UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


IN RE SEALED CASE (BRADY OBLIGATIONS)


99-3096a

D.C. Cir. 1999


*	*	*


Garland, Circuit Judge: The defendant in this criminal  case contends
that the government improperly denied his  repeated requests for
information to which he was entitled  under Brady v. Maryland, 373
U.S. 83 (1963). The govern- ment responds that because the
information, if it exists, would  relate to the impeachment of a
defense witness, it falls  outside the obligations imposed by Brady.
Defendant replies  that impeachment information always comes within
the ambit  of Brady, regardless whether the witness testifies for the 
defense or the prosecution.


We need not accept either of these broad claims to resolve  this case.
The information defendant seeks would not merely  be impeaching in the
sense that it would weaken the credibili- ty of his own witness.
Rather, it would be exculpatory in the  sense that it would be
affirmatively favorable to his assertion  of innocence. Accordingly,
such information comes within the  scope of the government's Brady
obligations. Because the  government concedes that it has not searched
to determine  whether the requested information exists, we grant the
defen- dant's request that the case be remanded to the district court.
 The government must first search to determine whether the 
information sought by defendant exists and, if it does, the  district
court must then determine whether that information  is "material"
within the meaning of Brady and its progeny.


I


In September 1996, an officer of the District of Columbia's 
Metropolitan Police Department (MPD) applied for a warrant  to search
the home of John Doe1 for a handgun and ammuni- tion. The officer
submitted an affidavit stating that an  unidentified informant had
observed the gun and ammunition  there within the last 48 hours. The
affidavit continued: "The 




__________

n 1 Because this case remains under seal, the names of the defen- dant
and the informant have been changed.


source that provided this information has ... given informa- tion which
has led to the arrests of several subjects for  narcotics violations,
the recovery of one assault weapon, the  arrests of subjects wanted on
warrants and the issuance of  two search warrants." Def. App. 11. A
judge of the Superi- or Court of the District of Columbia granted the
application.


The police executed the warrant the following morning.  The officers
found one semi-automatic handgun under the  mattress in Doe's basement
bedroom, and a second gun,  along with ammunition, in a shoebox under
the basement  stairwell. Doe was arrested and questioned. He denied
the  guns were his, and denied knowing that they were in the  house.
He said he had seen one of the guns in the possession  of a friend,
Thomas Jones, a couple of days earlier. Def.  App., Tab A at 51. Doe's
girlfriend later testified that Doe  and Jones had picked her up at
the hospital the day before  the search, and that after returning to
Doe's house, Jones had  spent some time in the basement alone. Id.,
Tab D at 29-30.


Doe was charged with unlawful possession of a firearm and  ammunition
by a convicted felon, in violation of 18 U.S.C.  s 922(g). In a
pretrial motion filed in October 1996, Doe  sought disclosure of the
identity of the government's infor- mant. Pursuant to Brady, he also
sought production of  information concerning, inter alia: (1) "the
amount of money  ... paid to the source," and whether it was "paid in
exchange  for information or otherwise"; (2) "other consideration pro-
vided to the source, including ... assistance in avoiding or 
minimizing harm from pending or threatened charges"; (3)  "all
benefits, promises of benefits, or statements that the  source would
not benefit absent cooperation ... in connection  with this case"; (4)
"the nature of assistance that the source  has provided in the past";
and (5) "the source's prior record,  pending cases, and parole and
probation status." Def. App.  21. The court denied the request, ruling
that defendant had  not met the burden for piercing the government's
informant  privilege set forth in Roviaro v. United States, 353 U.S.
53  (1957), because "it is basically a position of speculation as to


how the informer in this case might be helpful to the defen- dant ...
as [the case] stands before the Court now...."  Def. App., Tab A at
83.


Shortly before Doe's trial was scheduled to begin, Thomas  Jones called
Doe's attorney, told her that he had helpful  information, and asked
to meet with her. In January 1997,  the attorney, her investigator,
and Jones met in a restaurant  parking lot. According to the
investigator's file memoran- dum, Jones told them that he was the
government informant  in Doe's case and that "he wanted to clear his
conscience."  Def. App. 29. He said that "he had a big gun and drug
case  in [District of Columbia] Superior Court and he had to work  it
off," and identified three detectives with whom he was  cooperating.
Jones said the guns found in Doe's apartment  were his (Jones'). He
said that the day before the execution  of the search warrant, he and
Doe had gone to pick up Doe's  girlfriend at the hospital. When they
returned to the house,  Jones continued, he "hid the guns, one under
the mattress  and one in a box under the stairs." He did not tell Doe
he  was hiding the guns, and Doe did not know what he had done.  Jones
assured Doe's attorney that he would testify at Doe's  trial. At the
same time, he asked for assistance with his own  legal problems: there
was an outstanding bench warrant for  his arrest, and Jones feared
that the police would incarcerate  him at the District of Columbia's
correctional facility at  Lorton, Virginia. "I can't go back to
Lorton," he said,  "because I snitched on so many people." Id.


