185 F.3d 887 (D.C. Cir. 1999)
In re Sealed Case No. 99-3096(Brady Obligations)
No. 99-3096
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 1, 1998Decided July 21, 1999

Appeal from the United States District Court for the District of Columbia
Evelina J. Norwinski, Assistant Federal Public Defender,  argued the cause for appellant.  With her on the briefs was  A.J. Kramer, Federal Public Defender.  Reita P. Pendry,  Chief Assistant Federal Public Defender, entered an appearance.
Chrisellen R. Kolb, Assistant U.S. Attorney, argued the  cause for appellee.  With her on the brief were Wilma A.  Lewis, U.S. Attorney, and John R. Fisher, Assistant U.S.  Attorney.
Before:  Edwards, Chief Judge, Henderson and Garland,  Circuit Judges.
Opinion for the Court filed by Circuit Judge Garland.
Garland, Circuit Judge:


1
The defendant in this criminal  case contends that the government improperly denied his  repeated requests for information to which he was entitled  under Brady v. Maryland, 373 U.S. 83 (1963).  The government responds that because the information, if it exists, would  relate to the impeachment of a defense witness, it falls  outside the obligations imposed by Brady.  Defendant replies  that impeachment information always comes within the ambit  of Brady, regardless whether the witness testifies for the  defense or the prosecution.


2
We need not accept either of these broad claims to resolve  this case.  The information defendant seeks would not merely  be impeaching in the sense that it would weaken the credibility of his own witness.  Rather, it would be exculpatory in the  sense that it would be affirmatively favorable to his assertion  of innocence.  Accordingly, such information comes within the  scope of the government's Brady obligations.  Because the  government concedes that it has not searched to determine  whether the requested information exists, we grant the defendant's request that the case be remanded to the district court. The government must first search to determine whether the  information sought by defendant exists and, if it does, the  district court must then determine whether that information  is "material" within the meaning of Brady and its progeny.


3
* In September 1996, an officer of the District of Columbia's  Metropolitan Police Department (MPD) applied for a warrant  to search the home of John Doe1 for a handgun and ammunition.  The officer submitted an affidavit stating that an  unidentified informant had observed the gun and ammunition  there within the last 48 hours.  The affidavit continued:  "The source that provided this information has ... given information which has led to the arrests of several subjects for  narcotics violations, the recovery of one assault weapon, the  arrests of subjects wanted on warrants and the issuance of  two search warrants."  Def. App. 11.  A judge of the Superior Court of the District of Columbia granted the application.


4
The police executed the warrant the following morning. The officers found one semi-automatic handgun under the  mattress in Doe's basement bedroom, and a second gun,  along with ammunition, in a shoe box under the basement  stairwell.  Doe was arrested and questioned.  He denied the  guns were his, and denied knowing that they were in the  house.  He said he had seen one of the guns in the possession  of a friend, Thomas Jones, a couple of days earlier.  Def.  App., Tab A at 51.  Doe's girlfriend later testified that Doe  and Jones had picked her up at the hospital the day before  the search, and that after returning to Doe's house, Jones had  spent some time in the basement alone.  Id., Tab D at 29-30.


5
Doe was charged with unlawful possession of a firearm and  ammunition by a convicted felon, in violation of 18 U.S.C.  § 922(g).  In a pretrial motion filed in October 1996, Doe  sought disclosure of the identity of the government's informant.  Pursuant to Brady, he also sought production of  information concerning, inter alia:  (1) "the amount of money  ... paid to the source," and whether it was "paid in exchange  for information or otherwise";  (2) "other consideration provided to the source, including ... assistance in avoiding or  minimizing harm from pending or threatened charges";  (3)  "all benefits, promises of benefits, or statements that the  source would not benefit absent cooperation ... in connection  with this case";  (4) "the nature of assistance that the source  has provided in the past";  and (5) "the source's prior record,  pending cases, and parole and probation status."  Def. App.  21.  The court denied the request, ruling that defendant had  not met the burden for piercing the government's informant  privilege set forth in Roviaro v. United States, 353 U.S. 53  (1957), because "it is basically a position of speculation as to how the informer in this case might be helpful to the defendant ... as [the case] stands before the Court now...."Def. App., Tab A at 83.


