Prosecution may have violated Brady by failing to disclose extent of witness’s relationship with law enforcement. Yepiz and eight other codefendants were convicted of a number of offenses, including violations of the RICO Act. They appealed on various grounds including Brady v. Maryland (1963) 373 U.S. 83, 87. During trial, the prosecution had represented to the defense that none of its witnesses received benefits in exchange for their testimony. On cross-examination, however, one witness, Bulgarian, testified that he had been paid $5,000. While the appeal was pending, the defense discovered that Bulgarian testified in a different case that law enforcement had paid him hundreds of thousands of dollars in exchange for working as an informant. The withholding of that evidence was the basis for defendants’ Brady claim. Held: Reversed and remanded. The prosecution’s suppression of favorable, material evidence from the defense violates due process. Evidence is material if there is a reasonable probability disclosure would have resulted in a different outcome. Disclosure of the additional benefits Bulgarian received and the extent of his relationship with law enforcement could have altered the outcome of defendants’ trial. While there was other evidence admitted during trial that impeached Bulgarian, cumulative impeachment evidence may still be material. (See Carriger v. Stewart (9th Cir. 1997) 132 F.3d 463, 481.) Furthermore, the withheld evidence in this case was not cumulative. Disclosing Bulgarian’s long-standing relationship with law enforcement and that he had received hundreds of thousands of dollars could have caused the jury to disbelieve everything Bulgarian said. Because the government disputes the facts surrounding the timing and extent of the benefits Bulgarian received from law enforcement, the matter was remanded to the district court for factfinding.
Defendants’ Brady claim was not waived even though it was never presented to the trial court. The government asserted that the defendants waived the Brady claim because they did not present it to the trial court. The Ninth Circuit disagreed. The Brady material came to light after the notice of appeal had been filed. Since the filing of the notice of appeal divested the trial court of jurisdiction, “[i]t defies logic to suggest that [the defendant] waived a claim by not raising it before a court that lacked jurisdiction to consider it.” (United States v. Bracy (9th Cir. 1995) 67 F.3d 1421, 1428.)
Failure to rule on defendant’s request for substitution of counsel is structural error that requires reversal. Four months before trial began Yepiz sent the trial court a letter asking it to relieve his retained attorney and to appoint counsel because Yepiz could no longer afford retained counsel. The trial court refused to file the letter and returned it to Yepiz’s counsel unfiled without explanation. Yepiz wrote additional letters requesting that counsel be appointed, but the court found the requests untimely. On appeal, Yepiz argued that the court abused its discretion by failing to rule on his original request for substitution of counsel. The Ninth Circuit agreed, finding the failure was structural error. The Sixth Amendment “right to counsel of choice includes the constitutional right to discharge retained counsel, and a defendant may generally do so for any reason or no reason so long as the substitution would not cause significant delay or inefficiency or run afoul of other considerations such as the fair, efficient, and orderly administration of justice.” (Quoting United States v. Brown (9th Cir.) 785 F.3d 1337, 1349 [internal quotations and alterations omitted].) If retained counsel is discharged and the defendant is indigent, the court must appoint new counsel under the Criminal Justice Act. Here, granting the substitution would not have caused significant delay as the trial was still four months away and this was ample time for new counsel to prepare. The appellate court also refused to find forfeiture based on Yepiz’s failure to reassert his request for appointment of counsel at a suppression hearing a month after he sent the original letter. Yepiz consistently stated that he had issues with his retained attorney and there was no evidence that Yepiz knew why his letter had been rejected. For all he knew, the motion had been denied. The court vacated Yepiz’s conviction and remanded his case for a new trial.
The full opinion is available on the court’s website here: https://cdn.ca9.uscourts.gov/datastore/opinions/2016/12/20/07-50051.pdf