Doe's trial began a week later. In her opening statement,  Doe's
attorney told the jury the evidence would show that  Doe was innocent,
and that Jones had planted the guns and  ammunition in the house
without Doe's knowledge. Def.  App., Tab C at 12. Thereafter, Doe's
attorney learned from  the attorney in Jones' Superior Court case that
Jones intend- ed to invoke his Fifth Amendment privilege against self-
incrimination and would refuse to testify at Doe's trial. The  next
morning, Doe's attorney advised the court that, in order  to get
Jones' prior statements before the jury, she planned to  introduce
them through the testimony of her investigator as 


statements against Jones' penal interest, see Fed. R. Evid.  804(b)(3).
Def. App., Tab D at 3-4.


At this point, the prosecutor questioned whether Jones  really did have
a Fifth Amendment privilege. After the court  appointed a lawyer to
advise Jones, Jones formally asserted  his right not to testify. The
prosecutor then asked "to speak  with [Jones' lawyer] over the
luncheon recess to see if we can  reach some sort of accommodation ...
which would permit  him [Jones] to testify." Id. at 68. Doe's counsel
then made a  Brady request for Jones' "agreements with the government"
 in what she understood to be his "sealed" cases in Superior  Court.
Id. The prosecutor protested that "I don't have  access to that
information readily. I would have to go back  to my office and try to
pull out the old files and everything  else." Id. The district court
denied Doe's request as "pre- mature," indicating that it did not want
to decide the issue  until it was determined that Jones would testify.
Id. at 68- 69.


After the luncheon recess, Jones agreed to testify and the  government
advised the court that it had agreed to make  arrangements for his
safety. Suspecting that Jones had  become an adverse witness during
the break, defense counsel  again requested production of Jones'
"prior agreements with  the government" and "sealed" case records. The
court again  put off decision, this time indicating it would not
consider the  issue until after Jones testified. Def. App., Tab E at


Jones was then called to the witness stand by Doe's coun- sel. Although
he denied that he had told her the names of  police officers with whom
he was cooperating or that he was  "working off" a conviction in
Superior Court, id. at 22, 27,  Jones admitted that he had told her he
was the confidential  informant in Doe's case, id. at 19. He also
admitted to  confessing that, while he was alone in the basement, he
had  planted the guns under the mattress and stairwell without  Doe's
knowledge. Id. at 19-21.


On cross-examination by the prosecutor, Jones' story  changed
dramatically. He testified that his pre-trial state-


ments to Doe's counsel were lies. The guns, Jones said, were  Doe's.
The day before the search, Doe had taken them out  from underneath the
mattress and stairwell to show to him.  Id. at 33-38. Jones had lied
about planting the weapons, he  said, because "some dudes" had
"threatened, if I didn't call  his lawyer, and tell the guns was mine
some bodily harm  would be done to me." Id. at 27-28. After hearing
Jones'  testimony, defense counsel asked the court to declare him a 
hostile witness and to permit her to cross-examine him. See  Fed. R.
Evid. 611(c). The court agreed. Def. App., Tab E at  39.


At the same time, however, the court rejected defendant's  renewed
request for "information regarding [Jones'] sealed  cases" and
"agreements he's made with the government  regarding those cases." Id.
The court denied the request  regarding the sealed cases saying, "I'm
not going to at this  late juncture make any effort to get those
sealed records  from the Superior Court." Besides, the court said, any
 agreements reflected in the records of those cases "don't have 
anything to do with this case anyway." Id. at 42.


