                                                 NOT PRECEDENTIAL
                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              _____________

                                   No. 09-2273
                                  _____________

                               KENRICK MAYNARD,
                                           Appellant,
                                       v.

                  GOVERNMENT OF THE VIRGIN ISLANDS

                                  _____________

                     On Appeal from the District Court of the
                       Virgin Islands - Appellate Division
                                (D.C. No. 01-cr-325)
                      Chief Judge: Hon. Raymond L. Finch
                      District Judge: Hon. Curtis V. Gomez
                   Superior Court Judge: Hon. Patricia D. Steele
                                 _______________

                                Argued May 5, 2010

           Before: SMITH, CHAGARES and JORDAN, Circuit Judges.

                               (Filed August 25, 2010)
                                  _______________

Michael C. Quinn [ARGUED]
Dudley, Topper & Feuerzeig
1000 Frederiksberg Gade
P.O. Box 756
St. Thomas, VI 00804
       Counsel for Appellant
Elliott Davis
Richard S. Davis [ARGUED]
Joel H. Feld
Department of Justice
34-38 Kronprindsens Gade, GERS Complex, 2 nd Fl.
Charlotte Amalie
St. Thomas, VI 00802
        Counsel for Appellee
                               _______________

                                OPINION OF THE COURT
                                    _______________

JORDAN, Circuit Judge.

       Kenrick Maynard appeals from the judgment of the Appellate Division of the

District Court of the Virgin Islands of the United States, which affirmed the judgment of

the Superior Court of the Virgin Islands1 sentencing him to life imprisonment following

his conviction for first degree murder. Maynard contends that the government violated

Brady v. Maryland, 373 U.S. 83 (1963), when it failed to disclose the identities of

individuals who were potentially linked to the murder weapon and the drug treatment

history of a key prosecution witness. For the reasons that follow, we will affirm.

However, we note that the prosecutor involved in Maynard’s case exhibited a disturbing

disregard for his obligation to respond to the defendant’s production requests and that his

actions should prompt the Attorney General of the Virgin Islands to undertake remedial

action to prevent similar prosecutorial neglect in the future.

  1
   The Superior Court was known as the Territorial Court of the Virgin Islands at the
time of Maynard’s sentencing. For ease of reference, we identify the tribunal using its
current name.

                                              2
I.       Background

         The criminal prosecution against Maynard arises from separate incidents in which

he allegedly assaulted Leslie Hyman and murdered Hyman’s father, Adolph Hyman, Sr.

For purposes of completeness, we will relate the facts from which all charges arise;

however, the Brady challenges raised on appeal pertain exclusively to the murder of

Adolph, Sr.2

         A.    The Assault and Murder Underlying Maynard’s Prosecution

         On July 4, 1999, Leslie and his cousin, Kimba George, attended the festival of

Carnival3 on the island of St. John in the United States Virgin Islands. According to both

men’s trial testimony, Maynard approached them at the festival and punched George

twice before retreating into the crowd. Later, as Leslie and George were leaving the

festival, Maynard and his brother, Ricky Kanasha,4 again accosted them. Maynard

allegedly stabbed George’s hand with a six-inch blade, and George responded by wresting

the weapon from Maynard’s grasp, knocking him to the ground, and stabbing him four


     2
   Because several members of the Hyman family are involved in this case, we refer to
them using their first names.
     3
   Carnival, as celebrated in the Virgin Islands, is not the same as the Carnival festivities
that are held during the week preceding Lent in much of Catholic-influenced Latin
America. The Virgin Islands Carnival, which has no religious significance, is a “cultural
exposition of music, food, and festivities.” (Appellee’s Ans. Br. at 5.)
     4
    Ricky’s surname is unclear from the record. George testified that Ricky is known as
Ricky Kanasha, while Leslie identified him as Ricky Maynard. For purposes of
differentiating between the brothers, we refer to Kenrick as “Maynard” and Ricky as
“Kanasha.”

                                              3
times with the same blade. As this was happening, Kanasha attempted to hit George with

a chair that was sitting nearby. Leslie rushed to George’s defense and stabbed Kanasha

with a four-inch switchblade. The struggle then subsided, and the four men went their

separate ways.

       Three weeks later, on the night of July 26, 1999, Leslie was shot five times while

exiting a tavern on the island of St. Thomas. He survived, and, when the police

responded to the incident, Leslie informed them that he did not know who had assaulted

him. At trial two years later, however, Leslie testified that Maynard was responsible for

the shooting.

       On July 28, 1999, two days after the tavern shooting, Leslie’s father, Adolph

Hyman, Sr., and his brother, Adolph Hyman, Jr., were walking along a road at night with

Maria Weeks, Adolph, Sr.’s common law wife. Adolph, Sr., Weeks, and Adolph, Jr. had

been stranded after their car stalled. As they walked, they observed an individual they

knew only as “Baylor” signal to someone whom they could not see, and they were

initially confused by the gesture. Soon after Baylor’s signal, however, they saw Maynard

approaching them rapidly on foot, brandishing a firearm that Adolph, Jr. described as “a

big gun.” (App. at 226.) All three turned and fled, and Adolph, Jr. soon pulled ahead of

Adolph, Sr. and Weeks. Adolph, Jr. testified that he looked back as he ran and saw

Maynard “right behind [Adolph, Sr.], shooting after him.” (Id. at 229.) The shots passed




                                            4
through Adolph, Sr.’s upper body, causing his shirt to become blood-stained as he ran.

Adolph, Jr. then rounded a corner, which obscured the scene from his view.

       Weeks corroborated Adolph, Jr.’s testimony. She explained that she was several

paces behind Adolph, Sr., that she tried unsuccessfully to jump over a wall along the side

of the road, and that Maynard passed her as she did so. She then mounted the wall and

watched as Maynard shot the fleeing Adolph, Sr. five times in the back, eventually

causing him to fall face-down on the pavement. She testified that Maynard stopped,

stood over Adolph, Sr.’s body, and fired seven more shots into his back. Adolph, Sr. died

as a result of the assault.

