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Card v. United States6/28/2001
as on the scene. He was in a far better position than we are to assess the atmospherics of the case and to determine whether, given all that had occurred, defense was appreciably prejudiced by any delay in the [Brady] disclosure . . . ."); see also, e.g., United States v. Scarborough, 128 F.3d 1373, 1376 (10th Cir. 1997) ("As long as ultimate disclosure is made before it is too late for the defendant to make use of any benefits of the evidence, Due Process is satisfied.") (internal quotations omitted).
Appellants nevertheless argue that the cumulative effect of such "last minute" disclosures undermined the credibility of the prosecutor. This, they argue, indirectly impinged upon the prosecutor's assurances that certain witnesses were not parties to extensive agreements with the government, who in turn gave false testimony against appellants. Appellants, however, misstate their argument by relying on the cumulative effect the alleged Brady violations had on the prosecutor's credibility. As Kyles makes clear, the relevant inquiry is whether the cumulative effect of suppressed Brady evidence raises a reasonable probability that disclosure would have produced a different result, not whether a prosecutor's repeatedly late disclosures under Brady might otherwise affect the prosecutor's credibility on other matters. 514 U.S. at 421-22. The prosecutor's credibility is not Brady evidence. Without a demonstration of how the late disclosure of the evidence prejudiced their case, the prosecutor's consistently late disclosures cannot form the basis for reversal.
2. Nondisclosure
Appellants also point to other situations where alleged Brady, Giglio, and Jencks material was not disclosed at all during trial. We need not delve too deeply into a discussion of whether or not the various materials should have been disclosed under either Brady or Giglio because appellants have failed to demonstrate the reasonable probability of a different outcome flowing from that evidence.
First, appellants claim that the government was required to produce material relating to the government's favorable treatment of witness Kalvin Bears in exchange for his testimony. After a bench conference on the issue, the trial court denied the Giglio motion of appellants' counsel, as well as the request to hold a hearing as to whether Bears' conviction for utterance was dismissed as a direct result of the prosecutor's intervention. Notwithstanding the trial court's denial, the jury heard substantial evidence of the favorable treatment the government gave Bears, and thus the potential motive to fabricate, as well as his extensive criminal record and prior history of drug abuse.
On direct examination, Bears admitted that he was arrested nine times, and convicted five times, including convictions for armed robbery, and possession of cocaine with intent to distribute. He also testified to both using and distributing illegal substances, and that he was a crack addict at the time of the relevant events. Bears informed the jury that he had recently been arrested on one charge of possession of cocaine with intent to distribute (PWID), one charge of attempted PWID, and one charge of carrying a pistol without a license, that he had pleaded guilty to the charges, and that he faced a mandatory minimum five year sentence up to a maximum of life in prison. He further admitted that the sentencing had been put off, and that he had entered into a limited use immunity agreement with the government in exchange for testifying. That agreement was entered into evidence.
On cross-examination, Bears denied that the government agreed not to charge him in the murder plot. However, he admitted that he had be
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