Persistently, but tactfully, defense counsel asked that the  court at
least direct the government to turn over its own  agreements with
Jones, noting "[t]hat doesn't require any- thing from Superior Court."
Id. The prosecutor replied that  there was no agreement in the instant
case, but made no  representation about agreements in other cases.2
She did 




__________

n 2 In its brief before this court, the government states that it has 
"no reason to believe that any agreement existed between the  United
States Attorney's Office and Mr. [Jones] with respect to his  case in
Superior Court." Gov't Br. at 34 n.17 (citing, inter alia,  Gov't
App., Tabs A-F). We are confused by the government's  statement since
its citations, recently prepared transcripts of some  of Jones'
Superior Court appearances, appear to refer to such an  agreement. See
Gov't App., Tab C at 3 (statement by defense  counsel that "[Jones]
has been cooperating with providing informa- tion"; reply by Assistant
U.S. Attorney that "we will need to ensure  that the agreement is
followed through"); id., Tab E at 3 (state- ment by court that at
sentencing "[i]t was included in the represen- tation by prosecution
that the defendant was cooperating"). But 


state, however, that "I think there may be some records that  the
police might have [although] I certainly don't have any- thing right
now." More important, she continued, "I don't  think the government
has an obligation to produce them to  the defense in connection with a
defense witness." Id. The  court agreed, ruling that the government
was not required to  produce records "in regard to a defense witness."
Id. at 43.  The court advised defense counsel that she was free,
however,  to question Jones about any agreements he might have. Id.


Doe's counsel proceeded to do so, but Jones denied being a  "snitch,"
id. at 50, said "I haven't told on anybody," id. at 53,  and denied
having "an agreement with the government," id.  at 57-58. Doe's
counsel did not impeach Jones or otherwise  offer affirmative evidence
of prior agreements or government  cooperation. The jury convicted Doe
of the offenses charged  in the indictment, and the court sentenced
him to 92 months  in prison.


II


In Brady v. Maryland, the Supreme Court held that the  Due Process
Clause imposes upon the prosecution an obli- gation to disclose
"evidence favorable to the accused ...  where the evidence is material
either to guilt or to punish- ment, irrespective of the good faith or
bad faith of the  prosecution." 373 U.S. at 87; see Pennsylvania v.
Ritchie,  480 U.S. 39, 57 (1987). In Giglio v. United States and
United  States v. Bagley, the Court held that "impeachment evidence 
... as well as exculpatory evidence, falls within the Brady  rule."
United States v. Bagley, 473 U.S. 667, 676 (1985)  (quoting Giglio v.
United States, 405 U.S. 150, 154 (1972)). 




__________

n see id., Tab F at 7 (statement by prosecutor that "I have no 
information whether or not the defendant is cooperating"). It may  be
that the government regards the cooperation agreement referred  to in
these transcripts as one involving the police rather than the  U.S.
Attorney's Office. If that is the distinction the government is 
drawing, it is of no moment to its obligations under Brady. See  Kyles
v. Whitley, 514 U.S. 419, 437 (1995); United States v. Brooks,  966
F.2d 1500, 1503 (D.C. Cir. 1992).


And in Kyles v. Whitley, the Court held that the rule includes 
evidence "known only to police investigators and not to the 
prosecutor." 514 U.S. 419, 438 (1995). Hence, to comply  with Brady,
"the individual prosecutor has a duty to learn of  any favorable
evidence known to others acting on the govern- ment's behalf in the
case, including the police." Id. at 437.


As the Supreme Court recently noted in Strickler v.  Greene, courts
have used the term "Brady violation" to cover  a multitude of
prosecutorial sins involving breach of "the  broad obligation to
disclose exculpatory evidence," often  called "Brady material." 119 S.
Ct. 1936, 1948 (1999). These  include both the failure to search for
Brady material and the  failure to produce it. "[S]trictly speaking,"
however, "there is  never a real 'Brady violation' unless the
nondisclosure was so  serious that there is a reasonable probability
that the sup- pressed evidence would have produced a different
verdict."  Id. As the Court explained, a "true Brady violation" has 
three components: "The evidence at issue must be favorable  to the
accused, either because it is exculpatory, or because it  is
impeaching; that evidence must have been suppressed by  the State,
either willfully or inadvertently; and prejudice  must have ensued."
Id. To satisfy the prejudice component,  the withheld evidence must be
"material"; that is, there must  be "a reasonable probability that,
had the evidence been  disclosed to the defense, the result of the
proceeding would  have been different." Id. (quoting Bagley, 473 U.S.
at 676);  see also Kyles, 514 U.S. at 433-34. If the undisclosed evi-
dence is material, a new trial is required. Kyles, 514 U.S. at 