6
Shortly before Doe's trial was scheduled to begin, Thomas  Jones called Doe's attorney, told her that he had helpful  information, and asked to meet with her.  In January 1997,  the attorney, her investigator, and Jones met in a restaurant  parking lot.  According to the investigator's file memorandum, Jones told them that he was the government informant  in Doe's case and that "he wanted to clear his conscience."Def. App. 29.  He said that "he had a big gun and drug case  in [District of Columbia] Superior Court and he had to work  it off," and identified three detectives with whom he was  cooperating.  Jones said the guns found in Doe's apartment  were his (Jones').  He said that the day before the execution  of the search warrant, he and Doe had gone to pick up Doe's  girlfriend at the hospital.  When they returned to the house,  Jones continued, he "hid the guns, one under the mattress  and one in a box under the stairs."  He did not tell Doe he  was hiding the guns, and Doe did not know what he had done.Jones assured Doe's attorney that he would testify at Doe's  trial.  At the same time, he asked for assistance with his own  legal problems:  there was an outstanding bench warrant for  his arrest, and Jones feared that the police would incarcerate  him at the District of Columbia's correctional facility at  Lorton, Virginia.  "I can't go back to Lorton," he said,  "because I snitched on so many people."  Id.


7
Doe's trial began a week later.  In her opening statement,  Doe's attorney told the jury the evidence would show that  Doe was innocent, and that Jones had planted the guns and  ammunition in the house without Doe's knowledge.  Def.  App., Tab C at 12.  Thereafter, Doe's attorney learned from  the attorney in Jones' Superior Court case that Jones intended to invoke his Fifth Amendment privilege against self incrimination and would refuse to testify at Doe's trial.  The  next morning, Doe's attorney advised the court that, in order  to get Jones' prior statements before the jury, she planned to  introduce them through the testimony of her investigator as statements against Jones' penal interest, see Fed. R. Evid.  804(b)(3).  Def. App., Tab D at 3-4.


8
At this point, the prosecutor questioned whether Jones  really did have a Fifth Amendment privilege.  After the court  appointed a lawyer to advise Jones, Jones formally asserted  his right not to testify.  The prosecutor then asked "to speak  with [Jones' lawyer] over the luncheon recess to see if we can  reach some sort of accommodation ... which would permit  him [Jones] to testify."  Id. at 68.  Doe's counsel then made a  Brady request for Jones' "agreements with the government"  in what she understood to be his "sealed" cases in Superior  Court.  Id.  The prosecutor protested that "I don't have  access to that information readily.  I would have to go back  to my office and try to pull out the old files and everything  else."  Id.  The district court denied Doe's request as "premature," indicating that it did not want to decide the issue  until it was determined that Jones would testify.  Id. at 6869.


9
After the luncheon recess, Jones agreed to testify and the  government advised the court that it had agreed to make  arrangements for his safety.  Suspecting that Jones had  become an adverse witness during the break, defense counsel  again requested production of Jones' "prior agreements with  the government" and "sealed" case records.  The court again  put off decision, this time indicating it would not consider the  issue until after Jones testified.  Def. App., Tab E at 11.


10
Jones was then called to the witness stand by Doe's counsel.  Although he denied that he had told her the names of  police officers with whom he was cooperating or that he was  "working off" a conviction in Superior Court, id. at 22, 27,  Jones admitted that he had told her he was the confidential  informant in Doe's case, id. at 19.  He also admitted to  confessing that, while he was alone in the basement, he had  planted the guns under the mattress and stairwell without  Doe's knowledge.  Id. at 19-21.


11
On cross-examination by the prosecutor, Jones' story  changed dramatically.  He testified that his pre-trial statements to Doe's counsel were lies.  The guns, Jones said, were  Doe's.  The day before the search, Doe had taken them out  from underneath the mattress and stairwell to show to him. Id. at 33-38.  Jones had lied about planting the weapons, he  said, because "some dudes" had "threatened, if I didn't call  his lawyer, and tell the guns was mine some bodily harm  would be done to me."  Id. at 27-28.  After hearing Jones'  testimony, defense counsel asked the court to declare him a  hostile witness and to permit her to cross-examine him.  See  Fed. R. Evid. 611(c).  The court agreed.  Def. App., Tab E at  39.


