85 F.3d 646
318 U.S.App.D.C. 80
UNITED STATES of America, Appellee,v.David W. SMITH, Appellant.
Nos. 92-3220, 95-3100.
United States Court of Appeals,District of Columbia Circuit.
Argued Feb. 2, 1996.Decided May 31, 1996.

Appeals from the United States District Court for the District of Columbia (No. 91cr00527-04).
A.J. Kramer, Federal Public Defender and Neil H. Jaffee, Washington, DC, Assistant Federal Public Defender, were on the brief for appellant.
Eric H. Holder, Jr., United States Attorney, John R. Fisher and Elizabeth Trosman, Washington, DC, Assistant United States Attorneys, were on the brief for appellee.
Before:  EDWARDS, Chief Judge, WALD and SILBERMAN, Circuit Judges.
Opinion for the Court filed PER CURIAM.

PER CURIAM:

1
Contrary to the Government's suggestion, the panel's opinion in United States v. Smith, 77 F.3d 511 (D.C.Cir.1996), does not hold that a court may not consider the weight of the untainted evidence presented at trial when performing a materiality analysis pursuant to United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) and Kyles v. Whitley, --- U.S. ----, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).  Rather, the court did no more than determine that the Brady violation at issue here created "a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different."  Kyles, --- U.S. at ----, 115 S.Ct. at 1565 (quoting Bagley, 473 U.S. at 682, 105 S.Ct. at 3383.  (Opinion of Blackmun, J.)).  In other words, because the members of the panel could not say that, absent the undisclosed evidence, defendant "received a fair trial, understood as a trial resulting in a verdict worthy of confidence," id. at ----, 115 S.Ct. at 1566, the matter was reversed and remanded for a new trial.


2
In short, there is nothing in the panel opinion that intends to foreclose the court from considering the overall strength of the Government's case in making decisions on materiality.  The panel's analysis follows directly from the applicable Supreme Court precedent, and there is no issue justifying rehearing.  Therefore, the Government's petition for rehearing is


3
Denied.