It appears from the parties' briefs that, contrary to Doe's  original
understanding, the records of Jones' Superior Court  cases3 were not
sealed. Gov't Br. at 36 n.21; Oral Arg. Tr.  14-15. Hence, Doe's
request for access to those records is  effectively moot. His request
for the disclosure of agree- ments between Jones and the government,
however, remains 




__________

n 3 Jones has convictions for carrying a pistol without a license, 
attempted possession with intent to distribute cocaine, and attempt-
ed distribution of cocaine. Gov't Br. at 6 n.7.


very much alive. The government's appellate brief advises us  that
Jones did "provid[e] information to the police as a paid  special
employee," Gov't Br. at 34 n.17, and its appendix  discloses that
Jones was required, as a condition of probation  in one of his
Superior Court cases, to cooperate with the  police, see Gov't App.,
Tab C, at 3-4. At oral argument, the  government also advised that "in
candor with the court, it  might involve the FBI, it might involve the
DEA and other  law enforcement agencies" as well. Oral Arg. Tr. at


We therefore proceed to examine the arguments asserted  by the
government in support of its contention that, even if  cooperation
agreements exist, it has no Brady obligation to  produce them. We
conduct this examination de novo, since  whether the government has
breached its obligations under  Brady is a question of law. United
States v. Cuffie, 80 F.3d  514, 517 (D.C. Cir. 1996); United States v.
Lloyd, 71 F.3d 408,  411 (D.C. Cir. 1995).


A


At trial, the prosecutor argued and the court agreed that  Brady did
not apply because Jones was a defense witness.  In response, the
defendant points out that the Supreme  Court's description of the
government's Brady obligations  encompasses evidence that can be used
to impeach the credi- bility of a witness, and does not on its face
distinguish  between impeachment of a prosecution witness and impeach-
ment of a witness for the defense.4 The government replies  that the
Court's references to impeachment in Bagley and  Giglio involved
prosecution witnesses (the same was true in  Strickler), and that
Brady and its progeny therefore do not  require disclosure of
impeachment evidence concerning a  defense witness. "The Due Process
Clause," the government  notes, "does not provide 'a general
constitutional right to  discovery in a criminal case, and Brady did
not create one.' "  Gov't Br. at 17 (quoting Weatherford v. Bursey,




__________

n 4 See Kyles, 514 U.S. at 433 (noting that in Bagley "the Court 
disavowed any difference between exculpatory and impeachment  evidence
for Brady purposes").


559 (1977)). To require disclosure of potential impeachment  regarding
defense witnesses, the government argues, would  effectively "displace
the adversary system as the primary  means by which the truth is
uncovered"--a result not intend- ed by Brady. See Bagley, 473 U.S. at
675; see also United  States v. Agurs, 427 U.S. 97, 109, 112 n.20


In the usual case there is a conceptual difference between  the
impeachment of a government witness and the impeach- ment of a defense
witness. Evidence that impeaches the  former is almost invariably
"favorable" to the accused, be- cause by making the government's case
less credible it en- hances the defendant's chances of acquittal.
Evidence that  impeaches a defense witness, by contrast, is not
generally  favorable to the accused; by reducing the credibility of
the  defendant's own witness, such impeachment reduces the prob-
ability that he will obtain a not guilty verdict. It is ordinarily 
the prosecutor rather than defense counsel who wants to use  the
latter kind of evidence--although she may prefer to delay  its use
(and disclosure) until after the witness testifies, both  to prevent
tailoring of the testimony in expectation of the  cross-examination
and to employ the element of surprise to  expose the witness'


But Doe's is not the usual case involving impeachment of a  defense
witness. First, although it is true that defense  counsel's original
plan was to put Jones on the stand as her  own witness (either
directly or through the testimony of the  investigator), had things
gone as planned she would have had  no reason to impeach Jones'
credibility. It was only after  Jones "flipped" and started testifying
against Doe that de- fense counsel wanted to impeach him, hoping that
evidence of  a cooperation agreement would help her do so by showing 
that Jones lied when he said he had never "snitched" on  anyone.
Hence, even if we were to accept the proposition  that only the
impeachment of a government witness falls  within Brady, by the time
Jones flipped he had effectively  become a government witness--as the
court recognized by  declaring him hostile. See Kyles, 514 U.S. at
445-46 (order- ing new trial where defense could have called informant


adverse witness and effectively used undisclosed evidence as 
impeachment).


