Argued and Submitted December 3, 2012 —Seattle, Washington
Appeal from the United States District Court for the District of Oregon D.C. No. 6:05-cr-60008-HO-2 Michael R. Hogan, District Judge, Presiding
Steven T. Wax (argued), Federal Public Defender, Portland, Oregon; Lawrence Matasar, Lawrence Matasar, P.C., Portland, Oregon, for Defendant-Appellant.
Kelly A. Zusman (argued), Christopher Cardani, and Charles Franklin Gorder, Jr., Assistant United States Attorneys, Office of the United States Attorney for the District of Oregon; Virginia Marie Vander Jagt, Counsel, United States Department of Justice, Washington, D.C., for Plaintiff-Appellee.
Before: Mary M. Schroeder, M. Margaret McKeown, and Richard C. Tallman, Circuit Judges.
The panel affirmed in part and reversed in part a criminal judgment and remanded for a new trial in a tax fraud case – that involved significant amounts of classified materials and in camera, ex parte reviews as well as classified proceedings – stemming from charges that the defendant falsified a 2000 charitable organization tax return in order to conceal his support of an independence movement in Chechnya.
The panel was not persuaded by the defendant's arguments regarding the classified material, the district court's evidentiary decisions, the notion that the government was one-sided in its effort to obtain evidence abroad, or his view that the government's characterization of the evidence rose to the level of a constitutional violation.
The panel held that the government violated its obligations pursuant to Brady v. Maryland by withholding significant impeachment evidence relevant to a central government witness.
After reviewing the classified record, the panel determined that the district court erred in approving an inadequate substitution for classified material that was relevant and helpful to the defense. The panel held that the substitution did not satisfy the requirement in the Classified Information Procedures Act, 18 U.S.C. app. 3 § 6(c)(1), that the summary "provide the defendant with substantially the same ability to make his defense as would disclosure of the specified classified information."
The panel also concluded that the search that the government conducted of the defendant's computer hard drives went well beyond the explicit limitations of the warrant, and remanded to the district court to consider the appropriate scope of items seized and whether the exclusionary rule should apply.
Considering the errors both individually as well as cumulatively in light of the evidence as a whole, the panel concluded that the errors were prejudicial.
The panel filed concurrently, under appropriate seal, a classified opinion with respect to the substitution. That opinion also addresses in more detail the defendant's claim regarding foreign bank records.
Concurring in part and dissenting in part, Judge Tallman wrote that the opinion's recitation of the facts is inappropriately written from the perspective of the defense theory of the case, that the majority unduly constricts the text of the search warrant and disregards the underlying reason for the very existence of the exclusionary rule, that the opinion disregards the district judge's express factual findings and his rulings on the potential impact of challenged witness testimony following an evidentiary hearing, and that the opinion discounts the extraordinary efforts by the Department of Justice to abide by its criminal discovery obligations and the district court's extensive oversight of those efforts in dealing with extremely sensitive national security concerns.
McKEOWN, Circuit Judge
This is a tax fraud case that was transformed into a trial on terrorism. The case stems from charges that Pirouz Sedaghaty (known as Pete Seda) falsified a 2000 charitable organization tax return in order to conceal his support of an independence movement in Chechnya, a republic in the Caucasus mountains of southern Russia. Seda founded the U.S. branch of the Al-Haramain Islamic Foundation, Inc. ("Al-Haramain"), a Saudi Arabian charity that the U.S. government suspected of funding terrorist activities and supporting the Chechen mujahideen (holy warriors engaged in violent jihad against Russian forces) under the guise of humanitarian aid. Seda's defense was based on his claim that any discrepancy on the tax return could be traced to his accountant, as well as on his long history of peaceful engagement on behalf of Islam and his track record of charitable work in the United States and abroad.
The appeal illustrates the fine line between the government's use of relevant evidence to document motive for a cover up and its use of inflammatory, unrelated evidence about Osama Bin-Laden and terrorist activity that prejudices the jury. This tension was evident both before and during trial and dominates much of the briefing on appeal.