       Police responded to the scene, where they recovered sixteen shell casings and a

bullet, which were catalogued and retained in the police department’s evidence locker. A

warrant was issued for Maynard’s arrest, but he was not immediately apprehended. The

record contains no indication of what, if any, investigation occurred from the time of the

murder until early 2000.

       Within days after the fatal shooting of Adolph, Sr., Maynard fled to Atlanta,

Georgia, where he assumed the name of Samuel Blyden. According to Maynard, he

moved after the July 4 stabbing incident at the Carnival festival on St. John. He claimed

that he never saw his attackers and did not know their identities. He also claimed to

believe that fleeing under a false identity was necessary to protect his safety.




                                              5
       B.     Discovery of the Murder Weapon

       On January 1, 2000, Virgin Islands police officers heard shots being fired in the

Hospital Ground area of St. Thomas. They investigated the gunfire and apprehended six

individuals (hereinafter “the January 1 arrestees”) who were about to flee the scene. They

also discovered several spent shell casings nearby. The individuals had no weapons in

their possession, but police seized two high-caliber firearms, an AK-47 and an MP-45,

which were hidden near the scene of the arrest.5 No one had been injured by the shots,

and the record contains no indication of whether any of the six arrestees were actually

connected to the firearms. The arrestees were initially charged with firearms-related

offenses, but those charges were later dropped because the government could not link any

of them to either the AK-47 or the MP-45.

       For reasons not discussed in the record, the Virgin Islands police suspected that the

AK-47 may have been used in the murder of Adolph, Sr., and they submitted the gun

seized on January 1 and the casings collected at the time of the murder to a firearms

examiner at the Federal Bureau of Investigation. According to the examiner’s trial

testimony, at least ten of the casings collected at the scene of Adolph, Sr.’s murder were

fired using the AK-47.



  5
    A firearms examiner for the Federal Bureau of Investigation testified that one of the
firearms was technically a Mac-90, which is a civilian version of the better known AK-
47. However, the parties described the gun as an AK-47 at trial and in briefing submitted
to our court. We adopt the parties’ convention of referring to the weapon as an AK-47,
even though that description appears to be technically incorrect.

                                             6
       C.     Prosecution of Maynard

       The discovery of the AK-47 prompted police to devote renewed attention to the

warrant for Maynard’s arrest, which remained outstanding. Through means not described

in the record, police discovered that Maynard had fled to Atlanta, and they filed a request

for extradition with Georgia state authorities, who apprehended him. Maynard

voluntarily agreed to be extradited to the Virgin Islands, where he was charged with

assault in connection with the shooting of Leslie and with first degree murder in

connection with the death of Adolph, Sr.

              1.     Pretrial Proceedings

       During the final pretrial conference on September 10, 2001, Maynard’s attorney

requested disclosure of two pieces of information. First, Maynard requested disclosure of

the names of the January 1 arrestees. As part of the government’s pretrial disclosures, the

prosecution had given Maynard several documents that identified the arrestees using

arrest numbers rather than their names. The prosecutor, Assistant Attorney General

Lofton Holder, represented that the arrestees’ names were in a document listing property

seized during the arrest. The prosecutor further stated that the document with the names

had already been provided to the defense. He said that the government “ha[d] no further

information” and that defense counsel was “asking for blood out of a rock.” (Id. at 106.)

Maynard contends – and the government does not now dispute – that the arrestees’

identities did not, in fact, appear in that document.



                                              7
         Second, Maynard was aware from personal knowledge that Weeks had a history of

using crack cocaine, and defense counsel requested any records in the government’s

possession regarding Weeks’s drug use or treatment. The prosecutor responded that he

had “no knowledge” of any such information. (Id. at 108.) Defense counsel asked the

government to check for records about Weeks with the Mental Health and Substance

Abuse Clinic, a division of the Virgin Islands Department of Health. Two days later, the

prosecutor responded that he had contacted the clinic but that, without a court order,

clinic personnel would not discuss whether records existed for Weeks. Neither party

requested any such court order, and the prosecutor did not take any other steps to obtain

the records.

               2.    Trial

         Trial commenced in the Superior Court on September 24, 2001. Maynard renewed

both of his disclosure requests in advance of opening statements to the jury. With respect

to the identities of the January 1 arrestees, the prosecutor said, “I have provided counsel

with all of the documents in my possession with reference to the recovery of t[he]

weapon,” and he went on to assert that none of those documents contained the identity of

the arrestees.6 (Id. at 128.) He also reiterated that he had contacted the Substance Abuse

Clinic but could not obtain Weeks’s treatment records without a court order. Trial then

began.

  6
   That assertion was manifestly inconsistent with the prosecutor’s statement before trial
that the names had already been provided to the defense in an inventory document.

                                              8
       Following the lunch recess that same day, the government called as a witness

Officer Miguel Perez, who had investigated the January 1, 2000 shooting incident

involving the AK-47 and the MP-45. During Perez’s testimony, the government sought

to admit a document that was part of the chain of custody for the AK-47 and that

contained the names of the six January 1 arrestees. Maynard objected to the report on the

basis that the government had not disclosed the arrestees’ names despite several pretrial

requests. When the Court asked the government to explain the sudden discovery of the

names, the prosecutor stated that the chain-of-custody records in Maynard’s case file did

not contain those names and that the document that did have the names came from a file

in a separate case.7 The prosecutor indicated that he considered the January 1 arrests to

be “unrelated” to Maynard’s case and that he believed he had produced all relevant

documents associated with the charges against Maynard. (Id. at 281.) He further

explained that he had first learned of the document at issue from an unidentified

individual in the prosecutor’s office during the lunch recess.

