                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA

____________________________
                               )
UNITED STATES OF AMERICA,      )
                               )
          v.                   )   Criminal Action No. 11-59 (RWR)
                               )
GREGORY SCOTT NELSON,          )
                               )
          Defendant.           )
____________________________   )

                   MEMORANDUM OPINION AND ORDER

     Petitioner Gregory Nelson moves under 28 U.S.C. § 2255 to

vacate, set aside, or correct his sentence, arguing that the

prosecution violated his due process rights by suppressing

evidence favorable to him, in violation of Brady v. Maryland, 373

U.S. 83 (1963).   The parties have briefed and argued the issues.

Because the government violated its duty to disclose all

exculpatory evidence and prejudiced Nelson, Nelson’s motion will

be granted.1

                            BACKGROUND

     On April 11, 2011, Nelson pled guilty to traveling from

Virginia to Washington, D.C. to engage in illicit sexual conduct,

in violation of 18 U.S.C. § 2423(b).     However, Nelson now argues

that his guilty plea was not knowing or voluntary because it was

entered without knowledge of exculpatory evidence that the

     1
       Nelson also argues that his counsel provided ineffective
assistance of counsel. Because Nelson’s motion will be granted
as to his Brady claim, his ineffective assistance of counsel
claim is not addressed, and the briefing schedule on that issue
will be suspended.
                                  -2-

government withheld.    Nelson alleges that he is a recovering

methamphetamine addict and that he traveled to Washington, D.C.

only to obtain methamphetamine.    Pet’r Gregory Nelson’s Mot. to

Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255

(“Pet’r Mot.”), Decl. of Gregory Nelson (“Nelson Decl.”) ¶ 11.

     On February 3, 2011, Nelson initiated a conversation with

“DCPed” on a social networking site.    Presentence Investigation

Report (“PSR”) ¶ 5; Pet’r Mot. at 13.    Unbeknownst to Nelson,

“DCPed” was Detective Timothy Palchak who was working undercover.

PSR ¶ 5, Pet’r Mot. at 13.    DCPed’s online profile contained

descriptions such as “twisted minded” and “taboo,” both of which

can describe a methamphetamine user.    See Pet’r Mot. at 13.

During their conversation, Nelson asked Detective Palchak: “U

looking for today?    u party?”   Id., Ex. 11 (E-mail from Julieanne

Himelstein, Assistant U.S. Attorney, to Barry Boss (Feb. 8, 2011,

2:33 p.m.) at 4).    Detective Palchak understood “party” to mean

that Nelson was asking whether Detective Palchak used

methamphetamine.    Prelim. Hr’g, 2/9/11 Tr. 41:23-42:3.   Detective

Palchak responded:    “yes, at work at moment have a perv boi . . .

meeting me at my place areound [sic] 6 or 7.    . . .   He is 12 so

if that is to [sic] young i totally understand.”    Pet’r Mot., Ex.

11 at 4.   Nelson responded: “ALL VERY HOT.”   Id. at 4(a).

     Nelson and Detective Palchak continued to chat throughout

the day about the two of them and the boy engaging in sexual
                                  -3-

conduct and made plans to meet later that day at a restaurant

that was allegedly near Detective Palchak’s apartment.      Pet’r

Mot., Ex. 13 at 8.   While making plans, Nelson asked Detective

Palchak if he was “partying tonight.”     Id. at 9.   At 1:44 p.m.,

Detective Palchak responded: “looking to but cant [sic] get my T

till tomorrow dont [sic] have much at all left.”      Id. at 4.    “T”

is an abbreviation for “Tina,” Nelson Decl. ¶ 11, which is slang

for methamphetamine, Avi Brisman, Meth Chic and the Tyranny of

the Immediate: Reflections on the Culture-Drug/Drug-Crime

Relationships, 82 N.D. L. Rev. 1273, 1275 (2006).      Nelson

concedes that he opened and read that 1:44 p.m. message.

     That evening, Nelson traveled from Virginia to Washington,

D.C. to meet Detective Palchak.    Nelson was arrested shortly

after he arrived at the restaurant.     PSR ¶ 8.