12
At the same time, however, the court rejected defendant's  renewed request for "information regarding [Jones'] sealed  cases" and "agreements he's made with the government  regarding those cases."  Id.  The court denied the request  regarding the sealed cases saying, "I'm not going to at this  late juncture make any effort to get those sealed records  from the Superior Court."  Besides, the court said, any  agreements reflected in the records of those cases "don't have  anything to do with this case anyway."  Id. at 42.


13
Persistently, but tactfully, defense counsel asked that the  court at least direct the government to turn over its own  agreements with Jones, noting "[t]hat doesn't require anything from Superior Court."  Id.  The prosecutor replied that  there was no agreement in the instant case, but made no  representation about agreements in other cases.2  She did state, however, that "I think there may be some records that  the police might have [although] I certainly don't have anything right now."  More important, she continued, "I don't  think the government has an obligation to produce them to  the defense in connection with a defense witness."  Id.  The  court agreed, ruling that the government was not required to  produce records "in regard to a defense witness."  Id. at 43.The court advised defense counsel that she was free, however,  to question Jones about any agreements he might have.  Id.


14
Doe's counsel proceeded to do so, but Jones denied being a  "snitch," id. at 50, said "I haven't told on anybody," id. at 53,  and denied having "an agreement with the government," id.  at 57-58.  Doe's counsel did not impeach Jones or otherwise  offer affirmative evidence of prior agreements or government  cooperation.  The jury convicted Doe of the offenses charged  in the indictment, and the court sentenced him to 92 months  in prison.

II

15
In Brady v. Maryland, the Supreme Court held that the  Due Process Clause imposes upon the prosecution an obligation to disclose "evidence favorable to the accused ...  where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the  prosecution."  373 U.S. at 87;  see Pennsylvania v. Ritchie, 480 U.S. 39, 57 (1987).  In Giglio v. United States and United  States v. Bagley, the Court held that "impeachment evidence  ... as well as exculpatory evidence, falls within the Brady  rule."  United States v. Bagley, 473 U.S. 667, 676 (1985)  (quoting Giglio v. United States, 405 U.S. 150, 154 (1972)). And in Kyles v. Whitley, the Court held that the rule includes  evidence "known only to police investigators and not to the  prosecutor."  514 U.S. 419, 438 (1995).  Hence, to comply  with Brady, "the individual prosecutor has a duty to learn of  any favorable evidence known to others acting on the government's behalf in the case, including the police."  Id. at 437.


16
As the Supreme Court recently noted in Strickler v.  Greene, courts have used the term "Brady violation" to cover  a multitude of prosecutorial sins involving breach of "the  broad obligation to disclose exculpatory evidence," often  called "Brady material."  119 S. Ct. 1936, 1948 (1999).  These  include both the failure to search for Brady material and the  failure to produce it.  "[S]trictly speaking," however, "there is  never a real 'Brady violation' unless the non-disclosure was so  serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict."Id.  As the Court explained, a "true Brady violation" has  three components:  "The evidence at issue must be favorable  to the accused, either because it is exculpatory, or because it  is impeaching;  that evidence must have been suppressed by  the State, either willfully or inadvertently;  and prejudice  must have ensued."  Id.  To satisfy the prejudice component,  the withheld evidence must be "material";  that is, there must  be "a reasonable probability that, had the evidence been  disclosed to the defense, the result of the proceeding would  have been different."  Id. (quoting Bagley, 473 U.S. at 676);see also Kyles, 514 U.S. at 433-34.  If the undisclosed evidence is material, a new trial is required.  Kyles, 514 U.S. at  421-22.


