                    RECOMMENDED FOR FULL-TEXT PUBLICATION
                        Pursuant to Sixth Circuit I.O.P. 32.1(b)
                               File Name: 13a0167p.06

             UNITED STATES COURT OF APPEALS
                            FOR THE SIXTH CIRCUIT
                              _________________


                                                X
                          Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                 -
                                                 -
                                                 -
                                                     No. 11-6175
          v.
                                                 ,
                                                  >
                                                 -
                       Defendant-Appellant. -
 ABEL MARTINEZ TAVERA,
                                               N
                  Appeal from the United States District Court
              for the Eastern District of Tennessee at Greeneville.
               No. 2:10-cr-61-4—J. Ronnie Greer, District Judge.
                               Argued: May 1, 2013
                        Decided and Filed: June 20, 2013
            Before: MERRITT, CLAY, and DONALD, Circuit Judges.

                               _________________

                                   COUNSEL
ARGUED: A. Philip Lomonaco, THE LAW OFFICES OF A. PHILIP LOMONACO,
Knoxville, Tennessee, for Appellant. Donald Wayne Taylor, UNITED STATES
ATTORNEY’S OFFICE, Greeneville, Tennessee, for Appellee. ON BRIEF: A. Philip
Lomonaco, THE LAW OFFICES OF A. PHILIP LOMONACO, Knoxville, Tennessee,
for Appellant. Donald Wayne Taylor, UNITED STATES ATTORNEY’S OFFICE,
Greeneville, Tennessee, for Appellee.
     MERRITT, J., delivered the opinion of the court in which, DONALD, J., joined.
CLAY, J. (pp. 13–19), delivered a separate dissenting opinion.
                               _________________

                                    OPINION
                               _________________

       MERRITT, Circuit Judge. Defendant Abel Martinez Tavera was convicted by
a jury and sentenced to 186 months of imprisonment for participating in a
methamphetamine drug conspiracy. With Tavera as his passenger, co-defendant Placido


                                         1
No. 11-6175           United States v. Tavera                                                    Page 2


Mendoza drove a truck for several hours from North Carolina to Tennessee. The truck
contained construction equipment and a large quantity of methamphetamine hidden
under nails. The police arrested both men after discovering the drugs. At his trial,
Tavera, a roofer, testified that he did not know about the drugs and that he thought he
was going to Tennessee to view a construction project. After his conviction, Tavera
learned that a few days before his trial Mendoza had participated in plea negotiations in
which he told Assistant U.S. Attorney Donald Taylor, the government’s trial lawyer in
Tavera’s case, that Tavera had no knowledge of the drug conspiracy. Mendoza pled
guilty after the negotiations.

         Mendoza’s statements to Taylor were plainly exculpatory. They not only
corroborated Tavera’s trial testimony—they directly contradicted the story of the
government’s main witness, co-defendant Guadalupe Granado, who testified that Tavera
had detailed knowledge of the drugs in the truck and participated in the conspiracy.
However, the jury never learned of Mendoza’s statements because Taylor, the
prosecutor, failed to disclose them to Tavera. Tavera was in jail. He did not
communicate with or presumably did not have access to Mendoza. His lawyer did not
interview Mendoza.

         Fifty years ago, the Supreme Court held in Brady v. Maryland, 373 U.S. 83
(1963), that the government must provide defendants with material, exculpatory
evidence in its possession. Failure to do so results in a trial that is fundamentally unfair.
The Supreme Court has never wavered from this principle. Yet nondisclosure of Brady
material is still a perennial problem, as multiple scholarly accounts attest.1 This case
shows once again how prosecutors substitute their own judgment of the defendant’s guilt
for that of the jury. So long as favorable evidence could very well affect the jury’s



         1
           See, e.g., Stephanos Bibas, Prosecutorial Regulation Versus Prosecutorial Accountability,
157 U. Pa. L. Rev. 959, 975–77 (2009) (concluding that prosecutors rarely receive professional discipline
despite a high number of Brady violations); Bennett L. Gershman, Litigating Brady v. Maryland: Games
Prosecutors Play, 57 Case W. Res. L. Rev. 531 (2007) (documenting strategies prosecutors use to avoid
disclosing favorable evidence); James S. Liebman et al., Capital Attrition: Error Rates in Capital Cases,
1973–1995, 78 Tex. L. Rev. 1839, 1850 (2000) (reporting that Brady violations caused sixteen percent
of capital-case reversals in state postconviction proceedings during period studied).
No. 11-6175        United States v. Tavera                                        Page 3


decision, prosecutors must disclose it. And when they fail to do so, courts have a duty
to order a retrial, allowing a jury to consider the previously concealed evidence.