     On February 4, 2011, Nelson was charged with using

facilities of interstate commerce to entice a minor to engage in

sexual activity, in violation of 18 U.S.C. § 2422(b), and

appeared before a magistrate judge for an initial hearing.        At

the hearing, the government produced a discovery packet to

defense counsel that purported to include all of the electronic

communications that Detective Palchak had with Nelson.      Pet’r

Mot. at 21; id., Ex. 12 (2/4 Discovery Packet).       On February 8,

2011, the prosecution sent defense counsel a revised discovery

packet.   The government concedes that its discovery productions
                                -4-

were intended to convey that copies of all e-mails between

Detective Palchak and Nelson were disclosed.    At a preliminary

hearing, Detective Palchak testified that the February 8, 2011

discovery packet was a “fair and accurate depiction of the

recorded e-mail chat that [he] had with the Defendant.”    Prelim.

Hr’g, 2/9/11 Tr. 11:20-24; Pet’r Mot. at 23.    Detective Palchak

also asserted that he and Nelson had not directly had “any

discussion about meeting to actually ingest meth.”    Prelim. Hr’g,

2/9/11 Tr. 42:5-7.   Despite the government’s representations that

the discovery packets contained all recorded electronic

communications between Detective Palchak and Nelson, the

government concedes that neither the February 4, 2011 nor the

February 8, 2011 discovery packets included a copy of the 1:44

p.m. e-mail from Detective Palchak to Nelson.

     Later, the government filed a one-count information against

Nelson charging him with traveling in interstate commerce to

engage in illicit sexual conduct, in violation of 18 U.S.C.

§ 2423(b).   Nelson pled guilty to the information and was

sentenced to a 25-month term of imprisonment followed by 84

months of supervised release.

     Nelson now moves under 28 U.S.C. § 2255 to have his

conviction vacated and to withdraw his guilty plea, arguing that

the government’s failure to disclose the 1:44 p.m. e-mail

violated its duty to disclose all exculpatory evidence under
                                -5-

Brady.   He contends that his guilty plea was not knowing and

voluntary because it was entered without knowledge that the

government failed to disclose in discovery exculpatory evidence.

Nelson further contends that had his “counsel been provided with

the exculpatory evidence, [he] would not have pleaded guilty and

would have exercised his constitutional right to trial.”   Pet’r

Mot. at 2.

                            DISCUSSION

     Under 28 U.S.C. § 2255, a federal defendant may “move the

court which imposed [his] sentence to vacate, set aside or

correct the sentence” on the grounds that “the sentence was

imposed in violation of the Constitution or laws of the United

States, or that the court was without jurisdiction to impose such

sentence, or that the sentence was in excess of the maximum

authorized by law, or is otherwise subject to collateral attack.”

28 U.S.C. § 2255.   “The petitioner bears the burden of proving

the violation by a preponderance of the evidence.”   United States

v. Basu, 881 F. Supp. 2d 1, 4 (D.D.C. 2012) (citing United States

v. Pollard, 602 F. Supp. 2d 165, 168 (D.D.C. 2009)).

     Unless the motion and the files and records of the case
     conclusively show that the prisoner is entitled to no
     relief, the court shall cause notice thereof to be
                                -6-

     served upon the United States attorney, grant a prompt
     hearing thereon, determine the issues and make findings
     of fact and conclusions of law with respect thereto.

28 U.S.C. § 2255(b).2

     Generally, a defendant who has pled guilty cannot later

raise “independent claims relating to the deprivation of

constitutional rights that occurred prior to the entry of the

guilty plea.”   Tollett v. Henderson, 411 U.S. 258, 267 (1973);

see also United States v. Koumbairia, 501 F. App’x 1, 3 (D.C.

Cir. 2013).   Instead, defendants who have pled guilty can “only

attack the voluntary and intelligent character of the guilty

plea.”   Tollett, 411 U.S. at 267.

I.   USING BRADY CLAIM TO COLLATERALLY ATTACK GUILTY PLEA

     Nelson contends that his guilty plea was not knowing and

voluntary because he entered it not knowing that the government

had failed to disclose exculpatory evidence.   Citing United

States v. Ruiz, 536 U.S. 622 (2002), the government contends that

it is unclear whether a defendant who makes out a Brady violation

may withdraw his guilty plea.

