining drug quantity at sentencing. See Weintraub, 871 F.2d at 1265. InSeverson, the court vacated a sentence and remanded for reconsideration of rulings on the Sentencing Guidelines obstruction of justice and acceptance of responsibility adjustments based on Brady material disclosed by a prosecutor just prior to oral argument. See Severson, 3 F.3d at 1012-13.

So don’t let the government think it’s ethical and due process obligations are over just because it got its guilty plea or conviction. Remind it that its Brady obligation continues. Also remind it – and the court if necessary – of the Judge PregersonSudikoff standard that I discussed two posts ago (see “A Third Government Misunderstanding: About Its Brady Obligation” linked in the “Recent Posts” column at the right) and that has been cited with approval by the Ninth Circuit. It’s not the appellate “materiality” standard – whatever that might mean in the sentencing context – that applies at the district court level. The government is obligated to disclose any “evidence favorable to the accused,” which means any evidence which relates to guilt or punishment, and which tends to help the defense by either bolstering the defense’s case or impeaching prosecution witnesses.” United States v. Sudikoff, 36 F. Supp. 2d 1196, 1199 (C.D. Cal. 1999) (citations omitted) (emphasis added). And for another thought on the difference between that pretrial/presentence Brady standard and the post-conviction/post-sentence standard, consider comments by Justice Kennedy at an oral argument inSmith v. Cain, quoted and discussed in the Ninth Circuit Defender’s blog which is linkedhere.

[W]ith all respect, I think you misspoke when you – when you were asked what is – what the test for when Brady material must be turned over. And you said whether or not there is a reasonable probability – reasonable likelihood; pardon me – a reasonable probability that the result would have been different. That’s the test for when there has been a Brady violation. You don’t determine your Brady obligation by the test of a Brady violation. You’re transposing two very different things. And so that’s incorrect.

And so keep pushing them.