Second, and more important, the underlying reason Doe  sought
information about Jones' relationship with the govern- ment was not to
impeach Jones' statement, but to use it as  affirmative evidence of
Doe's own innocence. Indeed, if all  had gone as planned, Doe would
not have used evidence of a  cooperation agreement to impeach Jones'
statement that he  planted the guns, but rather to corroborate it by
exposing his  motive for doing so. With the testimony of Doe's
girlfriend  that Jones had been alone in the basement, Doe had
corrobo- ration of Jones' opportunity to plant the weapons. What he 
needed was evidence of motive, and any of several kinds of 
cooperation agreements might have provided it. See Bagley,  473 U.S.
at 683 (stating that where "the possibility of a  reward had been held
out" to witnesses for providing useful  information, "[t]his
possibility ... gave [the witnesses] a  direct, personal stake in
respondent's conviction").5 For ex- ample, if there were an agreement
that the prosecution would  seek the reduction of Jones' Superior
Court sentences if he  provided "substantial assistance in
investigating or prosecut- ing another person," see Fed. R. Crim. P.
35(b), that agree- ment might have given him a motive to plant the
guns.  Similarly, if cooperation with the police were a condition of 
Jones' continued probation on his Superior Court convictions,  that
might have provided an incentive. And Jones might also  have had a
motive if the police had agreed to pay him in  return for information
leading to successful arrests.6 As  noted above, there is evidence in




__________

n 5 Cf. Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) (vacating 
judgment where court barred cross-examination about prosecutor's 
agreement to drop charge in exchange for witness' promise to speak 
with prosecutor, because "a jury might reasonably have found [it] 
furnished the witness a motive for favoring the prosecution").


6 There is, of course, nothing inappropriate about such agree- ments.
See United States v. Ramsey, 165 F.3d 980, 988-90 (D.C.  Cir. 1999)
(noting legitimacy and law enforcement value of "prose- cutorial
promise(s) of leniency in exchange for truthful testimony"). 


latter two kinds of agreements may exist. See Gov't App.,  Tab C at 3-4
(Superior Court hearing transcript indicating  cooperation with police
was condition of Jones' probation);  Gov't Br. at 34 n.17 (noting that
Jones "provided information  to the police as a paid special
employee"); Oral Arg. Tr. at 29  (noting that Jones may also have had
arrangements with the  FBI and DEA). By providing evidence of motive,
such  agreements would have been relevant to Doe's defense inde-
pendent of any impeachment value they might also have had  once Jones
turned on him.


Finally, as the government conceded at oral argument, in  the
circumstances of this case an agreement that gave Jones  a motive to
plant the guns would be Brady material even if  Jones never appeared
as a witness for either side. Oral Arg.  Tr. at 21, 27; see Kyles, 514
U.S. at 446; United States v.  Lloyd, 992 F.2d 348, 351 (D.C. Cir.
1993). Indeed, in that  respect this case is similar to Kyles, where
the Supreme  Court found that the prosecution violated Brady by
failing to  disclose evidence that an informant who never testified
might  have planted the murder weapon in defendant's apartment,  514
U.S. at 453, including evidence of the informant's motive.  See id. at
429 (noting defense theory that informant planted  gun for purposes of
"removing an impediment to romance  with [Kyles' common-law wife] ...
and obtaining reward  money" from police). That kind of evidence is
exculpatory in  the purest sense, and its relevance does not depend on
who  sponsors its admission. Indeed, once Doe's girlfriend testi- fied
that Jones had been alone in the basement, evidence of  an agreement
giving Jones a motive to plant the guns would  have been admissible
(assuming authentication) even if Jones  had never entered the
courtroom. Accordingly, the fact that 




__________

n And we certainly do not suggest that any such agreement would, or 
could, have authorized Jones to plant the guns. Rather, the point is 
simply that such an agreement may give a person a motive that the 
jury must be permitted to evaluate. See Van Arsdall, 475 U.S. at  679;
Bagley, 473 U.S. at 683; Giglio, 405 U.S. at 154-55; United  States v.
Smith, 77 F.3d 511, 513 (D.C. Cir. 1996).


Jones was originally proffered as a defense witness has no  consequence
for the scope of the government's Brady obli- gations here.