       Maynard moved to dismiss, arguing that the government’s late production of the

document violated its disclosure obligations under Brady because the arrestees were

potentially connected to the weapon used to kill Adolph, Sr. Maynard speculated that,

had he known their names prior to trial, he could have interviewed the arrestees and might

  7
   The record does not identify whether the document appeared in a file associated with
the January 1 arrests, or with another unidentified case. For our purposes, we note only
that, whatever the purpose of the file, it was clearly related to the seizure of the AK-47
and contained documents associated with the arrestees’ being taken into custody.

                                             9
have been able to link one of them to the weapon or to the murder. The prosecutor

opposed the motion to dismiss on the basis that the names of the arrestees were not

relevant and that, even if the arrestees possessed exculpatory information, Maynard had

suffered no prejudice because defense counsel still “ha[d] ample opportunity to

[investigate them during trial because w]e’re still on the Government’s case.” (Id. at

292.) The Court expressed indignation with that suggestion and asked: “When should he

do that? ... [Y]ou want me to break now and send [defense counsel] off?” (Id.) The

prosecutor responded by saying, “[i]f [defense counsel] wants to investigate [the

arrestees], I think he should get started now.” (Id.). The Court chastised the prosecutor

for the belated production but denied Maynard’s motion and indicated that it would

reconsider the issue at the close of the government’s case.

       The government’s direct examination of Perez continued, during which the officer

described the circumstances leading to the January 1 arrests. On cross examination,

Maynard’s counsel elicited the names of the six arrestees and moved the newly produced

report into evidence. At the close of the government’s case, Maynard renewed his motion

to dismiss. The Court denied the motion on the basis that he could have investigated the

individuals after the first day of trial and that he was able to encourage jurors to infer that

one of the arrestees was linked to the firearm. During closing argument, Maynard’s

counsel urged the jury to draw such an inference, thereby discrediting the government’s

theory that Maynard was responsible for the murder of Adolph, Sr.:



                                              10
       But we know, do we not, that somebody else other than Kenrick Maynard
       possessed that gun, because on January 1st, 2000, there was a shooting ... .

                                            ***

       [The police] arrested ... Jose Hodge, Antonio Benjamin, Sherman Louis,
       Kareem George, Naja Adams and Kwasi Adams[] for possession of that
       same firearm, the gun that was used to kill Adolph Hyman.

                                            ***

       And you can use that against the government, because it shows that
       somebody else, other than Kenrick Maynard, possessed that firearm that
       shot Adolph Hyman, ... Sr.

(Id. at 546-47.)

       The issue regarding Weeks’s drug treatment also came up during trial. The

morning the trial began, the prosecutor reiterated that a court order was required to obtain

Weeks’s drug treatment records. Defense counsel then served a subpoena on the

Department of Health demanding production of those records. The Department

responded to the subpoena the next day, but, because the trial lasted only a day and a half,

the records did not arrive at the courthouse until the Court had already closed the

evidentiary record and submitted the case to the jury. The records of Weeks’s treatment,

which dated from 1996, revealed that she had an eleven-year history of addiction to crack

cocaine and that therapists had characterized her as a “pathological liar who alters the

truth to fit her needs and fantasies” in order to obtain crack cocaine or to conceal her drug

use. (Id. at 636.) Maynard requested that the Court reopen the evidence and allow him to

submit the records to the jury, but the Court refused.

                                             11
       D.     Post-Trial Proceedings

       The jury returned a verdict finding Maynard guilty of the murder of Adolph

Hyman, Sr., but acquitting him of the assault on Leslie Hyman. Thereafter, Maynard

made an oral motion for judgment of acquittal, arguing that the government’s failure to

disclose the arrestees’ identities and the information concerning Weeks’s drug treatment

violated Brady. The Court ordered briefing on the motion and indicated that it would

hear oral argument approximately one month later, at the time of Maynard’s sentencing

hearing. The record contains no indication that Maynard made any effort prior to

sentencing to locate the January 1 arrestees or to show what, if any, information they

possessed about the firearm.

       At sentencing, the Superior Court denied the motion on the ground that the

government had not suppressed the names of the January 1 arrestees because it had

disclosed them before the completion of trial, and that those identities were available to

the defense prior to trial because Maynard could have discovered their names by

contacting the law enforcement personnel who handled the arrests. Similarly, the Court

concluded that the records of Weeks’s drug treatment were not suppressed by the

government because the defense could have obtained them by serving a subpoena before

trial. Alternatively, the Court found that those records were not material to Maynard’s

case because they were over five years old and shed no light on whether Weeks was under

the influence of crack cocaine at the time of her testimony.



                                             12
       Maynard filed a timely appeal to the Appellate Division of the District Court. The

Appellate Division affirmed for the same reasons cited by the Superior Court in denying

Maynard’s motion for judgment of acquittal. Maynard then filed the present appeal.

II.    Jurisdiction and Standard of Review

       The Superior Court had jurisdiction over Maynard’s criminal case pursuant to

48 U.S.C. § 1611(b) and V.I. C ODE A NN., tit. 4, § 76(b). The Appellate Division had

jurisdiction to hear appeals from the final judgment of the Superior Court under 48 U.S.C.

§ 1613a(a). 8 Our appellate jurisdiction arises under 48 U.S.C. § 1613a(c).

       Alleged Brady violations often involve mixed questions of fact and law. In such

cases, we review a trial court’s factual findings for clear error and its legal conclusions

de novo. Gov’t of the V.I. v. Fahie, 419 F.3d 249, 252 (3d Cir. 2005). However, where,

as in this case, the facts from which the alleged violation arises are not in dispute, we

conduct our review exclusively under a plenary standard. Wilson v. Beard, 589 F.3d 651,

657 (3d Cir. 2009).