17
It appears from the parties' briefs that, contrary to Doe's  original understanding, the records of Jones' Superior Court  cases3 were not sealed.  Gov't Br. at 36 n.21;  Oral Arg. Tr.  14-15.  Hence, Doe's request for access to those records is  effectively moot.  His request for the disclosure of agreements between Jones and the government, however, remains very much alive.  The government's appellate brief advises us  that Jones did "provid[e] information to the police as a paid  special employee," Gov't Br. at 34 n.17, and its appendix  discloses that Jones was required, as a condition of probation  in one of his Superior Court cases, to cooperate with the  police, see Gov't App., Tab C, at 3-4.  At oral argument, the  government also advised that "in candor with the court, it  might involve the FBI, it might involve the DEA and other  law enforcement agencies" as well.  Oral Arg. Tr. at 29.


18
We therefore proceed to examine the arguments asserted  by the government in support of its contention that, even if  cooperation agreements exist, it has no Brady obligation to  produce them.  We conduct this examination de novo, since  whether the government has breached its obligations under  Brady is a question of law.  United States v. Cuffie, 80 F.3d  514, 517 (D.C. Cir. 1996);  United States v. Lloyd, 71 F.3d 408,  411 (D.C. Cir. 1995).


19
* At trial, the prosecutor argued and the court agreed that  Brady did not apply because Jones was a defense witness. In response, the defendant points out that the Supreme  Court's description of the government's Brady obligations  encompasses evidence that can be used to impeach the credibility of a witness, and does not on its face distinguish  between impeachment of a prosecution witness and impeachment of a witness for the defense.4  The government replies  that the Court's references to impeachment in Bagley and  Giglio involved prosecution witnesses (the same was true in  Strickler), and that Brady and its progeny therefore do not  require disclosure of impeachment evidence concerning a  defense witness.  "The Due Process Clause," the government  notes, "does not provide 'a general constitutional right to  discovery in a criminal case, and Brady did not create one.' "  Gov't Br. at 17 (quoting Weatherford v. Bursey, 429 U.S. 545, 559 (1977)).  To require disclosure of potential impeachment  regarding defense witnesses, the government argues, would  effectively "displace the adversary system as the primary  means by which the truth is uncovered"--a result not intended by Brady.  See Bagley, 473 U.S. at 675;  see also United  States v. Agurs, 427 U.S. 97, 109, 112 n.20 (1976).


20
In the usual case there is a conceptual difference between  the impeachment of a government witness and the impeachment of a defense witness.  Evidence that impeaches the  former is almost invariably "favorable" to the accused, because by making the government's case less credible it enhances the defendant's chances of acquittal.  Evidence that  impeaches a defense witness, by contrast, is not generally  favorable to the accused;  by reducing the credibility of the  defendant's own witness, such impeachment reduces the probability that he will obtain a not guilty verdict.  It is ordinarily  the prosecutor rather than defense counsel who wants to use  the latter kind of evidence--although she may prefer to delay  its use (and disclosure) until after the witness testifies, both  to prevent tailoring of the testimony in expectation of the  cross-examination and to employ the element of surprise to  expose the witness' mendacity.


21
But Doe's is not the usual case involving impeachment of a  defense witness.  First, although it is true that defense  counsel's original plan was to put Jones on the stand as her  own witness (either directly or through the testimony of the  investigator), had things gone as planned she would have had  no reason to impeach Jones' credibility.  It was only after  Jones "flipped" and started testifying against Doe that defense counsel wanted to impeach him, hoping that evidence of  a cooperation agreement would help her do so by showing  that Jones lied when he said he had never "snitched" on  anyone.  Hence, even if we were to accept the proposition  that only the impeachment of a government witness falls  within Brady, by the time Jones flipped he had effectively  become a government witness--as the court recognized by  declaring him hostile.  See Kyles, 514 U.S. at 445-46 (ordering new trial where defense could have called informant as adverse witness and effectively used undisclosed evidence as  impeachment).