Similarly, what was charged as a tax fraud case in fact involved significant amounts of classified materials and multiple in camera, ex parte reviews as well as classified proceedings. These classified proceedings figure prominently in the appeal. To the extent possible, we have written our opinion without reference to classified materials so as to allow the maximum transparency in this criminal case. To supplement this opinion, we are filing concurrently, under appropriate seal, a classified opinion with respect to the substitution—a terse summary that the government provided Seda in place of actual classified documents that are relevant and helpful to his defense. That opinion also addresses in more detail Seda's claim regarding foreign bank records.
We recognize that a system that permits ex parte hearings and requires the court to pass on the legitimacy of claims related to classified information places a heavy burden on the court. We also recognize that defense counsel, who best know their client's interests, are placed at a serious disadvantage in challenging classified proceedings in a vacuum. Toward that end, we take our duty very seriously and undertake our review of classified information with special scrutiny.
Following his conviction for tax violations, Seda challenges a host of rulings. In particular, he takes aim at the prosecution's failure to disclose its interview notes regarding payments to a key witness, the court's handling of classified information under the provisions of the Classified Information Procedures Act ("CIPA"), 18 U.S.C. app. 3, the breadth of computer and other documents seized pursuant to a warrant, and various evidentiary rulings. Seda also claims that he was deprived of a fair trial by the government's refusal to aid him in obtaining evidence from overseas, by its appeal to religious preferences, and by its use of inflammatory evidence of guilt by association.
In the main, we are not persuaded by Seda's arguments regarding the classified material, the district court's evidentiary decisions, the notion that the government was one-sided in its effort to obtain evidence abroad, or his view that the government's characterization of the evidence rose to the level of a constitutional violation. Nonetheless, there were significant errors that merit a new trial.
We conclude that the government violated its obligations pursuant to Brady v. Maryland, 373 U.S. 83 (1963), by withholding significant impeachment evidence relevant to a central government witness. After reviewing the classified record, we also determine that the court erred in approving an inadequate substitution for classified material that was relevant and helpful to the defense. The substitution did not satisfy CIPA's requirement that the summary "provide the defendant with substantially the same ability to make his defense as would disclosure of the specific classified information." 18 U.S.C. app. 3 § 6(c)(1). We reject Seda's remaining challenges to the handling of classified information under CIPA. We also conclude that the search that the government conducted of Seda's computer hard drives went well beyond the explicit limitations of the warrant and remand to the district court to consider the appropriate scope of items seized and whether the exclusionary rule should apply.
We are particularly troubled by the cumulative effect of these errors, which resulted in admitting evidence illegally seized while denying Seda both material impeachment evidence and potentially exculpatory evidence. See United States v. Wallace, 848 F.2d 1464, 1476 (9th Cir. 1988) (emphasizing the cumulative effect of three trial errors improperly admitting impeachment evidence of a defense witness, erroneously bolstering the testimony of a prosecution witness, and admitting defendant's statements that should have been suppressed). Although each of these issues potentially merits a remand or a new trial on its own, given these multiple, significant errors, "'a balkanized, issue-by-issue harmless error review' is far less effective than analyzing the overall effect of all the errors in the context of the evidence introduced at trial. . . ." United States v. Frederick, 78 F.3d 1370, 1381 (9th Cir. 1996) (quoting Wallace, 848 F.2d at 1476). Considering the errors both individually as well as cumulatively in light of the evidence as a whole, we conclude that the errors were prejudicial and reverse and remand for a new trial. As a consequence, we do not address Seda's arguments regarding his sentence.
In the 1990s, Al-Haramain was one of Saudi Arabia's largest non-governmental organizations, with more than fifty offices worldwide distributing humanitarian aid and funding religious education. With close ties to the Saudi government, it has been described by U.S. government officials as the "United Way" of Saudi Arabia. Apart from humanitarian aid and educational materials, however, some Al-Haramain offices distributed funding and other support to terrorists. Based on joint submissions by the governments of the United States and Saudi Arabia, the United Nations implemented sanctions against Al-Haramain offices in eleven countries beginning in 2002. By 2004, the Saudi government had dissolved Al-Haramain altogether. That same year, the United States designated former Al-Haramain principals Aqil Al-Aqil and Soliman Al-Buthe and the U.S. chapter of Al-Haramain as "Specially Designated Global Terrorists" subject to financial sanctions because of their role in providing financial support to terrorist groups. Seda came under investigation by the FBI and the IRS because of his role in the U.S. chapter of Al-Haramain.