  8
    On January 29, 2007, the Supreme Court of the Virgin Islands assumed the District
Court’s appellate jurisdiction. See Hypolite v. People, 51 V.I. 97, 101 (V.I. 2009) (“The
Supreme Court officially assumed appellate jurisdiction over appeals from the Superior
Court on January 29, 2007.”). However, because Maynard appealed from the Superior
Court before the Supreme Court of the Virgin Islands had assumed jurisdiction, his appeal
remained with the Appellate Division of the District Court. See 48 U.S.C. § 1613a(d)
(“The establishment of the [Supreme Court of the Virgin Islands] shall not result in the
loss of jurisdiction of the district court over any appeal then pending in it. The rulings of
the district court on such appeals may be reviewed in the United States Court of Appeals
for the Third Circuit and in the [United States] Supreme Court notwithstanding the
establishment of the [Supreme Court of the Virgin Islands].”).

                                             13
III.   Discussion

       Brady requires the government to disclose exculpatory evidence with sufficient

notice to enable the defendant to use the evidence effectively at trial. See United States v.

Starusko, 729 F.2d 256, 262 (3d Cir. 1984) (“No denial of due process occurs if Brady

material is disclosed in time for its effective use at trial.” (quoting United States v. Higgs,

713 F.2d 39, 44 (3d Cir. 1983))). To prove a Brady violation, the defendant must show

that “(1) the government withheld evidence, either willfully or inadvertently; (2) the

evidence was favorable, either because it was exculpatory or of impeachment value; and

(3) the withheld evidence was material.” Lambert v. Blackwell, 387 F.3d 210, 252 (3d

Cir. 2004). “Evidence is ‘material’ where there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the proceeding would have been

different. A ‘reasonable probability’ is a probability sufficient to undermine confidence

in the outcome.” Simmons v. Beard, 590 F.3d 223, 234 (3d Cir. 2009) (quoting United

States v. Bagley, 473 U.S. 667, 682 (1985)); see also United States v. Pelullo (Pelullo I),

105 F.3d 117, 123 (3d Cir. 1997) (requiring the defendant to show that the alleged Brady

violation “resulted in a verdict unworthy of confidence”). However, “the government is

not obliged under Brady to furnish a defendant with information which he already has or,

with any reasonable diligence, he can obtain himself.” United States v. Pelullo (Pelullo

II), 399 F.3d 197, 202 (3d Cir. 2005) (quoting Starusko, 729 F.2d at 262). A defendant

who proves a Brady violation is entitled to a new trial. See Kyles v. Whitley, 514 U.S.



                                              14
419, 435 (1995) (stating that, when analyzing a Brady claim, “once a reviewing court ...

has found constitutional error, there is no need for further harmless-error review”).

       Maynard contends that the government violated Brady by failing to disclose the

identity of the January 1 arrestees and the records of Weeks’s drug treatment. We discuss

each of those pieces of evidence in turn.

       A.     Identity of the January 1 Arrestees

       Maynard’s first Brady challenge is somewhat unusual in that he contends that the

government suppressed the names of the January 1 arrestees even though he received

those names during trial, entered them into evidence, and urged the jury to draw an

inference that one of them was connected to the murder weapon. Thus, Maynard cannot –

and does not – argue that the arrestees’ names were exculpatory solely because they

showed that someone other than himself could have possessed the AK-47. Instead,

Maynard argues that the government’s failure to disclose the arrestees’ identities violated

Brady because, had he received their names in advance of trial, he could have

investigated the individuals and potentially shown that one of them actually possessed the

weapon, and perhaps he could even have linked one of them to the murder of Adolph, Sr.

However, defense counsel never spoke with any of the arrestees after learning their

names, even though one month had elapsed between the end of Maynard’s trial and the

Court’s formal ruling on his Brady challenge, nor did he request an extension of time to

conduct such an investigation. We are therefore left to guess whether he could have



                                            15
successfully contacted them and what, if any, information such an investigation might

have revealed. Accordingly, and as more fully detailed below, Maynard’s Brady claim

involving the identities of the January 1 arrestees fails.

              1.      Suppression by the Government

       The first element of a Brady claim requires the defendant to show that the

government suppressed evidence. Lambert, 387 F.3d at 252. The government’s Brady

obligations attach to all exculpatory evidence in the government’s actual or constructive

possession. A prosecutor has constructive possession of evidence if, “although [he] has

no actual knowledge [of the evidence], [he] should nevertheless have known that the

material at issue was in existence.” Pelullo II, 399 F.3d at 218 n.23 (quoting United

States v. Joseph, 996 F.2d 36, 39 (3d Cir. 1993)). Thus, under Brady, the government

must “take the minimal steps necessary to acquire ... information” of which the

prosecution should be aware, even if it lacks knowledge of the material at the time the

defendant requests disclosure. United States v. Risha, 445 F.3d 298, 307 (3d Cir. 2006)

(quoting Joseph, 996 F.2d at 40). The prosecutor’s good faith or bad faith in failing to

disclose the information is irrelevant. Arizona v. Youngblood, 488 U.S. 52, 57 (1988).

       Maynard contends that the prosecutor’s failure to produce the January 1 arrestees’

identities before trial constitutes government suppression of exculpatory evidence, and,

contrary to the holdings of the District Court and the Superior Court, the record in this

case shows that he is correct. The January 1 arrests were handled by the same police



                                              16
department that investigated the murder of Adolph, Sr., and both matters were referred for

prosecution to the Office of the Attorney General of the Virgin Islands. The prosecutor in

Maynard’s case knew that police had apprehended the January 1 arrestees near where they

discovered the AK-47, but the prosecutor failed to perform even the most rudimentary

search for their names. Despite repeated requests by defense counsel, the prosecutor

never reviewed the files associated with the January 1 arrests, nor did he inquire whether

anyone in his office knew the names of the arrestees. Indeed, he was so little concerned

with meeting a clearly relevant disclosure request from the defense that he changed

stories without, it seems, any care at all, saying first that the defense had been given the

names, then that the prosecution itself was without the names, and finally that the

prosecution had the names but that they were never thought to be relevant to Maynard’s

case. Under these circumstances, we have little difficulty concluding that the

prosecutor’s neglect effectively suppressed the identities of the January 1 arrestees. See

Wilson, 589 F.3d at 659 (stating that Brady requires disclosure of exculpatory

“information in the possession of the prosecutor’s office, the police, and others acting on

behalf of the prosecution”).