     The government argues that Ruiz militates against a finding

that the prosecution is required to disclose exculpatory evidence

at the plea stage.   However, Ruiz does not compel this

conclusion.   In Ruiz, the government’s proposed plea offer


     2
       Because the record in this case did not conclusively show
that Nelson is entitled to no relief, a hearing was held on
October 10, 2013.
                                    -7-

specified that it would turn over to the defendant any known

information establishing the factual innocence of the defendant

and acknowledged its continuing duty to provide such information,

but required the defendant to waive her right to receive

impeachment information about witnesses.       Ruiz, 536 U.S. at 631,

633.       The Supreme Court held that “the Constitution does not

require the Government to disclose material impeachment evidence

prior to entering a plea agreement with a criminal defendant.”

Id. at 633 (emphasis added).       But the Court found that providing

information establishing the defendant’s factual innocence helped

allay concerns about the absence of merely impeachment

information.3      Id. at 631.

       The Ruiz Court found that “due process considerations,”

including “the value of the additional safeguard,” “argue against

the existence of the ‘right’” to receive undisclosed Brady

impeachment evidence at the plea stage.       See id.   Specifically,

the Court found that the added value of requiring the government

to disclose impeachment evidence at the guilty plea stage was

       3
      The Court was unwilling to characterize the impeachment
material as “critical information of which the defendant must
always be aware prior to pleading guilty” because “[t]he degree
of help that impeachment information can provide will depend upon
the defendant’s own independent knowledge of the prosecution’s
potential case -- a matter that the Constitution does not require
prosecutors to disclose.” Id. Exculpatory evidence, on the
other hand, derives its value independent of the defendant’s
knowledge of the prosecution’s potential case. Evidence tending
to show that a defendant is not guilty undermines proof of the
essential elements of the crime, regardless of what the defendant
knows of the prosecution’s case.
                                    -8-

limited, in part, because the plea agreement in that case

contained as a “guilty-plea safeguard[]” that the “Government

[would] provide ‘any information establishing the factual

innocence of the defendant.’”      Id.    The Court noted that “[t]hat

fact . . . diminishes the force of [the petitioner’s] concern

that, in the absence of impeachment information, innocent

individuals, accused of crimes, will plead guilty.”       Id.   Thus,

Ruiz drew a significant distinction between impeachment and

exculpatory evidence and did not decide whether a defendant is

entitled to exculpatory evidence at the guilty plea stage.4

     While neither the D.C. Circuit nor the Supreme Court has

spoken on whether a defendant can withdraw his guilty plea post-

sentencing if he entered it without the government having

disclosed exculpatory evidence it possessed, the majority of

circuits to have considered the issue have held that a Brady

violation can justify allowing a defendant to withdraw a guilty

plea.       See, e.g., United States v. Ohiri, 133 F. App’x 555, 562

        4
       If anything, Ruiz’s discussion about the importance of the
government disclosing evidence that may establish a defendant’s
innocence suggests that, if confronted with the issue, the
Supreme Court would hold that a defendant has a constitutional
right to exculpatory evidence at the guilty plea stage. See
McCann v. Mangialardi, 337 F.3d 782, 788 (“Ruiz indicates a
significant distinction between impeachment information and
exculpatory evidence of actual innocence. Given this
distinction, it is highly likely that the Supreme Court would
find a violation of the Due Process Clause if prosecutors or
other relevant government actors have knowledge of a criminal
defendant’s factual innocence [of the charged crime] but fail to
disclose such information to a defendant before he enters into a
guilty plea.”).
                               -9-

(10th Cir. 2005); United States v. Avellino, 136 F.3d 249, 255

(2d Cir. 1998); Sanchez v. United States, 50 F.3d 1448, 1453 (9th

Cir. 1995); White v. United States, 858 F.2d 416, 422 (8th Cir.

1988); Campbell v. Marshall, 769 F.2d 314, 322-24 (6th Cir.

1985); cf. McCann v. Mangialardi, 337 F.3d 782, 788 (7th Cir.