B


The potpourri of other objections to disclosure argued by  the trial
prosecutor and sustained by the trial court are also  unpersuasive.
The court's original rejection of the defen- dant's pretrial Brady
motion correctly rested on the ground  that, as matters then stood,
the informant's identity was  confidential and "how the informer in
this case might be  helpful to the defendant" was speculative. Def.
App., Tab A  at 83. See United States v. Mangum, 100 F.3d 164, 172
(D.C.  Cir. 1996) (upholding nondisclosure of confidential informant's
 identity where defendant's assertion that informant planted  gun in
knapsack was "purely speculative" and there was no  evidence informant
had access to knapsack); United States v.  Warren, 42 F.3d 647, 654
(D.C. Cir. 1994) ("Speculation as to  the information the informant
may provide is insufficient.").  By the time the case went to trial,
however, those factors no  longer applied. Jones had voluntarily
revealed himself to  defense counsel, and had told her he planted the
evidence in  Doe's basement. He had also told her that he was
cooperat- ing with the police in order to work off the gun and drug
case  he had in Superior Court. This, together with the statement  in
the affidavit for the search warrant that the informant had 
previously "given information which has led to the arrests of  several
subjects," Def. App. 11, moved the possibility that a  materially
relevant cooperation agreement existed far beyond  the realm of
speculation. See generally Roviaro, 353 U.S. at  60-65.


Nor is there any basis for the rulings that production of the 
requested information was "premature," first until it was  clear Jones
would testify, and then until after Jones actually  did testify.
Contrary to the prosecution's contention, the  information did not
become relevant only after Jones changed  his story, giving the
defense reason to impeach him. As  noted above, evidence of Jones'
motive was relevant indepen- dent of when or whether he testified.


government's suggestion that ordering a Brady search before  Jones
testified would somehow have been inconsistent with  our admonitions
in United States v. Marshall (made with  reference to Fed. R. Crim. P.
16), that "[t]o give rise to a  disclosure obligation, the evidence's
materiality must, of  course, be evident to a reasonable prosecutor,"
and that the  "prosecutor need not guess that evidence may become
materi- al as a consequence of a defendant's not-yet-revealed strate-
gic decisions." 132 F.3d. 63, 69 n.2 (D.C. Cir. 1998). At least  from
the moment defense counsel made the claim in her  opening statement
that Jones planted the guns, it was clear  that any motive Jones might
have had to do so was relevant  to the case. No clairvoyance on the
part of the prosecutor  was required.


We also reject the government's Catch-22 rationale that  once Jones did
testify, it was by then too late to compel  production of the
information, since doing so would have  required a continuance to
gather the materials. The govern- ment protests that "in the midst of
the trial" it should not  have been required to "scamper" about
searching for the  requested evidence. Gov't Br. at 32. But that
problem could  have been avoided had the government gathered the
material  earlier. In light of the defendant's opening statement, it
was  no excuse the next morning that the prosecutor did not "have 
access to that information readily" and "would have to go  back to my
office and try to pull out old files and everything  else." Def. App.,
Tab D at 68. The same was true that  afternoon, when she said, "I
think there may be some records  that the police might have [but] I
certainly don't have any- thing right now." Id., Tab E at 42. And we
do not under- stand the basis for the government's argument that
"appel- lant cannot credibly complain because he failed to assert a 
timely demand for this impeachment material." Gov't Br. at  40. To the
contrary, defendant made his demands known  early, often, insistently,
and with specificity--only to be met  with the government's claims
that they were first premature,  and then too late. If by the time


ment still needed to "scamper" to collect the requested Brady 
material, it had no one to blame but itself.7


We find equally unfounded the argument that any agree- ments Jones may
have had in his Superior Court cases "don't  have anything to do with
this case." Def. App., Tab E at 42.  Defendant's whole point was that
Jones may have planted the  gun in this case in order to "work off"
obligations that arose  in those Superior Court cases. Hence,
agreements in the  other cases have everything to do with this case.
Nor does it  matter that agreements in other cases may have involved 
other prosecutors. The United States Attorney's Office for  the
District of Columbia prosecutes cases in both the federal  District
Court and the local Superior Court, and the prosecu- tor is
responsible (at a minimum) for all Brady information in  the
possession of that office. See Giglio, 405 U.S. at 154  (holding that
ignorance by one prosecutor of promise made by  another is irrelevant
since "[t]he prosecutor's office is an  entity and ... [a] promise
made by one attorney must be  attributed, for these purposes, to the