       The government advances two unpersuasive arguments against a holding that the

names were suppressed. First, it argues that the arrestees’ identities were located in a

separate case file of which the prosecutor had no knowledge. That argument has no merit

because the arrest files were in the possession of the Attorney General’s office, and



                                              17
documentation in Maynard’s file referred to the six arrestees by arrest number. The

prosecutor therefore knew that the names were in the government’s possession and knew

further where to locate the names, even if he had not yet gone to the trouble to do so. See

United States v. Perdomo, 929 F.2d 967, 970-71 (3d Cir. 1991) (holding that a prosecutor

had constructive knowledge of information held by another arm of the government

accessible to the prosecutor).

       Second, the government argues that there was no suppression because the

prosecutor disclosed the arrestees’ names during trial, thereby giving Maynard an

opportunity to present their identities to the jury and argue that one of them was tied to

the weapon. That argument wrongly presumes that the government is free to dictate the

purpose to which the withheld information could be put. Maynard claims that he wanted

the names not merely to argue an inference but to be able to investigate a more concrete

connection between the January 1 arrestees and the murder of Adolph, Sr. The January 1

arrests meant that six people other than Maynard were possibly linked to the murder

weapon, and Maynard hoped that, through his own investigation, he might be able to tie

one of them to the weapon or to the murder. That is a legitimate purpose which the

prosecutor was not free to frustrate by his cavalier refusal to respond to the defense

request for the names of the January 1 arrestees. Cf. United States v. Higgs, 713 F.2d 39,

43 (3d Cir. 1983) (“Determining that the requested information falls under Brady,

however, does not resolve the more difficult question of when that information must be



                                             18
disclosed to appellees. Because Brady rests on the requirements of due process, our focus

must be on when disclosure is necessary to insure appellees a fair trial.”). The

government must disclose Brady material sufficiently in advance of trial to enable the

defendant to use the evidence in a meaningful fashion, and, in this case, the late hour of

the government’s disclosure prevented Maynard from using the evidence for any

investigatory purpose. Cf. United States v. Lee, 573 F.3d 155, 164-65 (3d Cir. 2009)

(concluding that the government’s failure to disclose exculpatory evidence prior to trial

under Rule 16 of the Federal Rules of Criminal Procedure prejudiced the defendant

because he “was deprived of any opportunity to prepare meaningfully for trial”).

Accordingly, we conclude that the prosecutor suppressed evidence and that Maynard has

successfully established the first element of a Brady violation.

              2.     Favorableness and Materiality

       The second and third elements of a Brady violation require the defendant to prove

that the suppressed evidence was favorable to his defense and material to his case.

Lambert, 387 F.3d at 252. To be favorable to the defendant, the evidence must either

exculpate the accused or impeach a witness for the prosecution. Wilson, 589 F.3d at 659.

To determine materiality, we evaluate the excluded evidence to assess whether there is a

reasonable probability that the outcome would have differed had the jury known of the

evidence. Bagley, 473 U.S. at 683. “[T]he Constitution is not violated every time the

government fails or chooses not to disclose evidence that might prove helpful to the



                                             19
defense.” Kyles, 514 U.S. at 436-37. Rather, we must determine whether the non-

disclosure is so significant that it “undermines confidence in the outcome of the trial.” Id.

at 434 (quoting Bagley, 473 U.S. at 678).

                     a.      Guiding Principles of Law

       We have identified three overriding legal principles that guide our Brady analysis.

First, Brady is not a discovery rule, and it is neither designed nor intended to enable the

defendant to present the most effective case possible. See Wilson, 589 F.3d at 659 (“The

purpose of Brady is not to require the prosecution to disclose all possibly favorable

evidence to the defense ... .”). Instead, Brady establishes a constitutional floor for

prosecutorial conduct, requiring the government to provide the defendant, at a minimum,

with exculpatory information for the purpose of ensuring that the defendant receives a fair

trial. Starusko, 729 F.2d at 262. It therefore focuses on safeguarding the defendant’s due

process rights and regulates prosecutorial conduct only to the extent necessary to protect

that right. Id. (characterizing Brady as a “minimum prosecutorial obligation.” (citation

omitted)). Thus, non-disclosure alone is not sufficient to form the basis of a successful

Brady challenge. See United States v. Brown, 595 F.3d 498, 509 (3d Cir. 2010) (stating

that courts evaluate the merits of an alleged Brady violation “irrespective of the good

faith or bad faith of the prosecution” (quoting Brady, 373 U.S. at 87)). Even suppression

resulting from a prosecutor’s bad faith or ineptitude does not provide a basis for relief

unless the defendant makes an additional showing that the undisclosed evidence is



                                             20
material, i.e., that there is a reasonable probability it will change the outcome of his trial

on remand. See Cone v. Bell, 129 S. Ct. 1769, 1783 (2009) (“[E]vidence is ‘material’ ...

when there is a reasonable possibility that, had the evidence been disclosed, the result of

the proceeding would have been different.”); United States v. Agurs, 427 U.S. 97, 110

(1976) (“Nor do we believe the constitutional obligation is measured by the moral

culpability, or the willfulness, of the prosecutor.”).