Seda moved from his native Iran to Ashland, Oregon, in the 1970s. After attending Southern Oregon University, he became a well-known arborist in the city. With the mission of promoting the understanding of Islam and building bridges within the community, Seda cofounded the Qur'an Foundation with his friend David Rodgers, who had grown up in Ashland. The Qur'an Foundation hosted public lectures and distributed the Qur'an locally and to prisoners who requested copies.
While working as a horse trainer in Saudi Arabia, Rodgers was approached by Al-Haramain officer Al-Buthe, who suggested that Al-Haramain could supply Qur'ans to the Ashland effort. In 1997, the two organizations entered into a partnership to "promote peace through understanding of Islam" and Al-Buthe and Seda opened Al-Haramain's only U.S. branch ("Al-Haramain-U.S."). Al-Aqil became the U.S. branch's president, Al-Buthe its treasurer, and Seda its secretary. Seda opened a bank account for Al-Haramain-U.S. at Bank of America and successfully applied for tax-exempt status.
In late 1999, both Al-Haramain and its U.S. branch solicited funds for aid to the people of Chechnya. Although the efforts of Al-Haramain were conducted under the supervision of the Saudi government and through a separate entity the government created, the Saudi Joint Relief Committee, at trial it was disputed whether these efforts were truly humanitarian in nature or a cover to fund the mujahideen operating in Chechnya.
In February 2000, an engineer and construction executive in England, Dr. Mahmoud Talaat El-Fiki, contacted Al-Haramain saying that he wanted to donate $150, 000 for Chechen relief. Al-Haramain instructed El-Fiki that he could wire the money for "the poor, orphans and refugees" in Chechnya to its Al-Rajhi Bank account in Riyadh, Saudi Arabia, or its Bank of America account in Ashland. El-Fiki transferred $150, 000 to the Al-Haramain-U.S. account in Ashland on February 24, 2000. On March 7, Al-Buthe traveled from Saudi Arabia to Oregon. Seda and Al-Buthe went together to a branch of Bank of America in Ashland on March 10 and met with the branch manager to withdraw $130, 000 in travelers checks. The following day, Seda withdrew a $21, 000 cashier's check made out to Al-Buthe. Al-Buthe later returned to Saudi Arabia, cashed the travelers checks at his bank, and deposited the cashier's check into his personal account, where he often commingled personal money with Al-Haramain funds. The counter check signed by Seda bore the notation "Soliman" and the actual cashier's check deposited by Al-Buthe bore the notation "Donation for Chichania Refugees."
At trial, the significance of Al-Buthe's use of travelers checks was contested. The government characterized the use of travelers checks, as opposed to a less-expensive wire transfer, as highly suspicious and argued that it made the transfer of funds more difficult to trace. The defense pointed out that Al-Buthe regularly brought funds in the form of travelers checks to the United States for Al-Haramain's operating expenses and reported those checks to U.S. Customs, so his use of travelers checks was not unusual, nor did it correlate with an effort to conceal the movement of funds. The bank manager testified that Seda set up an appointment in advance so that he and Al-Buthe could meet with her in person, and that Al-Buthe came in his traditional Saudi dress, produced his passport to be copied for the bank's records, and personally signed each travelers check in front of her.
What happened to the money after Al-Buthe cashed the travelers checks and deposited the cashier's check was also disputed. Seda's attorneys argued that it was given to Al-Haramain and deposited in Al-Rajhi Bank account number 9889, which was used for humanitarian relief in Chechnya. The government represented that "[a]n Al-Haramain employee took most of El-Fiki's money to a representative of Abu 'Umar [a leader of the Chechen mujahideen], to be smuggled into Chechnya, claiming it was for needy Chechen families."
In June 2000, Al-Buthe returned to Ashland, reporting to U.S. Customs $300, 000 in travelers checks from Al-Haramain for the purchase of a building in Springfield, Missouri, to serve as a prayer house. Having already made an initial deposit of $60, 000, Al-Haramain-U.S. then paid $318, 291 to complete the purchase of the Springfield building.
