                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA




 UNITED STATES OF AMERICA

       v.
                                                      Crim. Action No. 06-00334 (ESH)
 HAJI BAGCHO,

                  Defendant.




                                   MEMORANDUM OPINION

        Before the Court is defendant Haji Bagcho’s motion for a new trial. (Defendant’s Motion

for New Trial, June 5, 2015 [ECF 105] (“Def’s Mot.”).) Defendant was convicted in 2012 of

three narcotics-related charges and sentenced to life in prison. The government subsequently

disclosed that, prior to trial, a U.S. government agency had concluded in June 2010 that one of

the prosecution’s principal witnesses, Kiramatuallah Shir Mohammed Khan (“Qari”), was a

fabricator who had provided non-credible information to the agency. (See Arthur G. Wyatt

Letter to Sandra Rolland, September 22, 2015 (“Sept. 22 Letter”).) Defendant now argues that

the prosecution’s failure to disclose this agency’s credibility assessment constituted a Brady

violation, depriving him of a fair trial.

        For the following reasons, the Court concludes that the government violated defendant’s

right to due process by failing to turn over the favorable impeachment evidence, but that the

Brady evidence was only material to Count Four, which charged that defendant trafficked

narcotics while funding terrorism in violation of 21 U.S.C. §§ 960(a), 841(a), and 841(b)(1)(A).
                                          BACKGROUND

I. FACTS

          On January 28, 2010, the grand jury charged defendant with four offenses in a

superseding indictment: conspiracy from 2005 to 2010 to distribute one kilogram or more of

heroin intending and knowing that the heroin would be unlawfully transported into the United

States, in violation of 21 U.S.C. §§ 959, 963, and 960(b)(1)(A); distribution on September 25,

2006, of one kilogram or more of heroin intending and knowing that the heroin would be

unlawfully transported into the United States, in violation of 21 U.S.C. §§ 959(a)(1), 959(a)(2),

and 960(b)(1)(A); distribution on May 21, 2008, of one kilogram or more of heroin intending

and knowing that the heroin would be unlawfully transported into the United States, in violation

of 21 U.S.C. §§ 959(a)(1), 959(a)(2), and 960(b)(1)(A); and narcotics trafficking while funding

terrorism, in violation of 21 U.S.C §§ 960(a), 841(a), and 841(b)(1)(A) (“narcoterrorism”).

(Superseding Indictment, Jan. 28, 2010 [ECF 11].) At the conclusion of defendant’s first trial in

November 2011, the jury was deadlocked on all counts and a mistrial was declared.

          At the second trial, the prosecution’s evidence proved that defendant ran a large heroin

trafficking operation in Afghanistan, beginning during the time of Taliban rule and continuing

after the American invasion in 2001. 1 In support of the indictment, the government introduced

extensive physical evidence, including tape-recorded conversations between defendant and co-

conspirators about heroin transactions; heroin production, accounting, and packaging equipment

seized from defendant’s compound in a raid on October 9, 2006; drugs delivered to the

government by DEA informants; and ledgers seized from an October 31, 2006 raid on the sarafi

(or money-changing shop) of defendant’s associate, Zahir Shah.



1
    Heroin distribution was apparently legal under the Taliban.
                                                  2
         The prosecution also relied on U.S. and Afghan law enforcement officials and several

Afghan civilians. Count One (conspiracy) was supported by testimony from DEA Agents

Higgins, Thompson, Cowles, Brittain and Mah; undercover informants known as Farid and Qari;

undercover Afghan police officers Captain Javid, Colonel Shaheen, and Captain Yaseen; and

various experts. Count Two (2006 distribution) relied on the testimony of Agent Higgins, Agent

Cowles, Captain Javid, and Farid. Count Three (2008 distribution) was supported by testimony

from Agent Mah, Qari, and Captain Yaseen. Count Four (narcoterrorism) was based almost

entirely on Qari’s testimony.

         As a longtime confidant and employee of defendant, Qari provided the most wide-

ranging testimony of any witness. According to Qari, he began working for defendant’s son,

Sacha Gul, in late 1998. Qari testified that Sacha Gul received phone calls from his father about

drug transactions and then wrote corresponding entries into accounting ledgers, including some

in foreign currency amounts. At some point after the American invasion in 2001, Qari was

employed by the defendant. He served as a teacher for defendant’s children, but also worked in

the heroin-trafficking operation and lab, where he helped stir the opium in drums and then

packaged it for distribution using a heat-sealing machine.

         A few months before the October 9, 2006 raid by DEA agents on defendant’s

compound, 2 defendant partnered with individuals whom Qari identified as Haji Ghayrat and Haji

Bakhti 3 to send 250 kilograms of heroin to America and advised his chemist Fahrman Shah to

prepare the drugs quickly. Qari testified that defendant then celebrated the deal by throwing an



2
 Since Qari often had difficulty pinpointing specific dates for relevant events, he used the
October raid as a temporal ‘before and after’ reference point in his testimony.
3
    “Haji” is an honorific title given to Muslims who complete the pilgrimage (or Hajj) to Mecca.