       Second, a successful Brady challenge requires the defendant to show that the

suppressed evidence is either itself admissible or would have directly led to evidence that

would be admissible at a new trial or sentencing. See Ellsworth v. Warden, 333 F.3d 1, 5

(1st Cir. 2003) (“[W]e think it plain that evidence itself inadmissible could be so

promising a lead to strong exculpatory evidence that there could be no justification for

withholding it.”); Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999) (“Inadmissible

evidence may be material if the evidence would have led to admissible evidence.”).

Successful Brady challenges often seem to rest upon discrete pieces of admissible

evidence that the government effectively withheld. See, Pelullo I, 105 F.3d at 122-24

(granting a new trial in a corporate fraud case because a law enforcement officer’s notes

corroborated the defendant’s theory that allegedly fraudulent money transfers had been

performed for the legitimate purpose of repaying corporate debt); Perdomo, 929 F.2d at

970-74 (concluding that government had suppressed a witness’s criminal history and

remanding for further fact-finding regarding the materiality of that information).



                                              21
Particularly pertinent here, the Supreme Court has suggested that a defendant may

predicate a Brady claim upon prosecutorial suppression that causes the defendant to

“abandon lines of independent investigation, defenses, or trial strategies that [he]

otherwise would have pursued,” Bagley, 473 U.S. at 683, provided that the defendant

shows that he would have discovered admissible evidence which calls the outcome of the

trial into question. Id. at 684.

       Third, a defendant’s ability to establish a Brady violation by arguing that

suppressed evidence would have led to additional exculpatory materials requires more

than speculation. See United States v. Aleman, 548 F.3d 1158, 1164 (8th Cir. 2008)

(rejecting a Brady claim based on the government’s failure to disclose a witness’s

statement that alluded to other individuals who the defendant could have investigated

because the defendant offered nothing more than speculation about what those witnesses

would have said); United States v. Ramos, 27 F.3d 65, 71 (3d Cir. 1994) (“We think it

unwise to infer the existence of Brady material based upon speculation alone.”). The

defendant must instead produce some evidence to show that his investigation would have

borne fruit. See Agurs, 427 U.S. at 109-10 (“The mere possibility that an item of

undisclosed information might have helped the defense, or might have affected the

outcome of the trial, does not establish ‘materiality’ in the constitutional sense.”); Ramos,

27 F.3d at 71 (requiring a defendant to raise a “colorable claim” showing the existence of




                                             22
material and exculpatory evidence before granting relief under Brady (quoting United

States v. Griffin, 659 F.2d 932, 939 (9th Cir. 1981))).

       The Supreme Court’s decision in Wood v. Bartholomew, 516 U.S. 1 (1995),

illustrates the type of speculation that cannot support a right to relief under Brady. In

Bartholomew, a habeas case brought under 28 U.S.C. § 2254, the defendant was charged

with killing a victim during the course of a robbery. The government administered a

polygraph test to a critical prosecution witness in which the examiner asked whether the

witness had assisted the defendant in preparing for the robbery. Bartholomew, 516 U.S.

at 4. The witness responded that he had not done so, and “the examiner concluded that

the responses ... indicated deception” by the witness. Id. The government withheld the

results of the polygraph test. The defendant later sought a writ of habeas corpus on the

ground that, had he known of the polygraph results, he likely would have sought to

depose the witness prior to trial. Id. at 4-5. The district court denied relief, but the court

of appeals reversed because it believed that the defendant “might well have succeeded in

obtaining an admission that [the witness] was lying about his participation in the crime,” 9

which could have been used to impeach the witness or exculpate the defendant. Id. at 5.

The Supreme Court, however, found that no Brady violation had occurred. The Court

held that, “[o]ther than expressing a belief that in a deposition [the witness] might have

confessed to ... involvement” in the robbery, the theory of the court of appeals about what

  9
   The polygraph test results were not themselves admissible because state evidentiary
laws prohibited their introduction at trial. Bartholomew, 516 U.S. at 5.

                                              23
the witness might have said was “based on mere speculation.” Id. at 6. The defendant

had failed to produce any evidence to support the possibility that the witness would have

provided exculpatory testimony, id., and it appeared that the challenge was based entirely

on information that the defendant hoped to find, not on a showing that such evidence was

available and accessible to him.

       Bartholomew thus demonstrates that a defendant may not rest a Brady claim on the

mere hope that he will discover exculpatory information. Id. (stating that the court of

appeals’s “judgment [wa]s based on mere speculation, in violation of the standards we

have established” under Brady). Instead, he must make a concrete showing that he has a

fair probability of discovering such evidence. See Aleman, 548 F.3d at 1164 (concluding

that conjecture about what witnesses might have said cannot support a Brady claim).

       We too have rejected conjecture as a basis for a Brady challenge. We have refused

relief to a defendant who speculated that preliminary investigation notes destroyed by law

enforcement officers might have contained unspecified Brady materials. Ramos, 27 F.3d

at 71. We have also found Brady claims to be insufficient when based on the

government’s failure to disclose evidence that, due to the location and condition of

discovery, could only be linked to the case through conjecture, Lambert, 387 F.3d at 264

(concluding that no Brady violation occurred when police were searching for a pair of

sneakers discarded in a river but found a partly decayed sneaker on the riverbank because

the sneaker appeared to be too old to be connected to the case, and therefore any link to



                                            24
the crime was purely speculative), or when based on unsupported guesswork regarding

information that the government might have had in its files, United States v. Am. Radiator

& Standard Sanitary Corp., 433 F.2d 174, 202 (3d Cir. 1970).