Four days after the September 11, 2001, terrorist attacks, several FBI agents came to speak with Seda. The interviewing agent testified that Seda had volunteered information about Al-Haramain-U.S.'s purchase of the Springfield property and told him Al-Haramain-U.S. had paid between $300, 000 and $325, 000, reflecting the closing price.
One month later, Tom Wilcox, Al-Haramain-U.S.'s accountant and a former IRS agent, filed a Form 990 for Al-Haramain-U.S. for the year 2000, reviewed and signed by Seda. Filing a Form 990 is an annual reporting requirement for tax exempt organizations. The Form 990 was inaccurate in several respects. Line 57a inaccurately represented the cost of the Missouri building purchase as $461, 542 because the $130, 000 withdrawn by Al-Buthe was marked as a payment for the prayer house. Line 1 underestimated the donations that Al-Haramain-U.S. had received because it misdesignated the $21, 000 check to Al-Buthe as a returned donation. Line 22, representing outgoing donations, was also inaccurate because it failed to record whatever portion of the $150, 000 El-Fiki donation was transferred to Al-Haramain.
In 2004, the government obtained a warrant to search for financial records and communications pertaining to the preparation of the 2000 Form 990 and Al-Buthe's failure to report the $150, 000 he was carrying when he left the country. The government searched Seda's house, which doubled as the Al-Haramain-U.S. office and prayer hall, and seized nine computers together with books, videos, and religious materials. Before trial, Seda challenged the seizures as going beyond the scope of the warrant; the district court denied his motion to suppress.
The grand jury indicted Seda, Al-Buthe, and Al-Haramain in a three count indictment. Count One alleged a conspiracy to defraud the United States through the crimes alleged in counts Two and Three, in violation of 18 U.S.C. § 371. Count Two alleged filing a false Form 990, in violation of 26 U.S.C. § 7206(1). Count Three charged Al-Buthe with failing to file a Currency and Monetary Instrument Report (CMIR) form when he left the United States with $150, 000, in violation of 31 U.S.C. § 5316(a)(1)(A). The charges against Al-Haramain were eventually dismissed because, by the time of trial, it was little more than a shell organization.
The central issue at trial was whether the errors on the Form 990 were willful. The prosecution's theory was that Seda wanted to fund the Chechen mujahideen and intentionally reported false information to his accountant in an effort to cover up the diversion of El-Fiki's donation to the mujahideen. The primary defense theory was that Wilcox was responsible for these careless mistakes, that Seda had given the money to Al-Buthe to give to Al-Haramain, and that Seda was transparent and forthright with Wilcox, the FBI, and the public about the disposition of Al-Haramain-U.S.'s funds and his desire to provide humanitarian aid to refugees in Chechnya.
When the IRS questioned Wilcox in June of 2003 about the price of the building as reported on the 2000 tax return, Wilcox said that someone at Al-Haramain-U.S. had prepared the schedule of purchase costs in Quickbooks and that he had just based the purchase price in the tax return on that schedule. At trial, however, Wilcox admitted that he had actually been the one to code the $130, 000 withdrawal of travelers checks as related to the building purchase and that he had created the schedule with the erroneous purchase price. He maintained, however, that the schedule was based on Seda's instructions as to how to categorize the checks.
The parties vigorously debated evidence related to the "money trail." After introducing evidence demonstrating that Al-Buthe cashed the travelers checks in Saudi Arabia and deposited the cashier's check into his own account, the government said that it had followed the money trail as far as it could go and that Al-Buthe's actions were consistent with his misappropriation of some funds and diversion of others to fund the mujahideen. Seda attempted to introduce receipts documenting his transfer of the donation to Al-Buthe, and Al-Buthe's transfer of the donation to Al-Haramain for Chechen relief, but he was unable to authenticate the records.