       This particular case is not close.     Prosecutor Taylor’s failure to disclose
Mendoza’s statements resulted in a due process violation. We therefore vacate Tavera’s
conviction and remand for a new trial. In addition, we recommend that the U.S.
Attorney’s office for the Eastern District of Tennessee conduct an investigation of why
this prosecutorial error occurred and make sure that such Brady violations do not
continue.

                                    I. Background

       In May 2010, Tavera was arrested with four co-defendants during an undercover
sting in the area of Morristown, Tennessee.         The sting was the product of an
investigation in which Agent Michael Templeton of the Drug Enforcement
Administration posed as a dealer interested in acquiring a large quantity of marijuana or
methamphetamine.      Agent Templeton’s main contact was Guadalupe Granado.
Templeton bought small quantities of meth from Granado on several occasions and
arranged to purchase ten pounds of the drug on May 14, 2010. Originally the plan was
for Templeton to conduct the transaction in a McDonald’s parking lot with unknown
associates of Granado. This arrangement fell through at the last minute because Granado
insisted that the meeting be changed to a more remote location. However, surveillance
enabled law enforcement to track and arrest the participants as they were driving away
from the planned location of the buy.

       Police first arrested Elias Perez, Placido Mendoza, and Tavera. Perez was
driving a red Chevy Cavalier. A search of the car uncovered a firearm and ammunition
inside a cooler. Mendoza was driving a red Dodge Ram pickup truck in which Tavera
was the passenger. The truck contained a variety of construction equipment, including
a ladder and a bucket of nails. Underneath the nails police discovered a large quantity
of methamphetamine. As it later emerged, Mendoza and Tavera had driven with the
drugs from Winston-Salem, North Carolina, that same day. Perez, who had been staying
No. 11-6175            United States v. Tavera                                                    Page 4


in Tennessee, had been assigned to drive the Cavalier as a lookout. Later in the day
police arrested Granado and Marco Rivera, who turned out to be the source of the drugs.

         The government indicted all five men. It charged Tavera with one count of
conspiracy to distribute over 500 grams of methamphetamine and one count of
possession with intent to distribute over 500 grams of methamphetamine.2                               All
participants except Tavera pled guilty.

         Tavera’s trial was held on May 3–6, 2011. Granado’s testimony was the primary
proof against Tavera. Granado testified that he had previously been to Tavera’s home
in North Carolina and that Tavera was present while Rivera cooked meth. He testified
to overhearing a phone conversation between Rivera and Mendoza in which Rivera
suggested that Mendoza bring Tavera for security and to count money from the
transaction. He testified that Tavera was to be paid for helping with the drugs and that
there was no construction job. And he testified to post-arrest conversations he had with
Tavera in jail. In these conversations, Tavera stated that he wished to remove meth-
related materials from his home, asked Granado to tell law enforcement that he had
never seen Tavera before, and revealed that he had used the ladder to make it look like
he and Mendoza were traveling for construction work.

         In addition to Granado’s testimony, the government introduced physical evidence
recovered from the truck and evidence of phone calls exchanged between the
participants in the hours before the arrest. There were multiple calls from Rivera to
Mendoza, but not Tavera, during the time that Mendoza and Tavera were driving from
North Carolina. Additionally, Tavera had talked on the phone with both Rivera and
Mendoza in the weeks before the sting.

         Tavera’s primary proof was his own testimony. He testified, contrary to
Granado’s story, that he and Granado had never met before the sting and that he never
attempted to get Granado to lie. He established his long career as a roofer and stated that


         2
          The government also charged Tavera with aiding and abetting possession of the firearm found
in the Cavalier driven by Perez. The jury found Tavera guilty of the charge, but the district court granted
Tavera’s subsequent motion for judgment of acquittal. This charge is not at issue here.
No. 11-6175        United States v. Tavera                                          Page 5


he knew Mendoza and Rivera through legitimate construction work. He testified that
he believed the purpose of the trip was to provide an estimate on a roofing job and that
he brought the ladder for that reason. When he and Mendoza arrived at the site of the
drug transaction, Tavera said, he began to get “desperate about where the job was going
to be,” and Mendoza responded that they were waiting for someone to take them there.
On cross-examination, Tavera said he did not know the exact location of the job
beforehand. He also admitted that Mendoza talked with Rivera on the phone during the
trip, but he contended that he did not hear the substance of the conversations. In addition
to this evidence, the parties stipulated that ion swabs showed methamphetamine on
Mendoza’s hands and cell phone, on the cooler where the firearm was found, and in
Granado’s car, but not on Tavera’s hands or cell phone.