2003) (finding that it is likely that the Supreme Court would

find that the government has an obligation to disclose

exculpatory evidence at the plea stage).5

     [Allowing] a defendant [to] argue that his guilty plea
     was not voluntary and intelligent because it was made
     in the absence of withheld Brady material . . . is
     sensible, because “a defendant’s decision whether or
     not to plead guilty is often heavily influenced by his
     appraisal of the prosecution’s case.” A waiver cannot
     be deemed “intelligent and voluntary” if “entered
     without knowledge of material information withheld by
     the prosecution.”

Sanchez, 50 F.3d at 1453 (quoting Miller v. Angliker, 848 F.2d

1312, 1320 (2d Cir. 1988) (citing Brady v. United States, 397

U.S. 742, 756-57 (1970))); see also Avellino, 136 F.3d at 255

(“The government’s obligation to make such disclosures is

pertinent not only to an accused's preparation for trial but also

to his determination of whether or not to plead guilty.   The

defendant is entitled to make that decision with full awareness

of favorable material evidence known to the government.”).



     5
       But see Matthew v. Johnson, 201 F.3d 353 (5th Cir. 2000);
cf. United States v. Moussaoui, 591 F.3d 263, 285-86 (4th Cir.
2010) (suggesting that there is no right to exculpatory evidence
at the guilty plea stage but declining to resolve the issue).
                                 -10-

       By contrast, the Fourth and Fifth Circuits have suggested

that a defendant does not have a right to exculpatory evidence at

the plea stage because the purpose of Brady is to guarantee a

fair trial.    In Matthew v. Johnson, 201 F.3d 353 (5th Cir. 2000),

the Fifth Circuit reasoned that “[t]he Brady rule’s focus on

protecting the integrity of trials suggests that where no trial

is to occur, there may be no constitutional violation.”     Id. at

361.    The court concluded that “[b]ecause a Brady violation is

defined in terms of the potential effects of undisclosed

information on a judge’s or jury’s assessment of guilt, it

follows that the failure of a prosecutor to disclose exculpatory

information to an individual waiving his right to trial is not a

constitutional violation.”    Id. at 361-62.   Similarly, in United

States v. Moussaoui, 591 F.3d 263 (4th Cir. 2010), the Fourth

Circuit explained that

       [t]he Brady right, however, is a trial right. It
       requires a prosecutor to disclose evidence favorable to
       the defense if the evidence is material to either guilt
       or punishment, and exists to preserve the fairness of a
       trial verdict and to minimize the chance that an
       innocent person would be found guilty.

Id. at 285.    The court continued that “[w]hen a defendant pleads

guilty, those concerns are almost completely eliminated because

his guilt is admitted.”    Id.   However, because the court found

that the defendant did not show that Brady had been violated, the

court declined to resolve whether the defendant had a Brady right

at the guilty plea stage in the first instance.     Id. at 286-88.
                               -11-

     As the Fourth and Fifth Circuits note, the Brady Court was

concerned with avoiding an unfair trial.   However, the Court also

expressed a general resolve to ensure that justice is served.

Specifically, in Brady, the Supreme Court explained that

     our system of the administration of justice suffers
     when any accused is treated unfairly. An inscription
     on the walls of the Department of Justice states the
     proposition candidly for the federal domain: “The
     United States wins its point whenever justice is done
     its citizens in the courts.”

Brady, 373 U.S. at 87.   A defendant who is forced to make a

choice about going to trial or pleading guilty unaware that the

government has not disclosed evidence “which, if made available,

would tend to exculpate him,” id. at 87-88, suffers unfair

treatment unworthy of the bedrock ideal inscribed on the Justice

Department walls.   Moreover, precluding a defendant from raising

such a Brady claim after a guilty plea could create a risk too

costly to the integrity of the system of justice to countenance

-- tempting a prosecutor to stray from that bedrock ideal and

“deliberately withhold exculpatory information as part of an

attempt to elicit guilty pleas.”   Sanchez, 50 F.3d at 1453.   If a

prosecutor did so, that would “cast[] the prosecutor in the role

of an architect of a proceeding that does not comport with

standards of justice[.]”   Brady, 373 U.S. at 88.   Permitting a

defendant to move to withdraw a guilty plea he entered without

having been given exculpatory evidence in the government’s

possession comports with the purpose of the prosecution’s Brady
                               -12-

obligation.   Accordingly, in light of the balance of circuit

court precedent and the purpose of Brady, Nelson can assert his

Brady claim to argue that his guilty plea was not knowing and

voluntary.