                                                  3
enormous party that included sheep sacrifices. Qari described defendant’s female employees

fasting in order to swallow large amounts of the heroin to transport to the United States. He also

testified to another deal that occurred around the same time period, shortly before the October

raid, between defendant and Haji Wazyat to distribute one thousand kilograms of heroin. 4

          Qari was present at defendant’s compound for the October 9, 2006 raid and was

handcuffed by the DEA, but not arrested. He testified that afterward he began fearing the

American government, which in turn prompted him to begin working for the DEA on multiple

cases and investigations. Qari first met with the DEA in September 2007, but signed his

cooperation agreement with the agency on May 27, 2008. He insisted that he did not agree to

help the DEA for financial reasons, despite receiving $45,000; instead, he wanted to stop the

flow of heroin and move out of defendant’s home. Qari also testified that he liked working for

the Americans and hated the Taliban.

          Following the raid, defendant moved to Pakistan. The DEA enlisted Qari, an individual

named Mukhabir, and Captain Yaseen in a plan where they sought to involve defendant in a fake

deal to send heroin to Japan and the United States. In April 2008, Qari and Mukhabir recorded

conversations with defendant about executing such a deal. Then, on May 21, 2008, Qari testified

that he, Mukhabir, and Captain Yaseen (with DEA coordination and support) sold a 4 kilogram

sample of heroin on defendant’s behalf as part of a “controlled buy.” On July 9, 2008, defendant

revealed to Qari in a phone call that he knew he was working for the DEA, and as a result, he cut

off communications for a period of time.

          According to Qari, both before and after the October 2006 raid, defendant was funneling

money, weapons, and supplies to members of the Taliban to support jihad. He first mentioned



4
    According to Qari, the narcotics from this deal were eventually seized by the police.
                                                   4
this connection to the Taliban in a meeting with the DEA on October 10, 2008. Qari described

multiple meetings between Sacha Gul, himself, and Taliban Commander Garq Parq Maftoon—

including a meeting at defendant’s home—where they gave money on behalf of defendant to

Maftoon. Qari also testified that defendant sent weapons and supplies via heroin smugglers to

Taliban Commander Khona and to the Hayatabad base of another Taliban fighter named Mulawi

Kabir, adding that defendant kept a record of his transactions with the Taliban in a pocket

notebook.

       Defense counsel vigorously cross-examined Qari. Counsel probed Qari’s frequent

confusion over the sequence of events and attacked his credibility by asking about discrepancies

between Qari’s testimony in the first and second trials, as well as the financial and immigration

benefits he received from the DEA. 5 Defense counsel also probed the issue of why, despite

meeting with the DEA for over a year, Qari failed to mention the connection between defendant

and the Taliban until October 2008.

       The jury convicted defendant of Counts One, Two, and Four, but acquitted on Count

Three. (Verdict Form, Mar. 13, 2012 [ECF 78]). He was sentenced to life imprisonment for

each count, to be served concurrently. (Judgment, June 13, 2012 [ECF 94].)

II. PROCEDURAL POSTURE

       The government first notified defense counsel on April 13, 2015 that information

concerning Qari had come to the attention of the Justice Department. (Def’s Mot., Ex. 3.) The

letter disclosed that “[p]rior to the 2012 trial, a U.S. government agency concluded that Qari had

made statements that were not credible and that Qari was therefore a fabricator.” (Id.) On June



5
 The DEA first discussed these immigration benefits with Qari on August 22, 2010, when agents
discussed acquiring a visa for trial and the possibility of applying for residency status in the
United States. (Trial Tr., Vol. 12, Mar. 7, 2012, at 65.)
                                                  5
5, 2015, defendant filed a motion for a new trial and a motion to compel disclosure of the newly

discovered evidence. (See Def’s Mot.; Def’s Motion to Compel, June 5, 2015 [ECF 106].)

       On July 1, 2015, the government sent defendant a follow-up letter that provided an

unclassified summary of the underlying classified records. (Gov’s Consolidated Response, July

20, 2015 [ECF 111] (“Gov’s Consolidated Response”), Ex. 3.) On July 20, 2015, the

government filed its response to both motions, asking the Court to grant it 45 additional days to

file an ex parte, in camera motion under Section 4 of the Classified Information Procedure Act,

18. U.S.C. App. III (“CIPA”). (Gov’s Consolidated Response at 8.) To determine whether the

underlying classified evidence had to be disclosed, the Court ordered the government to file an

ex parte, in camera motion pursuant to Section 4 of CIPA, and to provide the classified

information for the Court’s in camera review. (Order, July 27, 2015 [ECF 113].)

       The government filed its CIPA motion with the Court’s Classified Information Security

Officer on August 20, 2015, and the Court held an ex parte, in camera CIPA hearing on

September 1, 2015. See CIPA § 5. On September 22, 2015, the Court ordered the government

to deliver a revised, supplemented version of its July 1 letter to defense counsel, granted the

government’s CIPA motion, and denied defendant’s motion to compel additional discovery.

(Order, Sept. 22, 2015 [ECF 132].)

       After delivering the revised letter to defense counsel on September 22, 2015, the

government filed its opposition to defendant’s motion for a new trial on October 2, 2015.

(Government’s Opposition to Defendant’s Motion for New Trial, Oct. 2, 2015 [ECF 134]

(“Gov’s Opp’n”). Defendant filed his Reply on October 28, 2015. (Def’s Reply to Gov’s

Opposition to Motion for New Trial, Oct. 28, 2015 [ECF 136] (“Def’s Reply”).)