       The jury found Tavera guilty on all counts, and on September 12, 2011, the court
sentenced him to 15 years and 6 months of imprisonment. The court held a sentencing
hearing for Mendoza on the same day. At his hearing, Mendoza argued that he was
“safety-valve” eligible for a reduced sentence because he had provided truthful
information to the government about the crime. In the week before Tavera’s trial,
Mendoza had participated in two debriefings with Mr. Taylor, the Assistant U.S.
Attorney, and agents involved in the sting. At the first debriefing, Mendoza told Taylor
and the agents that Tavera was not involved in the conspiracy and did not know there
were drugs in the truck. Later the same day, there was a second debriefing at which
Mendoza said Tavera “did know about the drugs that were in the vehicle, but did not
know until he got in the vehicle with [Mendoza] that day.” R. 213, Mendoza Sentencing
Tr. at 15. Throughout these debriefings, Mendoza denied that the defendant came along
to count money or provide security. He consistently maintained that the roofing job was
one of the purposes of the trip to Tennessee.

       The government never disclosed Mendoza’s statements to Tavera. After the
debriefings, Mendoza signed a plea agreement. Mendoza’s agreement reversed his
position that Tavera was innocent and stated, “Tavera knew that they were transporting
methamphetamine from North Carolina to be delivered to another person in Tennessee
No. 11-6175         United States v. Tavera                                        Page 6


and agreed to accompany [Mendoza]. Since they were transporting methamphetamine,
Tavera told [Mendoza] that they needed to be careful.” R. 143, Am. Plea Agreement at
6. Obviously, Mendoza was lying either in the beginning or after his plea negotiations.

         Tavera filed a timely notice of appeal from the district court’s final judgment,
thus vesting this court with jurisdiction. One year later, Tavera filed his brief in this
court as well as a motion for a new trial in the district court. Both are based on the
argument that Brady required disclosure of Mendoza’s statements at the debriefings.
The district court has not yet ruled on the new-trial motion. Ordinarily we would
provide the district court an opportunity to consider the motion before we do. However,
because Brady claims ultimately present a question of law reviewed de novo, see United
States v. Tarwater, 308 F.3d 494, 515 (6th Cir. 2002), and because Tavera and the
government agree that the factual record is fully developed, we proceed to decide the
issue.

                                        II. Brady

         Fundamental guarantees of due process require the government to provide
defendants with evidence it possesses that is exculpatory and material to the defense.
This has been a cardinal rule of criminal procedure since Brady v. Maryland, 373 U.S.
83 (1963). Under contemporary doctrine, there is a Brady violation, and a new trial is
warranted, if three conditions are met: “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.” Strickler v. Greene, 527 U.S. 263, 281–82 (1999) (emphasis added).
Brady itself was a case like this one in which the prosecution failed to disclose a
statement by a co-defendant that Brady did not shoot the victim. Apparently, neither
Brady nor his counsel had attempted to interview the witness. Here, we must consider
No. 11-6175            United States v. Tavera                                                    Page 7


whether the government suppressed Mendoza’s statements and, if so, whether those
statements were material to Tavera’s defense so that the suppression prejudiced him.3

                                           A. Suppression

         In defense of its failure to disclose Mendoza’s statements, the government
argues, and the dissent agrees, that Tavera (although confined to his prison cell) or his
lawyer should have exercised “due diligence” and discovered the statements by asking
Mendoza if he had talked to the prosecutor. This “due diligence” defense places the
burden of discovering exculpatory information on the defendant and releases the
prosecutor from the duty of disclosure. It relieves the government of its Brady
obligations. In its latest case on the issue, however, the Supreme Court rebuked the
Court of Appeals for relying on such a due diligence requirement to undermine the
Brady rule.

         In Banks v. Dretke, 540 U.S. 668 (2004), the Court considered the Fifth Circuit’s
use of a due diligence requirement to dismiss the defendant’s Brady claim. As in this
case, the diligence question in Banks was whether the defendant “should have asked to
interview” a witness who could have furnished the exculpatory evidence the prosecutor
did not disclose. Banks, 540 U.S. at 688. The Supreme Court rejected this requirement
in no uncertain terms at page 696:

         The State here nevertheless urges, in effect, that “the prosecution can lie
         and conceal and the prisoner still has the burden to . . . discover the
         evidence,” Tr. of Oral Arg. 35, so long as the “potential existence” of a
         prosecutorial misconduct claim might have been detected, id., at 36. A
         rule thus declaring “prosecutor may hide, defendant must seek,” is not
         tenable in a system constitutionally bound to accord defendants due
         process. “Ordinarily, we presume that public officials have properly
         discharged their official duties.” Bracy v. Gramley, 520 U.S. 899, 909


         3
            The government insists that Mendoza’s statements are “at best, equally inculpatory and
exculpatory.” Br. of the United States at 32. We cannot take this argument seriously. As we discuss in
Part II.B below, the government must show more than the defendant’s mere knowledge to establish
liability for conspiracy or possession with intent to distribute. Mendoza may have changed his story, but
he was consistent in saying to Taylor and the agents at the interviews that Tavera did not know there were
drugs in the truck before he agreed to accompany Mendoza and that Tavera did not ride along to provide
security. This information, if believed, exculpates Tavera by showing his lack of willing involvement in
the conspiracy or intent to distribute drugs.
No. 11-6175            United States v. Tavera                                                    Page 8