For a similar reason, we reject as irrelevant the contention  that the
requested records may have been in the possession  of the Metropolitan
Police Department, or the FBI or DEA,  rather than the U.S. Attorney's
Office. As the Supreme  Court held in Kyles, "[t]he individual
prosecutor has a duty to  learn of any favorable evidence known to the
others acting on  the government's behalf in the case, including the
police." 514  U.S. at 437. Anticipating Kyles, we specifically held in
 United States v. Brooks that prosecutors in this District are 
responsible for disclosing Brady information contained in 




__________

n 7 Indeed, the government knew from the opening bell that it  would at
least have to prepare to conduct its own cross-examination  of Jones.
See Def. App., Tab B at 15 (listing defendant's potential  witnesses).
Hence, it should not have needed the compulsion of  Brady to learn all
it could about him. See Brooks, 966 F.2d at  1502-03 (noting that
"prosecutor's own interest in avoiding surprise  at trial gives him a
very considerable incentive to search accessible  files").


MPD files, "[g]iven the close working relationship between  the
Washington metropolitan police and the U.S. Attorney for  the District
of Columbia (who prosecutes both federal and  District crimes, in both
the federal and Superior courts)."  966 F.2d 1500, 1503 (D.C. Cir.
1992). The same is true for  files of the FBI and DEA which, like the
U.S. Attorney's  Office, are components of the U.S. Department of
Justice.  See id. (noting that Brady requires prosecutors to search
FBI  records).


C


Next, we consider the government's appellate argument  that it did not
breach a disclosure obligation with respect to  Jones' cooperation
agreements because that information was  otherwise available through
"reasonable pre-trial preparation  by the defense." Xydas v. United
States, 445 F.2d 660, 668  (D.C. Cir. 1971). We note at the start that
we find this  argument somewhat surprising. The government concedes 
that it has not yet conducted a full Brady search of its own,  and
hence does not know the details of any agreements Jones  may have had.
See Oral Arg. Tr. at 22-24, 29-30, 38-39. In  particular, the
government advises that it knows nothing of  his arrangements with the
MPD other than that Jones was a  "paid special employee," Gov't Br. at
34 n.17; Oral Arg. Tr. at  29, and nothing at all of any arrangements
he may have with  the FBI or DEA, Oral Arg. Tr. at 38-39. We do not 
understand how the government can confidently assert that  defense
counsel could have learned the contents of Jones'  agreements when the
government concedes that it has no  idea what those contents are.


According to the U.S. Attorney, the first place the defen- dant should
have turned for information about Jones' agree- ments was Jones
himself. Jones, the government points out,  voluntarily contacted
defense counsel and "was, for a time,  cooperative with the defense."
Gov't Br. at 32. "Since  defense counsel had an opportunity to probe
[Jones'] relation- ship with the government ... during their January
...  conversation [in the restaurant parking lot], appellant cannot 


now use Brady as a vehicle to get answers to questions left  unasked at
that time." Id. at 33. Again, we find this  argument surprising. The
government's position at trial was  that virtually everything Jones
said to defense counsel at the  January meeting was a lie, a position
the government main- tains on appeal. Oral Arg. Tr. at 26-27. Surely
information  obtained from a government-certified liar cannot
substitute  for information obtained from the government
itself--particu- larly not when the defense was seeking information
from a  more trustworthy source in order to corroborate (or, as 
became necessary, impeach) that individual.


Second, the government contends that if Doe wanted to  learn of Jones'
agreements with the MPD, he should have  subpoenaed the involved
officers themselves. Gov't Br. at 33.  This argument, too, is
unpersuasive. As we have noted  above, "the prosecutor is responsible
for 'any favorable evi- dence known to the others acting on the
government's behalf  in the case, including the police,' " Strickler,
119 S. Ct. at  1945 n.12 (quoting Kyles, 514 U.S. at 437), and
particularly  including the MPD, see Brooks, 966 F.2d at 1503.
According- ly, defense counsel was no more required to subpoena the 
officers to learn of their agreements, than she was to subpoe- na the
prosecutor to learn of hers. The appropriate way for  defense counsel
to obtain such information was to make a  Brady request of the
prosecutor, just as she did. See United  States v. Iverson, 648 F.2d
737, 739 (D.C. Cir. 1981) (holding  that "the primary obligation for
the disclosure of matters  which are essentially in the prosecutorial
domain lies with the  government"). Indeed, at oral argument the
government  agreed that had Jones been a government witness, it would 
readily have produced his cooperation agreements without  insisting on
a subpoena, Oral Arg. Tr. at 32-33, just as Giglio  and Bagley
contemplate. Since Jones' status as a defense  witness is irrelevant
here, there is no reason to require any  other procedure.