                                                 6
III. UNCLASSIFIED SUMMARY OF UNDERLYING EVIDENCE

       The government’s September 22, 2015 letter disclosed that, from November 2009 to June

2010, Qari had provided information to a U.S. government agency via a third party for sums

totaling “less than $10,000.” (Sept. 22 Letter at 2.) In relevant part, the information pertained to

Maftoon, one of the Taliban commanders prominently featured in Qari’s trial testimony. (Id. at

1.) In June 2010, the U.S. government agency concluded that Qari’s statements about an alleged

May 2010 trip to Maftoon’s compound and various terrorism targets were not credible based on

the agency’s view that “the statements regarding counterterrorism matters seemed unrealistic and

sensational.” (Id.) According to the government, there was no further investigation into the

veracity of Qari’s claims, but the U.S. government agency concluded that Qari was “likely a

fabricator and/or information peddler,” and in June 2010, directed the third party to cease contact

with Qari. (Id.) When the government agency received a report from the DEA detailing

information that Qari had provided directly to the DEA, the agency “informed a DEA employee

in the Kabul, Afghanistan office of its conclusion that Qari was a fabricator.” (Id.) According to

the government, this information was stored in government records, but the prosecution failed to

discover it during its searches for Brady material prior to defendant’s two trials “due to

discrepancies in the spelling of Qari’s name.” (Gov’s Opp’n at 3 n.2.)

       On or about May 29, 2014, an Assistant United States Attorney for the Southern District

of New York contacted the DOJ’s Narcotic and Dangerous Drug Section (NDDS) to inquire

about defendant’s case and the witnesses involved. During this conversation and subsequent

review of agency records, NDDS apparently learned for the first time that the potential

impeachment material existed, but was not turned over prior to trial. (Gov’s Opp’n at 3.) The

September 22 letter from DOJ further disclosed that, following the discovery of the evidence, at


                                                 7
least one other federal prosecution that had used Qari as an informant was dropped. (See Sept.

22 Letter at 2 (“The evidence to support the conviction was, in part, based on information

provided by Qari. Based on a number of factors, including…the allegations about Qari

referenced in NDDS’s April 14, 2015 letter, the National Security Division decided not to

approve the criminal complaint at that time.”).) Finally, the government represents that its

searches of the DEA Kabul Office in late 2014 failed to uncover any record of the inter-agency

communication regarding Qari’s credibility. (Id.)

                                          DISCUSSION

I. BRADY VIOLATION

       “Upon the defendant’s motion, the court may vacate any judgment and grant a new trial if

the interest of justice so requires.” Fed. R. Crim. P. 33(a). The government violates a

defendant's right to due process if it withholds evidence that is favorable to the defense and

material to the defendant's conviction. Smith v. Cain, 132 S.Ct. 627, 630 (U.S. 2012) (citing

Brady v. Maryland, 373 U.S. 83, 87 (1963)). The post-trial disclosure of new evidence by the

government therefore warrants a new trial when three requirements are met: (1) the evidence is

favorable to the accused because it is exculpatory or impeaching, see United States v. Bagley,

473 U.S. 667, 676 (1985) (“Impeachment evidence…falls within the Brady rule.”) (citing Giglio

v. United States, 405 U.S. 150, 154 (1972)); (2) the evidence was suppressed by the government

either willfully or inadvertently, including instances where only government investigators were

aware of it, see Kyles v. Whitley, 514 U.S. 419, 437 (1995) (holding that “the individual

prosecutor has a duty to learn of any favorable evidence known to the others acting on the

government’s behalf in the case”); and (3) the evidence was material. Smith, 132 S.Ct. at 630.




                                                 8
       The government does not dispute that defendant satisfies the first two elements. It is

clearly favorable to defendant that a U.S. government agency characterized the most prominent

witness against him as a fabricator after that witness made non-credible statements about an

individual who was a subject of his testimony at trial, and then proceeded to notify the DEA of

that assessment. (See Gov’s Opp’n at 6 (“In Giglio, the Court held that evidence bearing on a

witness’s credibility is included within the types of evidence covered by Brady as being

favorable to the defendant.”) (citing Giglio, 405 U.S. at 154).) That the government’s good-faith

behavior nevertheless constituted suppression is equally uncontestable. (See Gov’s Opp’n at 7

(“[T]he newly discovered evidence was in the possession of a federal government agency prior

to both trials. Despite a search of agency records, government counsel did not locate the

evidence in question and, consequently, did not provide it to the defendant prior to the trials.”).)

       Defendant’s motion for a new trial thus rises or falls based upon whether the

impeachment evidence was material.

II. MATERIALITY OF EVIDENCE

       Suppressed evidence is material “if there is a reasonable probability that, had the

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

Bagley, 473 U.S. at 682. Reasonable probability is lower than a preponderance standard, but

demanding enough that the suppression “undermine[s] confidence in the outcome of the trial.”

U.S. v. Bowie, 198 F.3d 905, 908 (D.C. Cir. 1999) (citing Kyles, 514 U.S. at 434). In other

words, 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.” Kyles, 514 U.S. at 434.




                                                  9
         In response to defendant’s claim that the suppressed evidence undermines confidence in

the jury’s verdict, the government argues that the “impeachment value” of the favorable evidence

“is marginal” for two reasons: (1) the agency’s credibility determination would have been

inadmissible hearsay and thus could not have affected the trial; and (2) even assuming it were

admissible, the evidence would not have affected the verdict because the impeachment would

have been cumulative, and Qari’s testimony was corroborated by other evidence. (Gov’s Opp’n

at 5).