         (1997) (quoting United States v. Chemical Foundation, Inc., 272 U.S. 1,
         14–15 (1926) (internal quotation marks omitted)). We have several times
         underscored the “special role played by the American prosecutor in the
         search for truth in criminal trials.” Strickler, 527 U.S., at 281; accord
         Kyles, 514 U.S., at 439–440; United States v. Bagley, 473 U.S. 667, 675,
         n. 6 (1985); Berger, 295 U.S., at 88. See also Olmstead v. United States,
         277 U.S. 438, 484 (1928) (Brandeis, J., dissenting). Courts, litigants, and
         juries properly anticipate that “obligations [to refrain from improper
         methods to secure a conviction] . . . plainly rest[ing] upon the
         prosecuting attorney, will be faithfully observed.” Berger, 295 U.S., at
         88. Prosecutors’ dishonest conduct or unwarranted concealment should
         attract no judicial approbation.

(Emphasis added). Prior to Banks, some courts, including the Sixth Circuit, as our
dissenting colleague argues, were avoiding the Brady rule and favoring the prosecution
with a broad defendant-due-diligence rule. But the clear holding in Banks should have
ended that practice.4

         The Supreme Court’s rejection of the idea that the “prisoner still has the burden
to discover the evidence” is based in part on the fact that the prosecution has the
advantage of a large staff of investigators, prosecutors and grand jurors, as well as new
technology such as wiretaps of cell phones. That is one of the reasons that these
investigators must assist the defendant who normally lacks this assistance and may
wrongfully lose his liberty for years if the information they uncover remains undisclosed.
The superior prosecutorial investigatory apparatus must turn over exculpatory
information. The Brady rule imposes an independent duty to act on the government, like
the duty to notify the defendant of the charges against him.

         The prosecutor and our dissenting colleague would fault Tavera’s lawyer for not
finding out that Mendoza had at first told the prosecutor that Tavera was innocent before
later changing his story in plea negotiations. But if the lawyer lost the benefit of Brady
by his failure to “seek” (as the Supreme Court describes it in Banks), the lawyer most

         4
           Our dissenting colleague argues that the Sixth Circuit has adopted the due diligence defense as
a “gloss” but that we must apply it here anyway despite the Supreme Court’s opinion to the contrary in
Banks. In Bell v. Bell, 512 F.3d 223, 235 (6th Cir. 2008), the en banc court distinguished Banks on the
ground that Bell involved “public sentencing records” rather than “information known to investigating
officers that defendants had no reason to know about” — the situation in Tavera’s case. The instant case
is not a “public records” case.
No. 11-6175         United States v. Tavera                                          Page 9


certainly then would have been guilty of ineffective assistance of counsel. According
to the prosecution here, as the government argued in Banks, it was the lawyer’s
responsibility to “discover this evidence.” If the prosecution and the dissent are right,
we must punish the client who is in jail for his lawyer’s failure to carry out a duty no one
knew the lawyer had. The Banks case makes it clear that the client does not lose the
benefit of Brady when the lawyer fails to “detect” the favorable information.

        Even with a broad diligence rule, it seems highly unlikely in this case that an
adverse co-defendant like Mendoza, if interviewed, would have disclosed to Tavera that
he had at first told the prosecutor that Tavera was innocent but changed his story during
his plea negotiations. Mendoza’s lawyer would have told him that he would be
admitting to a federal crime by admitting that he had lied to government agents either
before or after the plea agreement. See 18 U.S.C. § 1001.

        It is not unusual for prosecutors to receive exculpatory statements the defendant
does not know about. This is the type of information Brady was designed to force into
the open. See both Brady and Strickler, 527 U.S. at 282–89 (rejecting due diligence
argument where government failed to disclose prior statement inconsistent with
witness’s trial testimony).

        In sum, we follow the Supreme Court in Brady, Strickler, and the recent Banks
case, and decline to adopt the due diligence rule that the government proposes based on
earlier, erroneous cases.