22
Second, and more important, the underlying reason Doe  sought information about Jones' relationship with the government was not to impeach Jones' statement, but to use it as  affirmative evidence of Doe's own innocence.  Indeed, if all  had gone as planned, Doe would not have used evidence of a  cooperation agreement to impeach Jones' statement that he  planted the guns, but rather to corroborate it by exposing his  motive for doing so.  With the testimony of Doe's girlfriend  that Jones had been alone in the basement, Doe had corroboration of Jones' opportunity to plant the weapons.  What he  needed was evidence of motive, and any of several kinds of  cooperation agreements might have provided it.  See Bagley,  473 U.S. at 683 (stating that where "the possibility of a  reward had been held out" to witnesses for providing useful  information, "[t]his possibility ... gave [the witnesses] a  direct, personal stake in respondent's conviction").5  For example, if there were an agreement that the prosecution would  seek the reduction of Jones' Superior Court sentences if he  provided "substantial assistance in investigating or prosecuting another person," see Fed. R. Crim. P. 35(b), that agreement might have given him a motive to plant the guns.Similarly, if cooperation with the police were a condition of  Jones' continued probation on his Superior Court convictions,  that might have provided an incentive.  And Jones might also  have had a motive if the police had agreed to pay him in  return for information leading to successful arrests.6  As  noted above, there is evidence in the record that at least the latter two kinds of agreements may exist.  See Gov't App.,  Tab C at 3-4 (Superior Court hearing transcript indicating  cooperation with police was condition of Jones' probation);Gov't Br. at 34 n.17 (noting that Jones "provided information  to the police as a paid special employee");  Oral Arg. Tr. at 29  (noting that Jones may also have had arrangements with the  FBI and DEA).  By providing evidence of motive, such  agreements would have been relevant to Doe's defense independent of any impeachment value they might also have had  once Jones turned on him.


23
Finally, as the government conceded at oral argument, in  the circumstances of this case an agreement that gave Jones  a motive to plant the guns would be Brady material even if  Jones never appeared as a witness for either side.  Oral Arg.  Tr. at 21, 27;  see Kyles, 514 U.S. at 446; United States v.  Lloyd, 992 F.2d 348, 351 (D.C. Cir. 1993).  Indeed, in that  respect this case is similar to Kyles, where the Supreme  Court found that the prosecution violated Brady by failing to  disclose evidence that an informant who never testified might  have planted the murder weapon in defendant's apartment,  514 U.S. at 453, including evidence of the informant's motive.See id. at 429 (noting defense theory that informant planted  gun for purposes of "removing an impediment to romance  with [Kyles' common-law wife] ... and obtaining reward  money" from police).  That kind of evidence is exculpatory in  the purest sense, and its relevance does not depend on who  sponsors its admission.  Indeed, once Doe's girlfriend testified that Jones had been alone in the basement, evidence of  an agreement giving Jones a motive to plant the guns would  have been admissible (assuming authentication) even if Jones  had never entered the courtroom.  Accordingly, the fact that Jones was originally proffered as a defense witness has no  consequence for the scope of the government's Brady obligations here.

B

24
The potpourri of other objections to disclosure argued by  the trial prosecutor and sustained by the trial court are also  unpersuasive.  The court's original rejection of the defendant's pretrial Brady motion correctly rested on the ground  that, as matters then stood, the informant's identity was  confidential and "how the informer in this case might be  helpful to the defendant" was speculative.  Def. App., Tab A  at 83.  See United States v. Mangum, 100 F.3d 164, 172 (D.C.  Cir. 1996) (upholding non-disclosure of confidential informant's  identity where defendant's assertion that informant planted  gun in knapsack was "purely speculative" and there was no  evidence informant had access to knapsack);  United States v.  Warren, 42 F.3d 647, 654 (D.C. Cir. 1994) ("Speculation as to  the information the informant may provide is insufficient.").By the time the case went to trial, however, those factors no  longer applied.  Jones had voluntarily revealed himself to  defense counsel, and had told her he planted the evidence in  Doe's basement.  He had also told her that he was cooperating with the police in order to work off the gun and drug case  he had in Superior Court.  This, together with the statement  in the affidavit for the search warrant that the informant had  previously "given information which has led to the arrests of  several subjects," Def. App. 11, moved the possibility that a  materially relevant cooperation agreement existed far beyond  the realm of speculation.  See generally Roviaro, 353 U.S. at  60-65.