         The Court will now turn to these two arguments.

         A. Use and Admissibility of the Evidence at Trial

         In order for the impeachment evidence to be material, it must have provided some

plausible utility in undermining the prosecution’s case. The government is therefore correct that,

at minimum, the agency’s conclusion that Qari was a fabricator must either have been admissible

or provided defense counsel with a plausible avenue for damaging the government’s case on

cross-examination. See Bowie, U.S. at 911 (“When the undisclosed Brady material consists of

impeachment evidence, a court seeking to determine the probable impact of the violation must

form some idea about how effectively the evidence could have been used in cross-

examination.”).

         The government argues that the agency’s assessment that Qari was a liar constitutes

inadmissible hearsay. But a statement is not hearsay if the statement is offered against an

opposing party and the statement is either “made by the party’s agent or employee on a matter

within the scope of that relationship while it existed,” Fed. R. Evid. 801(d)(2)(D), or “is one the

party manifested that it adopted or believed to be true.” Fed. R. Evid. 801(d)(2)(B).




                                                 10
       It is arguable that the agency’s credibility determination would be admissible under

Federal Rule of Evidence 801(d)(2)(D) as a statement of an agent of the federal government. In

criminal cases, the breadth of the “party-opponent” umbrella has become a matter of some

debate, as courts have disagreed over whether the entire federal government falls within the

term’s ambit. Compare, e.g., United States v. Kattar, 840 F.2d 118, 130 (1st Cir. 1988) (doubting

“whether or not the entire federal government in all its capacities should be deemed a party-

opponent in criminal cases”); U.S. v. Ballou, 59 F.Supp.3d 1038, 1075 (D.N.M. 2014) (“A more

reasonable construction is that…only Department of Justice employees' statements are

attributable to the United States and admissible under rule 801(d)(2)(D), with United States v.

Morgan, 581 F.2d 933, 937 n.10 (D.C. Cir. 1978) (“We note that the Federal Rules clearly

contemplate that the federal government is a party-opponent of the defendant in criminal cases,

and specifically provide that in certain circumstances statements made by government agents are

admissible against the government as substantive evidence.”); U.S. v. Branham, 97 F.3d 835, 851

(6th Cir. 1996) (where the “government concede[d] that Rule 801(d)(2)(D) contemplates that the

federal government is a party-opponent of the defendant in a criminal case”).

       The D.C. Circuit has historically treated out-of-court statements by government

employees more expansively than most jurisdictions. See United States v. Warren, 42 F.3d 647,

655–56 (D.C. Cir. 1994) (admitting statements by a police officer under Rule 801(d)(2));

Morgan, 581 F.2d at 937 n.11 (admitting an out-of-court statement by a police informant); U.S.

v. American Tel. & Tel. Co.. 498 F.Supp. 353, 358 (D.D.C. 1980) (“reject[ing] the proposition




                                                11
that the plaintiff…is the Department of Justice” and admitting out-of-court statements by

members of separate U.S. government agencies). 6

       However, these cases frequently distinguish out-of-court statements that the Justice

Department has blessed as trustworthy from those which the government challenges. See

Warren, 42 F.3d at 655 (“Where, as here, the government has indicated in a sworn affidavit to a

judicial officer that it believes particular statements are trustworthy, it may not sustain an

objection to the subsequent introduction of those statements on grounds that they are hearsay.”)

(citations omitted); Morgan, 581 F.2d at 938 (“Clearly, statements in which the government has

manifested its adoption or belief stand on more solid ground than mere out-of-court assertions by

a government agent. We do not decide that just any statement the informant might have made is

admissible against the government.”); see also U.S. v. Kattar, 840 F.2d 118, 131 (1st Cir. 1988)

(holding that once a prosecution indicates that certain statements by its agents are trustworthy, it

cannot then argue that they constitute inadmissible hearsay). Thus, in the criminal context,

judicial interpretation of Rule 801(d)(2)(D) (covering agents’ statements) has actually been

colored by Rule 801(d)(2)(B) (covering adopted statements). The D.C. Circuit appears to be

motivated by the principle that holding the government to the assertions of a public official who

is unrelated to the prosecution is unfair, unless the government manifestly adopts the statement

before the court.

       Of course, in this case, the government has tried to belittle the U.S. agency’s credibility

assessment of Qari, calling it “unsubstantiated, conclusory, and unreliable.” (Gov’s Opp’n at



6
  Scholarship on the subject suggests that the D.C. Circuit’s treatment of Rule 801(d)(2)(D) may
be gaining traction in other circuits. See FEDERAL PRACTICE: EVIDENCE § 7023, at 221 n.
11 (2014 ed.) (citing the Morgan decision to suggest that other circuits’ more restrictive view of
the government agents’ out-of-court statements may be on the wane).

                                                  12
12.) Given the precedents in this Circuit, the Court must agree that the agency determination is

inadmissible for proving the truth of the matter asserted—that Qari is, in fact, a fabricator.

       That does not, however, completely close the door on admissibility. In its submissions

and the September 22 letter, the government “has, as clearly as possible, manifested its belief”

that the U.S. government agency communicated to DEA headquarters in Kabul, Afghanistan its

determination that Qari was not a credible informant. Kattar, 840 F.2d at 131; see also U.S. v.