To establish willfulness, the government called two former members of the Ashland prayer house: David Gartenstein-Ross and Barbara Cabral. Among other subjects, the government questioned Gartenstein-Ross about the distribution of Qur'ans to prisoners, donations made to support Kosovan refugees, and fundraising at the prayer house for two individuals planning to go to Kosovo to fight against the Serbs. Cabral, a convert to Islam who abandoned the religion before trial, described the mosque and prayer services at the Al-Haramain-U.S. prayer house in Ashland as well as Seda's marriage to a Russian-speaking wife. Providing the only direct evidence of Seda's alleged desire to fund the Chechen mujahideen, Cabral testified that Seda solicited funds for the mujahideen in Chechnya after Cabral and others from Oregon joined Seda in a pilgrimage to Mecca sponsored by Al-Haramain.
In addition to the witnesses from the prayer house, the government introduced a number of exhibits seized in the search, including videos related to the Chechen mujahideen, religious edicts regarding support for the Chechen mujahideen, plus emails Seda received and websites Seda visited about Chechnya. The government also introduced an email from Seda to Al-Buthe titled "What support?" that reproduced an excerpt of a published interview with Chechen mujahideen leader Ul-Khattab stating:
I'm sorry to say there is not a single Islamic charity organization active inside Chechnya at present. Only the Red Cross is present in Chechen towns and cities. Therefore, we advise the Muslims in the Muslim countries to take a sincere stand with the Mujahideen in the land of the Caucasus.
The government also relied extensively on the testimony of its expert, Evan Kohlmann, who drew connections between Al-Haramain officials and figures such as Ul-Khattab and Osama Bin-Laden. Kohlmann, who had no direct knowledge of the facts of the case, testified, among other things, that the former director of the Saudi Joint Relief Committee through which Al-Haramain provided relief in Chechnya, had been an "old friend" of Bin-Laden's in the 1980s.
At trial, the government frequently referred to a large (3 foot by 4 foot) chart with photographs of Seda and his co- defendant Al-Buthe, along with a photograph of an Al-Haramain officer in Riyadh who sent out frequent emails about Chechnya, a shadowed cutout of a figure representing Al-Haramain's accountant in Riyadh, and a photograph of the armed mujahideen leader Ul-Khattab, whom Seda did not know and whom Kohlmann had connected to Bin-Laden. The jury also watched a violent video provided by Kohlmann of a training camp for the Chechen mujahideen, which was introduced on the ground that the existence of a still image from the video on Al-Haramain-U.S.'s computers "tended to make it more likely that [Seda] intended that the El-Fiki money end up in the hands of the Chechen mujahideen."
During trial, the government referenced Bin-Laden on five different occasions, including at closing, where the prosecution referred to the director of the Saudi Joint Relief Committee as Bin-Laden's "best friend." The prosecution's arguments repeatedly emphasized the concept of jihad, referring to it thirty-two times over the course of the six-day trial.
The government highlighted Seda's religious activities with Al-Haramain-U.S., including the distribution to prisoners of an edition of the Qur'an (entitled the "Noble Qur'an") supplied by Al-Haramain that contained an appendix called "A Call to Jihad." The prosecution stated at closing:
The Noble Qur'an is the defendant, after he started working for al-Haramain, sending to U.S. prisons around this country, in the thousands, 10 to 15, 000 prisoners, violent people serving time, getting junk like this from al-Haramain saying jihad is an obligation for Muslims.
After offering this statement, the prosecutor threw or tossed the Qur'an onto a courtroom table in front of the jurors. The government did not mention that Seda worked successfully to have Al-Haramain publish for distribution a new edition of the Noble Qur'an without the inflammatory appendix that the government referenced. The defense made no objection at the time, but now cites the prosecutor's statement as an example of the government's inflammatory rhetoric.
The prosecution also insinuated a connection between Seda and violent jihad:
It [i.e., sending Qur'ans to U.S. prisoners] was a huge project sponsored by al-Haramain Saudi Arabia with their Wahhabi, violent jihad propaganda. They get a foothold in the United States. Pete Seda becomes their man. And out goes this hateful, crazy jihad stuff into prisons.