       Together, these three guiding principles – (1) that the government’s failure to

disclose does not by itself support a Brady claim, (2) that the defendant must point to

materials that are admissible or that would have led to admissible evidence, and (3) that

the defendant may not rest his claim on pure conjecture – reveal that, at its core, Brady

requires a showing of prejudice. See Banks v. Dretke, 540 U.S. 668, 691 (2004)

(describing Brady’s materiality element as equivalent to a showing of prejudice). The

defendant must identify evidence raising a reasonable probability that, were we to remand

for a new trial or sentencing, the new proceeding would have a different outcome than the

one that occurred in the first instance.

                      b.     Maynard’s Speculation about Exculpatory, Material Evidence

       Applying those principles to this appeal, we conclude that Maynard has not moved

his Brady challenge beyond the realm of conjecture. Maynard rests heavily upon the

prosecutor’s misconduct to substantiate his claim to relief, and he notes that the

prosecutor’s failure to discover and disclose the arrestees’ identities reflects a refusal to

take seriously the obligations imposed by Brady. Maynard repeatedly requested the

arrestees’ identities, and the prosecutor represented that the government lacked such




                                              25
information, even though there had been no effort to review the files associated with the

January 1 arrests.

         To be sure, the manner in which the prosecutor approached his responsibilities in

Maynard’s case deserves, at a minimum, the most unequivocal rebuke, and both the

Superior Court and the Appellate Division appropriately took him to task for his lack of

professionalism. Since he appears to be a repeat offender,10 the Superior Court in

particular expressed an understandable inclination to punish him, but that does not mean



  10
       The prosecutor’s failure to disclose the information prompted the Superior Court to
say:

         [Y]ou can’t walk into court at the last minute and produce information that
         you should have produced, that the defendant asked specifically for on four
         different occasions, in front of me, at least, and you get up and say you
         didn’t have it.
                 Your problem is that you cavalierly deal with these cases as if it
         doesn’t matter. You don’t have it or produce it, and that’s it. You don’t
         seem like you think that you have to investigate.
                 Any other officer in your department, whatever they have, you have.
         And I’m getting tired of you, in particular, of these last minute, producing
         things.
                 And this is a situation where the defendant has asked you over and
         over and over, and you get up and say, “Judge, we gave all we have. That’s
         it.”
                 And then in the middle of the trial you’re going to produce a
         document that has the names of people that this defendant could have
         investigated, who might have some connection to the very gun that was
         used ... , and the Court is just supposed to close its eyes to it and proceed.

(App. at 293-94.) Like the Superior Court, the Appellate Division indicated that it did not
condone the prosecutor’s “lackadaisical and cavalier approach to discovery,” (id. at 40),
and that it had “serious doubts that the prosecutor ... complied with” his discovery
obligations. (Id. at 41.)

                                              26
that a Brady claim is well-founded. Maynard is free to file an ethical grievance against

the prosecutor with the Supreme Court of the Virgin Islands or with the Virgin Islands

Bar Association. See V.I. S. C T. R. 203(f) (establishing procedures for disciplinary

complaints against attorneys); V.I. S. C T. R. 205 (creating the Virgin Islands Bar

Association and giving it authority to regulate the practice of law). He may also petition

for habeas relief, though we of course make no comment on whether such a petition

would have merit. In addition, the circumstances of this case should, we think, prompt

the Attorney General of the Virgin Islands to take remedial action to ensure that this

prosecutor in particular understands and acts upon the scope of his disclosure obligations,

including the obligations that flow from Brady.

       Regardless of what ought to be done in disciplining the prosecutor, however, it still

remains that Brady is not violated every time the government withholds information from

a defendant. United States v. Veksler, 62 F.3d 544, 550 (3d Cir. 1995) (“[N]ot every

failure to disclose evidence favorable to the defense requires a reversal of a conviction.”).

Brady requires vacatur of the conviction only if the withheld evidence undermines

confidence in the integrity of the verdict. See Dist. Atty’s Office for the Third Judicial

Dist. v. Osborne, 129 S. Ct. 2308, 2335 (2009) (“[T]he [government] violates due process

when it suppresses ‘evidence favorable to an accused’ that is ‘material either to guilt or to

punishment, irrespective of the good faith or bad faith of the prosecution.’” (quoting

Brady, 373 U.S. at 87)). We must therefore consider whether Maynard suffered prejudice



                                             27
as a result of the prosecutor’s neglect. In other words, we must determine whether

Maynard has identified exculpatory evidence sufficient to raise a reasonable probability

that his trial or sentence would have been different had the evidence been presented in

court. Bagley, 473 U.S. at 682. Our review shows that he has not.

       Insofar as the names of the January 1 arrestees were themselves exculpatory,

Maynard presented them to the jury and urged jurors to conclude that one of the arrestees

was linked to the weapon or to the murder. During closing arguments, Maynard’s

counsel suggested that the names “show[ed] that somebody else, other than Kenrick

Maynard, possessed the firearm that shot Adolph Hyman, ... Sr.” (App. at 546-47.) Thus,

Maynard had and took the opportunity to link other individuals to the murder weapon

using the identities of the January 1 arrestees.

       As to whether the government’s suppression of the arrestees’ names deprived

Maynard of evidence that he could have collected before trial to link one of the arrestees

to the AK-47 or to the murder, the decision is less clear, but ultimately we conclude that

Maynard has failed to show that the names would have directly led to the discovery of

such evidence. He has not shown that he could have located the January 1 arrestees,

much less that they possessed information that would have altered the outcome of his

trial. The arrests occurred over six months after Adolph, Sr.’s death, and no evidence of

record suggests that any of the arrestees ever possessed the murder weapon at any time.




                                              28
Indeed, the arrestees were released from custody because the government could not link

them to the gun in any way.

      Like the defendant in Wood, Maynard has predicated his Brady arguments not on

an evidentiary showing that he could have obtained exculpatory information from the

arrestees but on a mere hope that he would have done so. His challenge rests entirely

upon the assumption that he could have located the arrestees, that one of them knew about

and would have been willing to speak with him about the weapons, and that the

conversation would have given him information that shed new light on who used the AK-

47 six months earlier, when Adolph, Sr. was killed. We should not make such speculative

leaps without some evidentiary footing, and Maynard has given us nothing of the kind.