D


Finally, the government argues that Doe was not preju- diced by any
nondisclosure that may have occurred because 


Doe's attorney failed to impeach Jones with the information  she did
have in her possession. When Jones denied under  oath that he had ever
informed on anyone else, Def. App.,  Tab E at 53 ("I haven't told on
anybody"), counsel could have  contradicted him with the sworn
affidavit attached to the  search warrant application, Def. App. 12
("The source has  given information which has led to the arrests of
several  subjects"). She might also have tried to use a representation
 made by Jones' attorney at the bench almost immediately  after Jones
made his denial. Id., Tab E at 61 (advising the  court that there "was
a stipulation of [Jones'] probation to  assist the police on the
street"). Defense counsel did not  attempt to use either one.


There is no doubt that this argument is relevant to the  ultimate
question of the materiality of the undisclosed evi- dence, that is,
whether there was "a reasonable probability  that, had the evidence
been disclosed to the defense, the  result of the proceeding would
have been different." Strick- ler, 119 S. Ct. at 1948 (quoting Bagley,
473 U.S. at 682). But  an evaluation of the significance of the
evidence that was  available to the defense cannot begin until the
government  determines whether there was any evidence that was
unavail- able. If the information the government finds about Jones' 
agreements is the equivalent of that which the defense al- ready had,
then it may well not be material for Brady  purposes. See Iverson, 648
F.2d at 738 ("[N]o violation of  due process results from
prosecutorial nondisclosure if de- fense counsel both knows of the
information and is able to  make use of it but still chooses, for


On the other hand, the evidence that was available to Doe  only
indicated that Jones had cooperated with the govern- ment, and perhaps
that he had an agreement to do so. It did  not disclose, at least not
explicitly, the terms of any such  agreement and whether they gave
Jones a motive to plant the  guns in Doe's house. The latter would not
have been the  equivalent of what the defense already knew and,
depending  on the other facts in the case, may or may not have been 
material for Brady purposes. See United States v. Smith, 77 


F.3d 511, 512-13 (D.C. Cir. 1996) (holding that although  aspects of
witness' plea agreement were known to defense,  undisclosed elements
were material to defendant's ability to  impeach); Cuffie, 80 F.3d at
517-18 ("[T]he fact that other  impeachment evidence was available to
defense counsel does  not [necessarily] render additional impeachment
evidence im- material.") (internal quotations and citations omitted).
Need- less to say, until we know whether such information exists, we 
are unable to determine whether it would have been material.  See
Pennsylvania v. Ritchie, 480 U.S. at 57 ("At this stage, of  course,
it is impossible to say whether any information in the  ... records
may be relevant to [defendant's] claim of inno- cence, because neither
the prosecution nor defense counsel  has seen the information....").


III


The government concedes that it never conducted a full- fledged Brady
search with respect to any agreements its  various components may have
had with Jones. See Oral Arg.  Tr. at 23-24, 29-30, 38-39. For the
reasons stated above,  that failure constituted a breach of the
government's "duty to  search" for Brady information. Brooks, 996 F.2d
at 1502-03.  In their arguments before this court, both the government
 and the defendant agreed that were we to find such a breach  of the
obligation to search, the proper disposition would be to  remand this
case to the district court, "to conduct a further  evidentiary hearing
to resolve whether there exists any Bra- dy information and whether
such information was material."  Gov't Br. at 18 n.11; see Def. Br. at


This is the course we have followed in other cases, see  Brooks, 966
F.2d at 1504-05; United States v. Lloyd, 992  F.2d at 352, and the
course we follow here as well. "On  remand, the district court should
require the U.S. Attorney's  [O]ffice to do what it should have done
earlier," 966 F.2d at  1504, namely, to review information held by
that office, as  well as the MPD and other relevant law enforcement
agen- cies, to determine whether the government has or had any 


agreements with its informant of the kind discussed in this  opinion.
If the government finds that such agreements exist,  the district
court must then determine whether there is "a  reasonable probability
that, had the evidence been disclosed  to the defense, the result of
the proceeding would have been  different." Strickler, 119 S. Ct. at
1948 (quoting Bagley, 473  U.S. at 682).