25
Nor is there any basis for the rulings that production of the  requested information was "premature," first until it was  clear Jones would testify, and then until after Jones actually  did testify.  Contrary to the prosecution's contention, the  information did not become relevant only after Jones changed  his story, giving the defense reason to impeach him.  As  noted above, evidence of Jones' motive was relevant independent of when or whether he testified.  Similarly, we reject the government's suggestion that ordering a Brady search before  Jones testified would somehow have been inconsistent with  our admonitions in United States v. Marshall (made with  reference to Fed. R. Crim. P. 16), that "[t]o give rise to a  disclosure obligation, the evidence's materiality must, of  course, be evident to a reasonable prosecutor," and that the  "prosecutor need not guess that evidence may become material as a consequence of a defendant's not-yet-revealed strategic decisions."  132 F.3d. 63, 69 n.2 (D.C. Cir. 1998).  At least  from the moment defense counsel made the claim in her  opening statement that Jones planted the guns, it was clear  that any motive Jones might have had to do so was relevant  to the case.  No clairvoyance on the part of the prosecutor  was required.


26
We also reject the government's Catch-22 rationale that  once Jones did testify, it was by then too late to compel  production of the information, since doing so would have  required a continuance to gather the materials.  The government protests that "in the midst of the trial" it should not  have been required to "scamper" about searching for the  requested evidence.  Gov't Br. at 32.  But that problem could  have been avoided had the government gathered the material  earlier.  In light of the defendant's opening statement, it was  no excuse the next morning that the prosecutor did not "have  access to that information readily" and "would have to go  back to my office and try to pull out old files and everything  else."  Def. App., Tab D at 68.  The same was true that  afternoon, when she said, "I think there may be some records  that the police might have [but] I certainly don't have anything right now."  Id., Tab E at 42.  And we do not understand the basis for the government's argument that "appellant cannot credibly complain because he failed to assert a  timely demand for this impeachment material."  Gov't Br. at  40.  To the contrary, defendant made his demands known  early, often, insistently, and with specificity--only to be met  with the government's claims that they were first premature,  and then too late.  If by the time Jones testified the government still needed to "scamper" to collect the requested Brady  material, it had no one to blame but itself.7


27
We find equally unfounded the argument that any agreements Jones may have had in his Superior Court cases "don't  have anything to do with this case."  Def. App., Tab E at 42.Defendant's whole point was that Jones may have planted the  gun in this case in order to "work off" obligations that arose  in those Superior Court cases.  Hence, agreements in the  other cases have everything to do with this case.  Nor does it  matter that agreements in other cases may have involved  other prosecutors.  The United States Attorney's Office for  the District of Columbia prosecutes cases in both the federal  District Court and the local Superior Court, and the prosecutor is responsible (at a minimum) for all Brady information in  the possession of that office.  See Giglio, 405 U.S. at 154  (holding that ignorance by one prosecutor of promise made by  another is irrelevant since "[t]he prosecutor's office is an  entity and ... [a] promise made by one attorney must be  attributed, for these purposes, to the Government").


28
For a similar reason, we reject as irrelevant the contention  that the requested records may have been in the possession  of the Metropolitan Police Department, or the FBI or DEA,  rather than the U.S. Attorney's Office.  As the Supreme  Court held in Kyles, "[t]he individual prosecutor has a duty to  learn of any favorable evidence known to the others acting on  the government's behalf in the case, including the police." 514  U.S. at 437.  Anticipating Kyles, we specifically held in  United States v. Brooks that prosecutors in this District are  responsible for disclosing Brady information contained in MPD files, "[g]iven the close working relationship between  the Washington metropolitan police and the U.S. Attorney for  the District of Columbia (who prosecutes both federal and  District crimes, in both the federal and Superior courts)."966 F.2d 1500, 1503 (D.C. Cir. 1992).  The same is true for  files of the FBI and DEA which, like the U.S. Attorney's  Office, are components of the U.S. Department of Justice. See id. (noting that Brady requires prosecutors to search FBI  records).