Yildiz, 355 F.3d 80, 82 (2d Cir. 2004) (DOJ lawyers can bind the government with Rule

801(2)(B) adoptions in filings); Warren, 42 F.3d at 655 (holding that when “the government has

indicated in a sworn affidavit to a judicial officer that it believes particular statements are

trustworthy, it may not sustain an objection to the subsequent introduction of those statements on

grounds that they are hearsay”). Even if the hearsay-within-hearsay problem would not permit

defense counsel to introduce the agency’s adverse credibility determination to prove the truth of

the matter asserted (i.e. that Qari is an unreliable information-peddler who lied about Maftoon),

see Fed. R. Evid. 805, defense counsel could have introduced the communicated assessment 7 as

evidence that the DEA received notice that another division of the government had designated

Qari as a non-credible source of information—a designation inspired by incredible statements

about Maftoon, who was a central figure in Qari’s testimony.

       Impeachment evidence can be damaging when it allows defense counsel to attack the

reliability of an investigation. See Bowen v. Maynard, 799 F.2d 593, 613 (10th Cir. 1986) (“A



7
   Section 5(F) of CIPA allows the court to “authorize presentation of classified information at
trial by summary or authorize admissions that would render the presentation of classified
information unnecessary.” When the Court granted the government’s CIPA motion, it
authorized the production of an unclassified summary of the credibility evidence. (Order, Sept.
22, 2015 [ECF 132].) At trial, the Court could have permitted presentation of the evidence that
the agency notified the DEA of its characterization of Qari in the form of the unclassified letter
or by admission. CIPA, § 5.
                                                13
common trial tactic of defense lawyers is to discredit the caliber of the investigation or the

decision to charge the defendant, and we may consider such use in assessing a possible Brady

violation.”); Lindsey v. King, 769 F.2d 1034, 1042 (5th Cir. 1985) (awarding a new trial after

Brady evidence “carried within it the potential… for the… discrediting… of the police methods

employed in assembling the case”).

       In Kyles v. Whitley, the Supreme Court considered a possible Brady violation where the

government withheld various incriminating statements by a cooperating source named Beanie,

the disclosure of which would have made the investigation of defendant look inept. As the Court

explained, “the defense could have examined the police to good effect on their knowledge of

Beanie’s statements and … attacked the reliability of the investigation in failing even to consider

Beanie’s possible guilt.” Kyles, 514 U.S. at 446. The Kyles Court proceeded to re-construct the

detectives’ testimony in the case:

       By demonstrating the detectives’ knowledge of Beanie’s affirmatively self-incriminating
       statements, the defense could have laid the foundation for a vigorous argument that the
       police had been guilty of negligence.…Since the police admittedly never treated Beanie
       as a suspect, the defense could thus have used his statements to throw the reliability of
       the investigation into doubt and to sully the credibility of Detective Dillman, who
       testified that Beanie was never a suspect.

Id. at 447. The suppressed evidence in Kyles would also have opened up other avenues of

embarrassing cross-examination as to the inadequacy of the police investigation, including the

fact that the police “never even bothered to check [Beanie’s] story against known fact” and that

the police’s list of cars at the crime scene was incomplete, all of which “would simply have

underscored the unreliability of the investigation and complemented the defense’s attack on the

failure to treat Beanie as a suspect and his statements with a presumption of fallibility.” Id. at

450-51. The Kyles Court ultimately concluded that, with the Brady material, the jury may have

judged the lead police detective to be “either less than wholly candid or less than fully informed”

                                                 14
and the investigation to be limited in scope, negligent in method, and “insufficiently probing” of

the cooperators’ credibility. Id. at 453-54.

       Evidence that the DEA’s Kabul office was told that Qari had been deemed a liar by

another government agency, yet still it elected to use him as a witness would serve to undermine

the reliability of the government’s investigation and its sources. The DEA agents who testified

at trial could have been cross-examined as the detectives were in Kyles. Defense counsel could

have asked them whether they were stationed in the Kabul Office at the time of the inter-agency

communication, and what they knew about the other agency’s conclusion as to Qari’s credibility.

If the agents responded affirmatively, defense counsel could have inquired why they chose to

continue working with Qari as a cooperator. If they pleaded ignorance, defense counsel could

have suggested that the DEA agents had turned a blind eye to information that had been available

to them. Defense counsel also could have asked the agents about the DEA’s protocols for

storing and searching records: how could there be no remaining records of the inter-agency

communication anywhere at the Kabul office, and how could the DEA have failed to properly

search Qari’s name prior to trial? (See Sept. 22 Letter at 2.)

       Agent Mah testified that his confidential sources must “provide truthful information at all

times” (Trial Tr., Vol. 7, Feb. 29, 2012, at 177), because it is “important that CSs provide

truthful information so we could have reliable information,” and he described the contract that

Qari signed promising to “provide truthful information at all times.” (Id. at 181.) Defense

counsel could have asked how Agent Mah would have viewed Qari’s compliance with his

contract if the credibility assessment had been passed along to him. Similarly, when Agent

Higgins testified that the thousands of dollars in payments to Qari by the DEA was

“commensurate with the value of the information or the services rendered” (Trial Tr., Vol. 12,


                                                 15
March 7, 2012, at 33), defense counsel could have challenged whether Agent Higgins would

have valued the benefit of the information provided by Qari differently, knowing the details of

the credibility assessment. Finally, would it have made the DEA agents more skeptical of Qari’s

motivations for continuing to cooperate after being cut off by his other source of U.S.

government income in June 2010?