Seda's witnesses testified, among other things, to Al-Haramain-U.S.'s role as a charity, Seda's good character, and his moderate political and religious beliefs. A former Congregational Church pastor in Ashland related Seda's active participation in Ashland's interfaith and peace communities over the twenty years she was a pastor and his role speaking out at a rally against homophobic violence after the murder of a lesbian couple in Ashland in the 1990s. A local rabbi testified about how Seda in the late 1980s began coming to his synagogue to learn about Judaism, how Seda welcomed students from the synagogue's Hebrew school to the Ashland prayer house, and how Seda met with the Israeli Consul General in 2002 in an effort to gather support for a charitable relief effort that could bring together Israelis and Palestinians.
The jury convicted Seda of conspiracy to defraud the United States and filing a false return on behalf of a tax exempt organization. He was sentenced to thirty-three months' imprisonment, three years of supervised release, and restitution to the Department of the Treasury of $80, 980.
After trial but before sentencing, the government produced reports and notes for twelve previously undisclosed interviews the FBI conducted with government witness Barbara Cabral and her husband Richard Cabral. Among other things, the notes and reports revealed to the defense for the first time that the FBI had paid Richard Cabral $14, 500 over the course of the investigation, that at least one of those payments was made in the presence of Barbara Cabral, and that the FBI had made an offer of payment to Barbara Cabral before trial.
Seda filed two separate motions for a new trial: the first motion focused on what he characterized as the prosecution's appeal to prejudice and the second motion, which alternatively sought dismissal of the charges, related to the Brady violation. The district court denied both motions.
I. The Brady Claim
As the district court found, "the only direct evidence about [Seda's] desire to fund the mujahideen, " came from Barbara Cabral, a witness who the prosecution showcased as critical. Despite a defense request, the government withheld material, significant, and non-cumulative impeachment evidence about Cabral, including government payments and interview notes. This Brady violation therefore merits a new trial.
FBI Special Agents contacted Cabral and her husband Richard Cabral, members of the Ashland prayer house, shortly after September 11, 2001. The agents "opened" Cabral as a cooperating witness in 2004 but closed her file in 2006 after deciding that Richard was more likely to be a trial witness. The FBI re-opened Cabral as a witness in 2008 after Richard passed away. The FBI interviewed the Cabrals either individually or together twenty times between 2003 and 2010, paid Richard $14, 500, and offered Barbara additional financial assistance with medical bills after Richard's death. An FBI Special Agent told Cabral that he would seek authorization to pay her $7, 500. Before trial, the district court ordered the government to produce exculpatory materials, materials for impeaching potential witnesses, and agent notes. The government, however, disclosed reports for only eight of the twenty interviews and revealed nothing about payments to either spouse.
Cabral's testimony was the only evidence directly linking Seda to an effort to fund the Chechen mujahideen. Cabral testified that after a Hajj—a pilgrimage to Mecca—that she made with Richard, Seda, and others, Seda asked the group to return to him unused money received from Al-Haramain Saudi Arabia's sponsorship of their Hajj. Cabral quoted Seda as saying the money "would . . . help send blankets and food and help the mujahideen in Chechnya."
After trial, but before sentencing, the government disclosed that it had failed to produce in discovery a significant amount of evidence relating to Cabral. The withheld material documented the previously undisclosed $14, 500 in FBI payments to Richard (including a payment for $5, 000 made in Barbara's presence) and a separate offer of payment to Barbara Cabral shortly before trial when she was experiencing financial difficulty. The materials additionally included a number of undisclosed reports, draft reports, and notes of multiple interviews with both Cabrals as well as handwritten notes of interviews with Barbara Cabral. The government acknowledged that one of the case agents, a member of the prosecution team, knew all of the relevant details of the suppressed material prior to trial. Seda moved for a new trial.
The district court made several findings with regard to Seda's Brady claims. First, the district court found that the withheld information was favorable to Seda because it was impeachment evidence. Second, the district court found that the information was in the government's possession and was withheld by the government. Accordingly, the district concluded that the failure to disclose the information was a discovery violation.