                                      B. Materiality

        To determine whether nondisclosure of exculpatory evidence resulted in an
unfair trial, we assess whether the evidence was “material” to a defendant’s case.
Evidence is material under Brady if there is a “reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have been
different.” United States v. Bagley, 473 U.S. 667, 682 (1985). “Reasonable probability”
is defined as “probability sufficient to undermine confidence in the outcome.” Id. The
court must review the trial record and decide whether it remains confident that the
No. 11-6175         United States v. Tavera                                        Page 10


outcome would be the same even if the jury heard the suppressed evidence. See Kyles
v. Whitley, 514 U.S. 419, 434 (1995) (“The question is not whether the defendant would
more likely than not have received a different verdict with the evidence, but whether in
its absence he received a fair trial, understood as a trial resulting in a verdict worthy of
confidence.”). If consideration of the additional evidence shakes the court’s confidence
in the verdict, a new trial should be ordered even if there remains sufficient evidence to
sustain a conviction. See Strickler, 527 U.S. at 290 (“[T]he materiality inquiry is not just
a matter of determining whether . . . the remaining evidence is sufficient to support the
jury’s conclusions.”); United States v. Agurs, 427 U.S. 97, 112 (1976) (“[T]he omission
must be evaluated in the context of the entire record.”).

        Here, Tavera was convicted of conspiracy to distribute the methamphetamine as
well as possessing it with intent to distribute. Liability for each crime requires a
showing of intent. To establish conspiracy, the government must prove that the
defendant knew the “essential object of the conspiracy” and that he was “a party to the
general conspiratorial agreement.” United States v. Christian, 786 F.2d 203, 211 (6th
Cir. 1986). Where drugs are involved, the government must show “an agreement to
violate drug laws,” “intent to join the conspiracy,” and “participation in the conspiracy.”
United States v. Sliwo, 620 F.3d 630, 633 (6th Cir. 2010). As for possession with intent
to distribute, physical presence at the place where drugs are found is insufficient proof.
The defendant must have “ownership, dominion, or control over the contraband itself or
the premises or vehicle in which the contraband is concealed.” United States v. White,
932 F.2d 588, 589 (6th Cir. 1991). Additionally, the government must show “intent [to
distribute], as opposed to mere knowledge.” Id. at 590.

        Having reviewed the trial record, we cannot be confident that the jury would
have found these elements satisfied had it known of Mendoza’s statements. The
government’s proof of Tavera’s intent to join the conspiracy and distribute the drugs
was not overwhelming. The only direct evidence of intent was Granado’s testimony.
This was problematic proof, to say the least. Granado had serious credibility issues,
given his established history as a drug dealer and his personal incentive to help the
No. 11-6175         United States v. Tavera                                        Page 11


prosecution. Of course, problematic evidence is not necessarily insufficient evidence,
but sufficiency is not the question that Brady requires us to address. Had Tavera been
able to bolster his own testimony with Mendoza’s statements, he would have added a
significant amount of weight to his side of the scale. Mendoza was a felon, but,
considering the circumstances in which his statements were given, a juror may have
believed he was telling the truth at first rather than after he had negotiated a guilty plea
with the government. When the suppressed evidence tends to prove that the defendant
did not willingly assist in a drug deal, and when the only evidence showing otherwise
is the testimony of an indicted co-defendant, we cannot say with any confidence that the
outcome of the trial would have been the same.

        The government offers several reasons why Mendoza’s statements would not
have changed the outcome of the trial. First, it asserts that Mendoza’s statements were
both internally inconsistent (because Mendoza changed his story between the first and
second debriefings) and inconsistent with Tavera’s trial testimony (because Tavera
testified that they were traveling to “estimate” a roofing job and Mendoza told the
government that they were traveling to “do” a roofing job). These discrepancies do not
give us pause. While Mendoza indeed changed his story, he maintained that Tavera
knew of no drugs before getting in the truck and had no role in providing security. And
the distinction between estimating a roofing job and actually performing it is
insignificant. Both men stated that they intended to do legitimate work in Tennessee.

        Second, the government argues that other evidence corroborates Tavera’s guilt.
This evidence includes Tavera’s own “largely incredible” testimony (namely his
contention that he didn’t know the exact location of the roofing job and that he couldn’t
hear Mendoza’s phone conversations in the truck); wiretaps in which Granado referred
to “his people” in North Carolina (where Tavera lived); the fact that Granado previously
used the truck in which Tavera was arrested to conduct a drug transaction with Agent
Templeton; and phone records, including Tavera’s previous calls with Mendoza and
Rivera. However, none of this evidence goes to the ultimate issue of the defendant’s
intent. The best proof—the phone calls—can be explained by Tavera’s testimony that
No. 11-6175          United States v. Tavera                                     Page 12


he knew Mendoza and Rivera through legitimate activity. Moreover, the government
fails to acknowledge other proof in Tavera’s favor, namely, unlike Mendoza, he lacked
methamphetamine traces on his hands and cell phone.