C

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


30
According to the U.S. Attorney, the first place the defendant should have turned for information about Jones' agreements was Jones himself.  Jones, the government points out,  voluntarily contacted defense counsel and "was, for a time,  cooperative with the defense."  Gov't Br. at 32.  "Since  defense counsel had an opportunity to probe [Jones'] relationship with the government ... during their January ...  conversation [in the restaurant parking lot], appellant cannot now use Brady as a vehicle to get answers to questions left  unasked at that time."  Id. at 33.  Again, we find this  argument surprising.  The government's position at trial was  that virtually everything Jones said to defense counsel at the  January meeting was a lie, a position the government maintains on appeal.  Oral Arg. Tr. at 26-27.  Surely information  obtained from a government-certified liar cannot substitute  for information obtained from the government itself--particularly not when the defense was seeking information from a  more trustworthy source in order to corroborate (or, as  became necessary, impeach) that individual.


31
Second, the government contends that if Doe wanted to  learn of Jones' agreements with the MPD, he should have  subpoenaed the involved officers themselves.  Gov't Br. at 33.This argument, too, is unpersuasive.  As we have noted  above, "the prosecutor is responsible for 'any favorable evidence known to the others acting on the government's behalf  in the case, including the police,' " Strickler, 119 S. Ct.  at  1945 n.12 (quoting Kyles, 514 U.S. at 437), and particularly  including the MPD, see Brooks, 966 F.2d at 1503.  Accordingly, defense counsel was no more required to subpoena the  officers to learn of their agreements, than she was to subpoena the prosecutor to learn of hers.  The appropriate way for  defense counsel to obtain such information was to make a  Brady request of the prosecutor, just as she did.  See United  States v. Iverson, 648 F.2d 737, 739 (D.C. Cir. 1981) (holding  that "the primary obligation for the disclosure of matters  which are essentially in the prosecutorial domain lies with the  government").  Indeed, at oral argument the government  agreed that had Jones been a government witness, it would  readily have produced his cooperation agreements without  insisting on a subpoena, Oral Arg. Tr. at 32-33, just as Giglio  and Bagley contemplate.  Since Jones' status as a defense  witness is irrelevant here, there is no reason to require any  other procedure.

D

32
Finally, the government argues that Doe was not prejudiced by any non-disclosure that may have occurred because Doe's attorney failed to impeach Jones with the information  she did have in her possession.  When Jones denied under  oath that he had ever informed on anyone else, Def. App.,  Tab E at 53 ("I haven't told on anybody"), counsel could have  contradicted him with the sworn affidavit attached to the  search warrant application, Def. App. 12 ("The source has  given information which has led to the arrests of several  subjects").  She might also have tried to use a representation  made by Jones' attorney at the bench almost immediately  after Jones made his denial.  Id., Tab E at 61 (advising the  court that there "was a stipulation of [Jones'] probation to  assist the police on the street").  Defense counsel did not  attempt to use either one.


33
There is no doubt that this argument is relevant to the  ultimate question of the materiality of the undisclosed evidence, that is, whether there was "a reasonable probability  that, had the evidence been disclosed to the defense, the  result of the proceeding would have been different."  Strickler, 119 S. Ct. at 1948 (quoting Bagley, 473 U.S. at 682).  But  an evaluation of the significance of the evidence that was  available to the defense cannot begin until the government  determines whether there was any evidence that was unavailable.  If the information the government finds about Jones'  agreements is the equivalent of that which the defense already had, then it may well not be material for Brady  purposes.  See Iverson, 648 F.2d at 738 ("[N]o violation of  due process results from prosecutorial non-disclosure if defense counsel both knows of the information and is able to  make use of it but still chooses, for tactical reasons, not to do  so.").