       A judge has a great deal of discretion in limiting the scope of cross-examination under

Rule 403 and Rule 608(b), but a court would have likely permitted enough of the aforementioned

attack on the integrity of the investigation for defense counsel to create, at least, an impression of

sloppy, bureaucratic bumbling. See Bowie, 198 F.3d at 909 (when imagining hypothetical cross-

examinations for purposes of materiality analysis, “certainty is not necessary”). Like Beanie in

Kyles, Qari was “essential to [the] investigation.” Kyles, U.S. at 445. The fact that the DEA

appears to have ignored or failed to learn of the other agency’s unfavorable assessment of Qari

could suggest to the jury either innocent, organizational incompetence or an “uncritical readiness

to accept the stories and suggestions of” Qari. Id. at 454; see also United States v. Quinn, 537 F.

Supp. 2d 99, 115 (D.D.C. 2008) (defendant could have portrayed evidence that government

failed to investigate suspicions about a key witness’s credibility “as willful ignorance, and the

jury might question why the lead case agent would not actively seek out the truth on this

important point before continuing with a prosecution”). Moreover, the government’s inability to

locate Qari in the inter-agency database due to name misspellings and the apparent loss of

records would (like the incomplete list of cars parked at the crime scene in Kyles) “simply have

underscored the unreliability of the investigation.” Id. at 450-51.

       In addition to impugning the government’s investigation, defense counsel could have

deployed the suppressed evidence to show Qari’s bias on cross-examination. When asked


                                                 16
whether he gave truthful information to the DEA agents in the investigation of defendant, Qari

responded “Yes, absolutely.” (Trial Tr., Vol. 10, March 5, 2012, at 127.) Although extrinsic

evidence is not admissible to impeach a witness's general credibility, it is admissible to show

bias. See U.S. v. Abel, 469 U.S. 45, 46 (U.S. 1984); U.S. v. Robinson, 530 F.2d 1076, 1079 (D.C.

Cir. 1976) ("Ordinarily a witness may not be impeached as to credibility by producing extrinsic

evidence of prior instances of misconduct short of conviction… This rule stands firm enough

when the question is one of impeaching the general credibility of the person as a witness. It does

not apply, however, so as to limit or exclude proof of conduct by the witness evidencing a

specific bias for or against a party."). Defense counsel could have suggested to the jury that,

when the other agency terminated its relationship with Qari in June 2010, he became more

predisposed to please the DEA, upon whom he depended for money and relocation. Defense

counsel could have cross-examined Qari as to whether he worked for other agencies besides the

DEA and whether, to Qari’s knowledge, those agencies always remained confident in the

reliability of his information. Defense counsel might have been able to introduce the extrinsic

evidence of the adverse credibility assessment and resulting removal of Qari from the agency’s

financial payroll to suggest that Qari was more likely to be partial in the DEA’s case against

defendant. See WEINSTEIN’S EVIDENCE (3rd ed.), at 607-17 (1975) ("Bias is never classified

as a collateral matter which lies beyond the scope of inquiry, nor as a matter on which an

examiner is required to take a witness's answer. Bias may be proved by extrinsic evidence even

after a witness's disavowal of partiality.") (emphasis added). The jury could reasonably have

determined that, after Qari’s financial future in Afghanistan as an agency informant became less

promising in June 2010, he became increasingly eager to prove his value to the DEA to continue

obtaining payments and residency in the United States. (See Trial Tr., Vol. 12, Mar. 7, 2012, at


                                                17
65 (Agent Higgins, stating that Qari and the DEA first discussed the possibility of immigration

benefits on August 22, 2010); Trial Tr., Vol. 8, March 1, 2012, at 117-18 (Qari and his entire

family were relocated to the United States).

       The Court agrees with the government that defendant’s efforts to prod Qari into

damaging admissions regarding his lack of truthfulness in the past would not have been

particularly successful. In a similar case, U.S. v. Bowie, the D.C. Circuit considered the probable

effect of cross-examining a police officer witness to a crime, using previously suppressed

evidence that the officer was already under investigation by the United States Attorney’s Office

regarding his testimony in an unrelated criminal case. See 198 F.3d at 907. After finding that

the evidence would not have been admissible, the Bowie Court constructed an extensive

hypothetical cross-examination of Officer Moses. It found that the judge would have held that

defendant could not “establish[] that Moses was untruthful in the prior case,” and that the officer

almost certainly would have answered that it was “news to [him]” that he was on a list of officers

being investigated for perjury and that he was not worried about any such investigation, saying “I

wasn’t worried at all because I told the truth then and I’m telling the truth now.” Id. at 910-11

(finding that the Court would prevent further questioning because “those on the list are not

normally told they are being investigated. It would be highly unusual for an officer to know this.

He said he didn’t know. You asked the question and now you must accept the answer”). The

Bowie Court was dubious that such an exchange would have caused extensive damage to the

witness’s credibility. See id. at 911 (“How likely is it that the cross-examination of Moses would

have been devastating? Not very, even if the Perry Mason of our day were defending Bowie.”)

The D.C. Circuit nevertheless admitted that “it is hard to know what effect such questioning




                                                18
would have had on the jury’s assessment of Moses’s truthfulness” and relied on the fact that

Moses’s testimony was corroborated by another police officer. Id.