       Finally, the government argues that Mendoza’s statements would have been
impeached and disproved had Tavera introduced them. Specifically, the government
could introduce a letter in the record in which Mendoza tried to convince Rivera to lie
about the crime, as well as Mendoza’s plea agreement stipulating that Tavera “knew that
they were transporting methamphetamine from North Carolina to be delivered to another
person in Tennessee and agreed to accompany [Mendoza].” Though the latter piece of
evidence is unfavorable to Tavera, it does not trump the statements that Mendoza
provided at the debriefings. If faced with both Mendoza’s plea agreement and his
statements to the government, a jury would have to determine which evidence deserves
more weight in light of the “reasonable doubt” standard. We cannot be confident how
they would have assessed either piece of evidence in light of the entire record. The
government has no reasonable justification for withholding the Mendoza statements. We
do not want other prosecutors to imitate the prosecutor’s conduct in this case. Brady and
Banks do not require the defendant to discover such undisclosed statements laying in the
prosecutor’s file.

       Accordingly, the judgment of the district court is vacated and the case is
remanded for further proceedings.
No. 11-6175        United States v. Tavera                                       Page 13


                                 __________________

                                      DISSENT
                                 __________________

       CLAY, Circuit Judge, dissenting. Defendant Abel Martinez Tavera and his co-
defendant Placido Ventura Mendoza were together during the commission of the crime
for which Defendant was convicted. Other than Defendant himself, Mendoza was the
only witness who could have corroborated Defendant’s version of events, and Defendant
admits that he knew as much. But Defendant never attempted to contact Mendoza,
interview him, or call him as a defense witness. Binding precedent in this Circuit holds
that, under these circumstances, the government does not violate Brady v. Maryland,
373 U.S. 83 (1963), if it fails to disclose a statement made by a non-testifying witness
such as Mendoza. See Benge v. Johnson, 474 F.3d 236, 244 (6th Cir. 2007); United
States v. Corrado, 227 F.3d 528, 538 (6th Cir. 2000); United States v. Mullins, 22 F.3d
1365, 1371–72 (6th Cir. 1994); United States v. Todd, 920 F.2d 399, 405 (6th Cir. 1990).
Although this rule may be misguided, as the majority insists that it is, I can find no
meaningful way to distinguish these precedents. Because these prior holdings are
binding on this panel, I would affirm Defendant’s conviction.

       The majority seems to acknowledge the precedential nature of these Sixth Circuit
cases, see Maj. Op. at 8, but rather than apply them, argues that they were essentially
overruled by the Supreme Court’s decision in Banks v. Dretke, 540 U.S. 668 (2004).
However, Banks does not purport to upset the rule announced in our Circuit’s cases, nor
has any court ever held that it did so. Rather, Banks stands for the uncontroversial
proposition that a prosecutor cannot lead a defendant to believe that he possesses all
relevant information when, in fact, he is mistaken about significant details that only the
government knows. See id. at 693–96. I have favored applying the principle in Banks
whenever a prosecutor falsely represents that all favorable information has been
disclosed because, in those situations, the defendant is effectively prevented from
investigating on his own. See Bell v. Bell, 512 F.3d 223, 241–42 (6th Cir. 2008) (Clay,
J., dissenting). This case presents quite a different situation. The government in this
No. 11-6175         United States v. Tavera                                      Page 14


case made no representations to Defendant, and none of the government’s conduct could
have led Defendant to believe that everything in its files had been disclosed. Under
these circumstances, our precedents tell us that Brady is not violated.

         If we were writing on a blank slate or applying Brady without considering the
subsequent controlling case law of the Sixth Circuit, the majority’s holding might well
be sustainable. However, Brady is not the only star in the constellation of cases that we
are obliged to consider and faithfully apply. Even if many of the controlling cases are
unwise or ill-conceived in light of the fairness concerns that underpin Brady, we are no
less bound to adhere to them. A prior published panel decision “remains controlling
authority unless an inconsistent decision of the United States Supreme Court requires
modification of the decision or this Court sitting en banc overrules the prior decision.”
Rutherford v. Columbia Gas, 575 F.3d 616, 619 (6th Cir. 2009). Furthermore, “[i]n the
Sixth Circuit, as well as all other federal circuits, one panel cannot overrule a prior
panel’s published decision.” United States v. Washington, 127 F.3d 510, 517 (6th Cir.
1997).

         In Brady itself, the state prosecutor, in response to a specific request for
information, misled the defendant by disclosing some of his co-defendant’s pretrial
statements while withholding the co-defendant’s confession to the murder for which the
defendant was ultimately convicted. Brady, 363 U.S. at 84–87. The Supreme Court held
that the prosecutor’s suppression of the evidence violated the defendant’s due process
rights. Id. at 87. The Court later held, in United States v. Agurs, 427 U.S. 97 (1976),
that some evidence otherwise “unknown to defense counsel” must be disclosed to the
defendant when no request has been made, but it limited that holding to evidence
“obviously of such substantial value to the defense that elementary fairness requires it
to be disclosed even without a specific request.” Id. at 110.