Although the court recognized that "[t]here was some significance to the terrorist issue [i.e., soliciting funds for the mujahideen] because the government ostensibly wanted to establish a reason for the tax fraud, " it nevertheless determined that Cabral's testimony was not material to the conviction because "it did not matter where the money fraudulently reported on the tax return actually went and because of other significant evidence regarding willfulness." The court opined that "the government made great significance of the terrorist aspect of the case and presented a great deal of evidence and argument about the mujahideen in Chechnya" but felt that this argument "was collateral to the charges" because Wilcox was the government's key witness. Even though the district court denied Seda's motion for a new trial, it determined that Cabral's testimony was material to the terrorism sentencing enhancement sought by the government because "this was really the only direct evidence about defendant's desire to fund the mujahideen."
The Brady standard is familiar: "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87. The Supreme Court emphasized that "[s]ociety wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly." Id.
To establish a Brady violation, a defendant must show that: (1) the evidence at issue is favorable to the accused, either because it is exculpatory or because it is impeaching; (2) the evidence was suppressed by the government, regardless of whether the suppression was willful or inadvertent; and (3) the evidence is material to the guilt or innocence of the defendant. See Brady, 373 U.S. at 87; see also United States v. Jernigan, 429 F.3d 1050, 1053 (9th Cir. 2007) (en banc). Although there is no convincing evidence of bad faith on the part of the prosecution, the government concedes, as the district court found, that the withheld information is favorable to Seda and that it should have been turned over before trial. Our Brady analysis therefore hinges on materiality.
We review de novo a district court's denial of a new trial motion based on a Brady violation. See United States v. Pelisamen, 641 F.3d 399, 408 (9th Cir. 2011). Likewise, "the question of 'materiality' is a legal matter that we review de novo." United States v. Price, 566 F.3d 900, 907 n.6 (9th Cir. 2009); see also United States v. Oruche, 484 F.3d 590, 595-96 (D.C. Cir. 2007) ("[O]nce the existence and content of undisclosed evidence has been established, the assessment of the materiality of this evidence under Brady is a question of law."). We see no error in the district court's underlying factual findings and, in any event, the level of deference accorded to those findings is not dispositive here.
In evaluating materiality, we focus on whether the withholding of the evidence undermines our trust in the fairness of the trial and the resulting verdict. The touchstone is the "reasonable probability" of a different result, that is, "not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Kyles v. Whitley, 514 U.S. 419, 434 (1995) (citation omitted).
As the Supreme Court has explained, the test of materiality "is not a sufficiency of evidence test. A defendant need not demonstrate that after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict." Id. at 434–35. "Consistent with 'our overriding concern with the justice of the finding of guilt, ' United States v. Agurs, 427 U.S. at 112, a constitutional error occurs, and the conviction must be reversed, only if the evidence is material in the sense that its suppression undermines confidence in the outcome of the trial." United States v. Bagley, 473 U.S. 667, 678 (1985). Materiality is defined "in terms of suppressed evidence considered collectively, not item by item." Kyles, 514 U.S. at 436.
Here, we zero in on whether the suppressed materials could have provided an effective means of impeachment. This is not a case where the impeachment evidence would have been cumulative or marginal. Rather, as to Cabral, the defense was empty handed at trial precisely because the government did not disclose a substantial amount of relevant information. See Gonzalez v. Wong, 667 F.3d 965, 982 (9th Cir. 2011) ("Where the withheld evidence opens up new avenues for impeachment, [even if significant impeachment evidence was already introduced] it can be argued that it is still material."). Seda consistently denied that he solicited funds for mujahideen after the Hajj, and before trial, Seda moved to exclude Cabral's testimony. Seda's counsel highlighted that "those facts [concerning the request for funds after the Hajj] are contested. We do not believe that that occurred." In response, the government argued strenuously for admission of Cabral's testimony, which it characterized as "critical state of mind, and motive, opportunity evidence." The district court ultimately admitted the testimony, concluding that it was evidence of "motive, opportunity, intent, knowledge, and absence of mistake."
At trial, Cabral presented as a straightforward citizen witness; she had no tawdry or unsavory past and no apparent reason to shade the truth. Of modest means, she worked at J.C. Penney's as a master stylist; her visually impaired husband of thirty-five years had passed away two years before trial. At times relevant to the case, she attended services at the Ashland prayer house, but before trial renounced the Muslim faith. ...