       As in the case of Officer Moses, evidence that Qari actually lied about Maftoon to the

other agency would not have been admissible, and it is unlikely that Qari would have known that

a U.S. agency had officially dubbed him a fabricator. Nevertheless, as the Bowie Court noted,

predicting the effect of such an inquiry on the jury is difficult. Moreover, unlike Bowie,

evidence of the agency’s adverse credibility assessment and subsequent termination of Qari as a

discredited informant may have been admissible as extrinsic evidence to suggest bias. 8

       B. Effect of the Impeachment Evidence on the Verdict

       Materiality is not a sufficiency of evidence test. Kyles, 514 U.S. at 434; see also

Strickler v. Greene, 527 U.S. 263, 290 (1999) (“[T]he materiality inquiry is not just a matter of

determining whether, after discounting the inculpatory evidence in light of the undisclosed

evidence, the remaining evidence is sufficient to support the jury’s conclusions.”). But it “must

be evaluated in the context of the entire record.” U.S. v. Agurs, 427 U.S. 97, 112 (1976).

       Impeachment evidence may not be material if it is cumulative of the cross-examination

that actually occurred at trial. United States v. Emor, 573 F.3d 778, 782 (D.C. Cir. 2009). The


8
        The Court is unpersuaded by defendant’s insistence that he could have called as a witness
the unknown U.S. government agent(s) who formed the agency conclusion that Qari was a
fabricator. (See, e.g., Def’s Reply at 6 (the Agent could “testify that Qari provided false
information about Maftoon and others”). Even setting aside concerns over classified
information, the government stated in its unclassified summary that it has been unable to find
any record of the agency’s communication of its credibility determination, which appears to
include the identity of the specific employees who formed the original assessment and contacted
the Kabul DEA Office. (Sept. 22 Letter at 2.) Materiality analysis under Brady requires some
degree of re-imagination of an alternate trial where suppressed evidence has been disclosed, but
it does not require that all details associated with the formation, discovery, and transmission of
such evidence be perfectly catalogued and turned over. As previously discussed, defendant
would be entitled to point out those gaps in the evidence that could suggest ineptitude by the
government and unreliability in the investigation.

                                                19
suppressed credibility evidence here would not have been cumulative. It is true that defense

counsel cross-examined Qari at great length, probing his credibility with questions about “his

progressive truth telling” and his meetings with Maftoon (Gov’s Opp’n at 16), yet “the fact that

other impeachment evidence was available to defense counsel does not render additional

impeachment evidence immaterial.” U.S. v. Cuffie, 80 F.3d 514, 517 (D.C. Cir. 1996) (citations

omitted). Undisclosed impeachment evidence “can be immaterial because of its cumulative

nature only if the witness was already impeached at trial by the same kind of evidence.” Id. at

518. As discussed, the undisclosed evidence would have allowed the defense to not just

generally impeach Qari’s testimony, but also to cast doubt on the credibility of the DEA

investigators who failed to properly receive and/or act upon notice of an unreliable informer.

Moreover, the additional $10,000 Qari received from the other agency suggests bias that is

different from the bias created by the payments that were disclosed at trial. Cross-examination

regarding how the other U.S. government agency cut off its payments to Qari in June 2010

would not have been cumulative either, since it would serve purposes that were unavailable to

defense counsel: first, to substantiate the other agency’s conviction in its credibility assessment,

and second, to imply to the jury that losing that source of income could have motivated Qari to

embellish his testimony.

       Alternatively, suppressed evidence may not be material “if the government’s other

evidence is strong enough to sustain confidence in the verdict,” Smith, S.Ct. at 630, or the

impeached testimony is corroborated by other unimpaired evidence, such as unimpeached

testimony or physical evidence. See Bowie, 198 F.3d at 911. In a case involving convictions for

multiple counts, analysis of whether confidence in the verdict remains “must be assessed count

by count.” United States v. Johnson, 592 F.3d 164, 171 (D.C. Cir. 2010); see also United States


                                                 20
v. Oruche, 484 F.3d 590, 597 (D.C. Cir. 2007) (convictions for certain counts are not “placed in

doubt simply because testimony on other counts is challenged”); United States v. Lloyd, 71 F.3d

408, 412-13 (D.C. Cir. 1995) (finding Brady evidence was material and therefore merited a new

trial for Counts Seven and Eleven of the indictment, but not Counts Three and Five). The Court

thus considers the materiality of the evidence to the convictions on Counts One, Two, and Four

separately below:

       1. Count One

       Count One charged a conspiracy from 2005 to 2010 to distribute one kilogram or more of

heroin intending and knowing that the heroin would be unlawfully transported into the United

States. There is no question that Qari provided substantial testimony about defendant’s heroin-

trafficking network and the ongoing conspiracy with other individuals to distribute heroin

intended for sale in the United States. But Qari’s testimony of a conspiracy was amply

corroborated by both physical evidence and other witnesses. See Bowie, 198 F.3d at 911 (finding

it decisive that an officer whose testimony was undamaged corroborated and bolstered the

testimony of the impeached officer). That aforementioned physical evidence includes, inter alia,

the drug samples obtained by the DEA in the controlled buys; the heroin-production material

seized from defendant’s compound in the October 9, 2006 raid; the taped conversations between

defendant and various co-conspirators discussing drug distribution to the United States, including

calls between Farid and defendant discussing the 2006 sale and calls between Qari and defendant

discussing a deal to send heroin to Japan and the United States; and the accounting ledgers taken

from defendant’s compound in the October 9 raid and from Zahir Shah’s sarafi shop in the

October 31, 2006 raid.