34
On the other hand, the evidence that was available to Doe  only indicated that Jones had cooperated with the government, and perhaps that he had an agreement to do so.  It did  not disclose, at least not explicitly, the terms of any such  agreement and whether they gave Jones a motive to plant the  guns in Doe's house.  The latter would not have been the  equivalent of what the defense already knew and, depending  on the other facts in the case, may or may not have been  material for Brady purposes.  See United States v. Smith, 77 F.3d 511, 512-13 (D.C. Cir. 1996) (holding that although  aspects of witness' plea agreement were known to defense,  undisclosed elements were material to defendant's ability to  impeach);  Cuffie, 80 F.3d at 517-18 ("[T]he fact that other  impeachment evidence was available to defense counsel does  not [necessarily] render additional impeachment evidence immaterial.") (internal quotations and citations omitted).  Needless to say, until we know whether such information exists, we  are unable to determine whether it would have been material. See Pennsylvania v. Ritchie, 480 U.S. at 57 ("At this stage, of  course, it is impossible to say whether any information in the  ... records may be relevant to [defendant's] claim of innocence, because neither the prosecution nor defense counsel  has seen the information....").

III

35
The government concedes that it never conducted a full-fledged Brady search with respect to any agreements its  various components may have had with Jones.  See Oral Arg.  Tr. at 23-24, 29-30, 38-39.  For the reasons stated above,  that failure constituted a breach of the government's "duty to  search" for Brady information.  Brooks, 996 F.2d at 1502-03.In their arguments before this court, both the government  and the defendant agreed that were we to find such a breach  of the obligation to search, the proper disposition would be to  remand this case to the district court, "to conduct a further  evidentiary hearing to resolve whether there exists any Brady information and whether such information was material."Gov't Br. at 18 n.11;  see Def. Br. at 20.


36
This is the course we have followed in other cases, see  Brooks, 966 F.2d at 1504-05;  United States v. Lloyd, 992  F.2d at 352, and the course we follow here as well.  "On  remand, the district court should require the U.S. Attorney's  [O]ffice to do what it should have done earlier," 966 F.2d at  1504, namely, to review information held by that office, as  well as the MPD and other relevant law enforcement agencies, to determine whether the government has or had any agreements with its informant of the kind discussed in this  opinion.  If the government finds that such agreements exist,  the district court must then determine whether there is "a  reasonable probability that, had the evidence been disclosed  to the defense, the result of the proceeding would have been  different."  Strickler, 119 S. Ct. at 1948 (quoting Bagley, 473  U.S. at 682).



Notes:


1
 Because this case remains under seal, the names of the defendant and the informant have been changed.


2
 In its brief before this court, the government states that it has  "no reason to believe that any agreement existed between the  United States Attorney's Office and Mr. [Jones] with respect to his  case in Superior Court."  Gov't Br. at 34 n.17 (citing, inter alia,  Gov't App., Tabs A-F).  We are confused by the government's  statement since its citations, recently prepared transcripts of some  of Jones' Superior Court appearances, appear to refer to such an  agreement.  See Gov't App., Tab C at 3 (statement by defense  counsel that "[Jones] has been cooperating with providing information";  reply by Assistant U.S. Attorney that "we will need to ensure  that the agreement is followed through");  id., Tab E at 3 (statement by court that at sentencing "[i]t was included in the representation by prosecution that the defendant was cooperating").  But see id., Tab F at 7 (statement by prosecutor that "I have no  information whether or not the defendant is cooperating").  It may  be that the government regards the cooperation agreement referred  to in these transcripts as one involving the police rather than the  U.S. Attorney's Office.  If that is the distinction the government is  drawing, it is of no moment to its obligations under Brady.  See  Kyles v. Whitley, 514 U.S. 419, 437 (1995);  United States v. Brooks,  966 F.2d 1500, 1503 (D.C. Cir. 1992).


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


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


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


6
 There is, of course, nothing inappropriate about such agreements.  See United States v. Ramsey, 165 F.3d 980, 988-90 (D.C.  Cir. 1999) (noting legitimacy and law enforcement value of "prosecutorial promise(s) of leniency in exchange for truthful testimony").  And we certainly do not suggest that any such agreement would, or  could, have authorized Jones to plant the guns.  Rather, the point is  simply that such an agreement may give a person a motive that the  jury must be permitted to evaluate.  See Van Arsdall, 475 U.S. at  679;  Bagley, 473 U.S. at 683;  Giglio, 405 U.S. at 154-55;  United  States v. Smith, 77 F.3d 511, 513 (D.C. Cir. 1996).


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