         The courts of appeals, including the Sixth Circuit, have attached an additional
gloss to the Brady rule. “‘[T]here is no Brady violation if the defendant knew or should
have known the essential facts permitting him to take advantage of the information in
question, or if the information was available to him from another source.’” Jones v.
No. 11-6175        United States v. Tavera                                       Page 15


Bagley, 696 F.3d 475, 487 (6th Cir. 2012) (quoting Carter v. Bell, 218 F.3d 581, 601
(6th Cir. 2000)); see also Doan v. Carter, 548 F.3d 449, 460 (6th Cir. 2008) (holding
that the failure to disclose evidence known to the defense “cannot form the basis of a
Brady violation”). To be entitled to a new trial under Brady, the defendant must show
that the suppressed exculpatory evidence “could not have been discovered earlier with
due diligence.” Corrado, 227 F.3d at 538.

       Rightly or wrongly, this Court has applied this diligence requirement in
circumstances like those present in this case: where a defendant knows of the existence
and relevance of a non-testifying witness but fails to contact either the witness or the
government. In Benge v. Johnson, a habeas case, a state defendant charged with murder
argued that the state had violated Brady by failing to turn over potentially exculpatory
statements made to a grand jury by a witness who was never called by the state to testify
at trial. Benge, 474 F.3d at 243. This Court disagreed, finding that because the
defendant and the witness were together for the relevant time period, the defendant knew
all the information that could have led him to the witness on his own. Id. Benge is
largely indistinguishable from this case. In this case, Mendoza, a non-testifying witness,
made potentially exculpatory statements to the government. Although Defendant did not
know of the statements themselves, he admits that he “was obviously aware of the
substance of Mendoza’s statements” because they were together during the commission
of the crime. (Appellant’s Reply Br. 2.) But Defendant made no inquiries of either
Mendoza or the government.

       Similarly, in United States v. Corrado, this Court held that the government was
not required to disclose statements made by non-testifying witnesses when the defendant
“made no showing that he would have been unable to identify, locate, and interview
these individuals through reasonable efforts on his own part.” Corrado, 227 F.3d at 538;
accord Mullins, 22 F.3d at 1371–72 (finding no Brady violation when the government
did not disclose a witness’s statement because the defendant was aware of the content
of the statement); Todd, 920 F.2d at 405 (finding no Brady violation where the defendant
was aware that witnesses might have had exculpatory information). Like the majority,
No. 11-6175        United States v. Tavera                                       Page 16


I question the wisdom of imposing such investigatory burdens on criminal defendants,
but the import of these cases is nonetheless clear: a defendant who knows that a witness
possesses potentially exculpatory information must attempt to take advantage of that
knowledge.

       Other circuits have similarly held that Brady is not implicated when a defendant
is aware of a witness’s potentially exculpatory knowledge but fails to take any steps to
interview the witness or obtain any of their prior statements. See United States v. Bond,
552 F.3d 1092, 1096 (9th Cir. 2009) (“[W]here a witness is involved the government is
not required to make his statement known to a defendant who is on notice of the
essential facts which would enable him to call the witness and thus take advantage of any
exculpatory testimony he might furnish.” (internal quotation marks and alterations
omitted)); Pondexter v. Quarterman, 537 F.3d 511, 526 (5th Cir. 2008); Fullwood v.
Lee, 290 F.3d 663, 686 (4th Cir. 2002); Wright v. Hopper, 169 F.3d 695, 702 (11th Cir.
1999); United States v. Lockhart, 956 F.2d 1418, 1425–26 (7th Cir. 1992); United States
v. Hicks, 848 F.2d 1, 3–4 (1st Cir. 1988); United States v. LeRoy, 687 F.2d 610, 618–19
(2d Cir. 1982); see also Coe v. Bell, 161 F.3d 320, 344 (6th Cir. 1998) (“Brady
obviously does not apply to information that is not wholly within the control of the
prosecution.”)

       I agree with the majority that, in many cases, the rule imposed by our precedents
will place an unfair burden on defendants to conduct their own investigations and relieve
prosecutors of the disclosure obligations that Brady may have originally envisioned. But
we must apply the law as it is, not as we wish it were. The Supreme Court has
repeatedly told us that even though a broad criminal discovery regime “might be
desirable, the Constitution surely does not demand that much.” Agurs, 427 U.S. at 109;
see also Weatherford v. Bursey, 429 U.S. 545, 559 (1977) (“There is no general
constitutional right to discovery in a criminal case.”). The law as it stands does not
support the result reached by the majority in this case.