       A court must consider the evidence “remaining unscathed” even where the investigation


                                               21
process itself, and not a specific witness, has been undermined. See Kyles, 514 U.S. at 451 (“not

every item of the State’s case would have been directly undercut if the Brady evidence had been

disclosed,” and in particular, the physical evidence). For Count One, the sheer volume of

“unscathed” evidence makes it impossible to conclude that the disclosed evidence would have

resulted in a different verdict.

        2. Count Two

        Count Two charged distribution on September 25, 2006, of one kilogram or more of

heroin intending and knowing that the heroin would be unlawfully transported into the United

States. None of Qari’s testimony applied to the September 25, 2006 controlled buy. Moreover,

the conviction can be sustained almost exclusively by other evidence, including tape-recorded

phone calls between defendant and Farid saying the heroin will go to the United States, the

ledger memorializing the transaction that was seized from Zahir Shah’s stall, and the physical

delivery of 2 kilos of heroin seized by the DEA. Thus, even had the undisclosed evidence

undermined the jury’s confidence in the reliability of the entire DEA investigation,

overwhelming evidence corroborates the testimony in support of the conviction on Count Two.

        3. Count Four

        In stark contrast to the other counts, the narcoterrorism charge relied exclusively on

Qari’s testimony. Qari testified that defendant made a series of payments through his son, Sacha

Gul, to multiple terrorists associated with the Taliban, including Maftoon, Commander Khona,

and Maulawi Kabir. The government does not dispute that virtually no other evidence

corroborates the key elements of Qari’s testimony. To convict defendant of Count Four, the jury

would have had to believe Qari’s statements about these payments. See Cuffie, 80 F.3d at 518

(evidence impeaching a witness’s credibility was material to drug-related conviction because the


                                                 22
witness’s testimony “established the only direct connection between [defendant] and the drugs”)

(emphasis added).

       Moreover, the fact that the DOJ National Security Division dropped separate criminal

charges that relied on Qari’s testimony after discovering the Brady evidence only buttresses the

Court’s conviction that Qari’s contribution was material to the verdict. A materiality inquiry

warrants consideration not only of the defense’s plausible use of evidence, but also how the

government may have responded to the disclosure. See United States v. Gale, 326 F.3d 228, 229

(D.C. Cir. 2003) (considering a hypothetical trial where the government is forced to disclose

impeachment evidence and makes the strategic adjustment of using a less vulnerable witness);

United States v. Jones, 84 F. Supp.2d 124, 126 (D.D.C. 1999) (evidence impeaching a

detective’s credibility “would have kept [him] from taking the stand at all” because the detective

“would not have been a witness if government counsel knew that over the years [he] lied”). In

this case, there is no indication that the government had a different witness to substitute for Qari.

In view of the government’s decision not to bring charges in another recent case and the fact that

it relied exclusively on Qari’s testimony for the narcoterrorism count, it’s entirely plausible that

the government would have simply dropped Count Four from the indictment.

       Finally, as defendant points out, there is some indication that the jury was already unsure

of Qari. The crime on which defendant was acquitted (Count Three, charging a May 21, 2008

heroin sale) related to a DEA operation run by Captain Yaseen, Qari, and Mukhabir, where they

allegedly sold 4 kilograms. Since Captain Yaseen and Qari were the only participants in the

alleged sale to testify to its occurrence, the jury may well have been unconvinced by Qari’s

testimony at trial. If so, the suppressed evidence that the government failed to follow up on

another agency’s adverse credibility determination of Qari could have easily changed the


                                                 23
outcome on this count. Yet, even if the jury had been comfortable with Qari, once defense

counsel had enjoyed a full opportunity to paint the investigation as naively uncritical of the

information provided by Qari to the DEA (particularly the information relating to Maftoon),

there would simply be no evidence to support Count Four “remaining unscathed.” Kyles, 514

U.S. at 451.

       It is certainly possible that the jury would have still convicted defendant of the

narcoterrorism charge, but all that the law requires is a reasonable probability that, had the

credibility evidence been disclosed to defendant, he would not have been convicted. See Bowie,

198 F.3d at 908 (citing Kyles, 514 U.S. at 434). Defendant has satisfied that burden with respect

to Count Four. The Court therefore concludes that, because Qari’s testimony was indispensable

to the narcoterrorism charge and uncorroborated, the government’s Brady violation undermines

confidence in defendant’s conviction on Count Four. To the extent the other two convictions

relied on any of Qari’s testimony, that testimony was corroborated by a wealth of evidence that

had nothing to do with the DEA’s careless vetting of Qari. There is therefore no reason to think

that the outcomes as to Counts One and Two would have been different.

                                         CONCLUSION

       For the foregoing reasons, defendant’s Motion for a New Trial is granted in part and

denied in part, and defendant’s conviction in violation of 21 U.S.C §§ 960(a), 841(a) and

841(b)(1)(A) is vacated. A separate Order accompanies this Memorandum Opinion.


                                                      /s/ Ellen Segal Huvelle
                                                      ELLEN SEGAL HUVELLE
                                                      United States District Judge

Date: December 17, 2015



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