{"id":140,"date":"2017-06-05T15:46:55","date_gmt":"2017-06-05T19:46:55","guid":{"rendered":"http:\/\/blogs.duanemorris.com\/whitecollarcriminallaw\/?p=140"},"modified":"2017-06-05T15:46:55","modified_gmt":"2017-06-05T19:46:55","slug":"ninth-circuit-hands-defense-an-important-brady-win","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/whitecollarcriminallaw\/2017\/06\/05\/ninth-circuit-hands-defense-an-important-brady-win\/","title":{"rendered":"Ninth Circuit Hands Defense an Important Brady Win"},"content":{"rendered":"

Defense attorneys in the Ninth Circuit are celebrating the appellate court\u2019s recent decision in United States v. Liew<\/em> for its explication of the Brady <\/em>doctrine and its implicit recognition that sometimes FBI agents are not as forthcoming as they should be.\u00a0<\/p>\n

Liew\u2019s attorneys sought to compel the government to turn over FBI agents\u2019 rough notes from their interviews with a key cooperating witness.\u00a0 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\u2019 hand-written notes from the interview would reveal favorable information that had been selectively omitted from the final report.<\/p>\n

It turns out Liew\u2019s defense attorneys were likely right: after trial, they interviewed the now-deceased cooperator\u2019s 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.\u00a0 Among other things, the cooperator denied to agents that he ever participated in a criminal conspiracy.<\/p>\n

The Northern District Court of California initially denied Liew\u2019s post-trial motion to compel production of the FBI agents\u2019 rough notes.\u00a0 On appeal, the Ninth Circuit reversed and remanded for the District Court to conduct an in camera<\/em> review of the notes.\u00a0 While observing that \u201cmere speculation\u201d 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<\/em> evidence to support an inference that the rough notes contained favorable, exculpatory material.\u00a0 Remarkably, the Ninth Circuit so held even after finding that the cooperator\u2019s attorney\u2019s declaration was riddled with errors and inconsistences and of dubious reliability.<\/p>\n

Liew<\/em> is significant for its description of the \u201clow burden\u201d borne by defendants in post-trial Brady <\/em>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.\u00a0 While the panel ultimately reversed Liew\u2019s convictions on this count, finding that the discovery response at issue tacked too close to a general denial to constitute obstruction, Liew<\/em> is a must-read for civil litigators assisting their clients with civil discovery responses in the Ninth Circuit.<\/p>\n

The May 5, 2017 opinion in United States v. Liew<\/em> may be found\u00a0at\u00a0\u00a0http:\/\/cdn.ca9.uscourts.gov\/datastore\/opinions\/2017\/05\/05\/14-10367.pdf<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

Defense attorneys in the Ninth Circuit are celebrating the appellate court\u2019s 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.\u00a0<\/p>\n","protected":false},"author":280,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2],"tags":[153,154,151,150,152,155],"ppma_author":[247],"class_list":["post-140","post","type-post","status-publish","format-standard","hentry","category-general","tag-brady-doctrine","tag-fbi","tag-karen-lehmann-alexander","tag-u-s-court-of-appeals-for-the-ninth-circuit","tag-united-states-v-liew","tag-witness"],"authors":[{"term_id":247,"user_id":280,"is_guest":0,"slug":"klalexander","display_name":"Karen Lehmann Alexander","avatar_url":"https:\/\/blogs.duanemorris.com\/whitecollarcriminallaw\/wp-content\/uploads\/sites\/11\/2017\/04\/alexanderkaren-125x150.jpg","0":null,"1":"","2":"","3":"","4":"","5":"","6":"","7":"","8":"","9":"","10":""}],"_links":{"self":[{"href":"https:\/\/blogs.duanemorris.com\/whitecollarcriminallaw\/wp-json\/wp\/v2\/posts\/140","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.duanemorris.com\/whitecollarcriminallaw\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.duanemorris.com\/whitecollarcriminallaw\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/whitecollarcriminallaw\/wp-json\/wp\/v2\/users\/280"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/whitecollarcriminallaw\/wp-json\/wp\/v2\/comments?post=140"}],"version-history":[{"count":0,"href":"https:\/\/blogs.duanemorris.com\/whitecollarcriminallaw\/wp-json\/wp\/v2\/posts\/140\/revisions"}],"wp:attachment":[{"href":"https:\/\/blogs.duanemorris.com\/whitecollarcriminallaw\/wp-json\/wp\/v2\/media?parent=140"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/whitecollarcriminallaw\/wp-json\/wp\/v2\/categories?post=140"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/whitecollarcriminallaw\/wp-json\/wp\/v2\/tags?post=140"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/whitecollarcriminallaw\/wp-json\/wp\/v2\/ppma_author?post=140"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}