Defense attorneys in the Ninth Circuit are celebrating the appellate court’s recent decision in United States v. Liew for its explication of the Brady doctrine and its implicit recognition that sometimes FBI agents are not as forthcoming as they should be.
Liew’s attorneys sought to compel the government to turn over FBI agents’ rough notes from their interviews with a key cooperating witness. The FBI had previously produced the official report of its meeting with the cooperator (known as an FBI 302 report), but defense attorneys suspected that the agents’ hand-written notes from the interview would reveal favorable information that had been selectively omitted from the final report.
It turns out Liew’s defense attorneys were likely right: after trial, they interviewed the now-deceased cooperator’s attorney, who provided a declaration attesting that his client had shared favorable information with agents at the meeting which never made its way into the final FBI report. Among other things, the cooperator denied to agents that he ever participated in a criminal conspiracy.
The Northern District Court of California initially denied Liew’s post-trial motion to compel production of the FBI agents’ rough notes. On appeal, the Ninth Circuit reversed and remanded for the District Court to conduct an in camera review of the notes. While observing that “mere speculation” does not require a court to make the materials available for defense inspection, the court held that Liew met his initial burden of producing some evidence to support an inference that the rough notes contained favorable, exculpatory material. Remarkably, the Ninth Circuit so held even after finding that the cooperator’s attorney’s declaration was riddled with errors and inconsistences and of dubious reliability.
Liew is significant for its description of the “low burden” borne by defendants in post-trial Brady motions, as well as for the facts that landed Liew in criminal court in the first place: he was indicted (among other things) for obstruction of justice for making allegedly false statements in response to interrogatories propounded by an opposing party in a civil suit in federal court. While the panel ultimately reversed Liew’s convictions on this count, finding that the discovery response at issue tacked too close to a general denial to constitute obstruction, Liew is a must-read for civil litigators assisting their clients with civil discovery responses in the Ninth Circuit.
The May 5, 2017 opinion in United States v. Liew may be found at http://cdn.ca9.uscourts.gov/datastore/opinions/2017/05/05/14-10367.pdf