       The majority goes on to find that even if Mendoza had been approached by
Defendant, Mendoza was unlikely to have talked to him, much less testified on his
No. 11-6175        United States v. Tavera                                       Page 17


behalf. The majority further contends that had he been subpoenaed to testify, Mendoza
likely would have invoked his right against self-incrimination. Therefore, the argument
goes, Mendoza’s statements were de facto unavailable, and the government was required
by Brady to disclose them. This argument appears altogether reasonable, and it is an
approach I would favor if asked to decide the issue without being circumscribed by
existing legal precedent. A key promise of Brady is to remedy the persistent imbalance
in resources and access that favors the prosecution over the defense, and for the courts
to perpetuate that imbalance—whether directly caused by the government or not—seems
to abdicate Brady’s promise.

       However, this sensible argument is once again contradicted by binding precedent.
In Benge, the witness with potentially exculpatory information simply refused to speak
with the defendant’s attorney. Benge, 474 F.3d at 244. This Court held that under such
circumstances, the government does not violate Brady by not disclosing the witness’s
prior statements. Id. The witness’s “refusal to speak with counsel for [the defendant]
did not result from any action by the state . . . . No matter how unfortunate for [the
defendant], this was simply not the prosecutor’s doing.” Id.; see also United States v.
Cheatham, 899 F.2d 747, 753 (8th Cir. 1990) (“No constitutional violation occurs when
a witness chooses of her own volition not to be interviewed by the defense.”).

       In Mullins, a non-testifying witness had been interviewed by the FBI, and the
government admitted that it possessed a summary of that interview which it did not
disclose to the defendant. Mullins, 22 F.3d at 1371. The defendant knew that the witness
may have been able to contradict some of the government’s evidence, and he asked the
witness if he would testify. The witness told the defendant that he would not voluntarily
testify, and if subpoenaed, would assert his Fifth Amendment rights. Id. at 1371 n.2.
Even though the witness was practically inaccessible to the defendant, this Court found
that the government had not violated Brady by failing to disclose the witness’s prior
statement because the substance of the witness’s knowledge was known to the defendant.
Id. at 1372. Under Benge and Mullins, the reason that a witness refuses to speak with
the defendant thus appears irrelevant. Unless the witness’s unavailability is somehow
No. 11-6175        United States v. Tavera                                        Page 18


caused by or attributable to the government, Brady is not implicated because evidence
has not been “suppressed.” This rule seems quite ill-conceived, but it binds us
nonetheless.

       When a defendant knows of the existence of a witness with potentially
exculpatory information, our cases appear to require some act of “suppression” by the
government. A defendant’s reasonable reliance on an “open file” policy, for example,
would suffice to establish government suppression because it would constitute a
representation by the government that all favorable information had been disclosed. See
Strickler v. Greene, 527 U.S. 263, 283–85 (1999). Similarly, the government cannot
lead a defendant to believe that he possesses all relevant information when, in fact, he
is mistaken about significant details like whether a government witness was a police
informant. See Banks, 540 U.S. at 693–94 (“A rule thus declaring ‘prosecutor may hide,
defendant must seek,’ is not tenable in a system constitutionally bound to accord
defendants due process.”). Had Defendant taken any steps to pursue the information he
admittedly possessed about Mendoza’s identity and his potentially exculpatory
knowledge, the government would have been required to respond truthfully. Because
Defendant did nothing, our precedents in Benge and Mullins absolve the government of
responsibility.

       Had the government concealed evidence after a specific request or falsely
represented that it had disclosed all favorable evidence, a new trial would be warranted
without question. In the absence of contrary controlling case law, I would favor an
extension of these principles to this very case. Prosecutors should be obliged to turn
over evidence in their possession that is practically unavailable to the defendant, even
if the government did not cause the evidence to be unavailable. Such a rule is consistent
with Brady’s “overarching concern that the defendant receives a fair trial” and the
Supreme Court’s consistent attempts to discourage prosecutors from engaging in
“unsavory gamesmanship” when the defendant’s liberty is at stake. See Bell, 512 F.3d
at 240, 244 (Clay, J., dissenting). Nevertheless, it is up to this Court sitting en banc or
No. 11-6175         United States v. Tavera                                     Page 19


the Supreme Court, not this panel, to decide whether the applicable Sixth Circuit case
law has unduly strayed from the Supreme Court’s holding in Brady.

       Brady’s disclosure requirement is undoubtedly among the bedrock principles of
our criminal justice system. Although subsequent cases have not adequately respected
Brady’s commitment to fundamental fairness, these cases control our decision.
Notwithstanding the majority’s view of what Brady should have required in this case,
our controlling precedents tell us that the evidence in question was not “unavailable”
within the meaning of Brady because Defendant was aware of Mendoza’s potentially
exculpatory knowledge but failed to take any steps to interview him or obtain any of his
prior statements. Recognizing that we are bound by this case law, we are required to
affirm Defendant’s conviction and sentence. Therefore, I respectfully dissent from the
Court’s judgment.