      Maynard had the opportunity to seek out the January 1 arrestees pending the

Superior Court’s disposition of his Brady motion following trial. However, even though

he had their names and time to look for them, he never undertook the investigation that he

had so zealously claimed was essential to his defense. If he thought he lacked the amount

of time necessary for an investigation, he could have requested a continuance, but he did

not do so. In short, he had the chance to move his Brady challenge beyond the realm of

conjecture but neglected to do so. See Pelullo II, 399 F.3d at 209 (imposing burden of

establishing a Brady challenge upon the defendant).

      One final point convinces us that denying relief on the Brady claim pertaining to

the January 1 arrestees is appropriate, namely, the weight of evidence against Maynard.



                                            29
See Bartholomew, 516 U.S. at 8 (considering the strength of the government’s case when

evaluating materiality under Brady). Both Adolph, Jr. and Weeks testified that they were

acquainted with Maynard prior to the shooting of Adolph, Sr. Both testified that they saw

him firing the weapon that killed Adolph, Sr., and they described in detail their

opportunity to witness the murder. They both positively identified Maynard at trial.

Neither of them expressed uncertainty about his culpability at any point during pretrial

investigation or questioning at trial. Jurors also heard testimony that the six arrestees

were apprehended at the time the AK-47 was discovered, and Maynard encouraged them

to draw an inference that one of these six individuals was linked to the weapon or was

responsible for the murder. Jurors nevertheless found Adolph, Jr. and Weeks’s account

of the murder to be credible. We will not second-guess that finding of credibility. United

States v. Ozcelik, 527 F.3d 88, 94 (3d Cir. 2008) (“We must ‘defer to the jury’s

assessment of witness credibility’ and recognize that ‘the government’s proof need not

exclude every possible hypothesis of innocence.’” (quoting United States v. Bala, 236

F.3d 87, 93-94 (2d Cir. 2000))).

       Furthermore, Maynard fled the Virgin Islands immediately after the shooting of

Adolph, Sr., supposedly to escape the individuals who had attacked him on July 4, 1999,

but whom he could not identify. He never indicated why the attack threatened him so

severely that he moved 1,500 miles away, nor has he explained why he changed his

identity. He asked jurors to believe that he upended his entire life based on a single



                                             30
incident perpetrated by individuals he did not know and for reasons he did not

understand. The jury rejected that explanation and, on this record, we are in no position

to disagree. See United States v. Green, 25 F.3d 206, 210 (3d Cir. 1994) (“[E]vidence of

a defendant’s flight after a crime has been committed is admissible to prove his

consciousness of guilt.”).

       In sum, Maynard’s conjecture about what an investigation of the January 1

arrestees might have shown is insufficient to demonstrate that an investigation would

have led to evidence that was exculpatory and material to his defense. Accordingly, the

Appellate Division was correct to affirm the Superior Court’s denial of Maynard’s Brady

claim with respect to the arrestees’ identities.11

       B.     Medical Records of Weeks’s Drug Use

       Maynard alleges that the government violated Brady by failing to obtain and

produce evidence of Weeks’s drug use in the possession of the Department of Health.

Assuming that Weeks’s treatment records qualified as Brady materials, they nevertheless

  11
    One might argue that the denial of Maynard’s Brady challenge will create an
incentive for prosecutors to withhold the names of key witnesses or other individuals who
possess evidence pertinent to a case. That concern is, we hope, unfounded. The Supreme
Court has noted that “because the significance of an item of evidence can seldom be
predicted accurately until the entire record is complete, the prudent prosecutor will
resolve doubtful questions in favor of disclosure.” Agurs, 427 U.S. at 108. A sensible
prosecutor has no incentive to withhold the names of potential witnesses because, in
doing so, the prosecutor creates a risk that the defendant will later establish that those
witnesses possessed material and exculpatory information. Although that risk did not
materialize in this case, rejecting Maynard’s Brady challenge does not mean that another
defendant in a similar position would be unable to advance a meritorious Brady
challenge.

                                              31
fail to support a claim to relief because Maynard could have discovered them through the

exercise of reasonable diligence. Pelullo II, 399 F.3d at 202 (“[T]he government is not

obliged under Brady to furnish a defendant with information which he already has or,

with any reasonable diligence, he can obtain himself.” (quoting Starusko, 729 F.2d at

262)). After the prosecutor allegedly tried and failed in his attempt to obtain those

records from the Department of Health, defense counsel subpoenaed them on the first day

of trial. The Department promptly brought the records to the courthouse the following

day, but it was too late for defense counsel to put them in evidence.

       These circumstances, though unfortunate, demonstrate that Maynard could have

obtained the records prior to trial. Defense counsel was aware two weeks before trial that

a court order would be necessary to acquire the records, but he did not subpoena them

until after trial commenced. See United States v. McKenzie, 768 F.2d 602, 608 (5th Cir.

1985) (concluding no Brady violation because the defendant could have subpoenaed a

videotape allegedly withheld by the government from the witness who had custody of it);

see also Perdomo, 929 F.2d at 973 (“Brady does not oblige the government to provide

defendants with evidence that they could obtain from other sources ... .”). Because

Maynard’s counsel could have obtained the records prior to trial through the exercise of

reasonable diligence, those records cannot serve as the basis for relief under Brady.

Accordingly, Maynard is not entitled to a new trial based on the government’s failure to

obtain and produce records of Weeks’s drug treatment.



                                             32
IV.    Conclusion

       Though we do not entirely agree with the reasoning provided by the Appellate

Division, the Court was correct in its conclusion that neither the suppression of the

January 1 arrestees’ identities nor the government’s failure to obtain and produce

Weeks’s drug treatment records provides a basis for relief under Brady. Thus, the Court

properly affirmed the Superior Court’s denial of Maynard’s post-trial motion. We will

therefore affirm the judgment of the Appellate Division of the District Court.




                                            33