     II.   BRADY VIOLATION

     Nelson contends that the prosecution violated its Brady

disclosure obligations by not producing the 1:44 p.m. e-mail.     In

Brady, the Supreme Court held that “the suppression by the

prosecution of evidence favorable to an accused upon request

violates due process where the evidence is material either to

guilt or to punishment, irrespective of the good faith or bad

faith of the prosecution.”   Brady, 373 U.S. at 87.   As such,

“[t]here are three components of a true Brady violation:

[(1)] The evidence at issue must be favorable to the accused,

either because it is exculpatory, or because it is impeaching;

[(2)] that evidence must have been suppressed by the State,

either willfully or inadvertently; and [(3)] prejudice must have

ensued.”   Strickler v. Greene, 527 U.S. 263, 281-82 (1999).

Because Brady obligates prosecutors to assure that all

exculpatory material in the possession of its investigators is

identified and disclosed, suppression by either a prosecutor or

an investigator can violate Brady.    See In re Sealed Case No.

99-3096 (Brady Obligations), 185 F.3d 887, 896 (D.C. Cir. 1999).
                                 -13-

     A.     Favorable evidence

     Nelson argues that the 1:44 p.m. e-mail was exculpatory

because “the email establishes powerful alternative explanations

for both why Mr. Nelson was feigning interest in Detective

Palchak’s proposals for sex with the minor when in fact he was

only interested in obtaining meth, and why Mr. Nelson traveled to

meet Detective Palchak on the day in question.”      Pet’r Mot. at

35; see also Pet’r Gregory Nelson’s Reply to the Govt.’s Brady

Resp. to Mot. to Vacate, Set Aside, or Correct Sentence under 28

U.S.C. § 2255 at 14-20 (arguing that “[f]rom both a reasonable

doubt and an entrapment perspective, the 1:44 pm email was

plainly exculpatory”).    Exculpatory evidence is “that which would

tend to show freedom from fault, guilt or blame.”      United States

v. Blackley, 986 F. Supp. 600, 603 (D.D.C. 1997).      Nelson pled

guilty to violating 18 U.S.C. § 2423(b).      To prevail on this

claim at trial, the government would have had to prove beyond a

reasonable doubt (1) that Nelson traveled in interstate commerce,

and (2) that Nelson’s intent in traveling in interstate commerce

was to engage in a sexual act with a minor.      18 U.S.C. § 2423(b);

see also United States v. Lewis, 318 F. App’x 1, 2 (D.C. Cir.

2009).    If this case had gone to trial, the e-mail could have

cast a reasonable doubt on the claim that Nelson met Detective

Palchak to have sex with a minor.       For example, Nelson could have

used the e-mail to bolster a claim that Nelson had an alternative
                               -14-

motive for traveling to meet Detective Palchak -- to obtain

methamphetamine -- and, as such did not have the requisite

statutory intent.   See Pet’r Mem. at 38.6

     While the government does not dispute that the 1:44 p.m.

e-mail, as interpreted by Nelson, is exculpatory, the government

argues that Nelson has “tortured” an “extraordinary meaning” out

of the 15-word e-mail.   Govt.’s Resp. to “Brady” Claim in Def.’s

Mot. to Vacate, Set Aside or Correct Sentence under 28 U.S.C.

§ 2255 (“Govt.’s Opp’n”) at 14-15.    The government contends that

the “first-blush reading of the e-mail’s meaning” is that “Det.

Palchak actually was ruling out supplying drugs to defendant,

rather than enticing him with an offer of them.”     Id. at 15 n.6.

The government asserts that this is a “far more natural

interpretation of the email . . . than is the meaning given [the

e-mail] in the defendant’s motion.”   Id.    However, the

government’s “argument . . . confuses the weight of the evidence

with its favorable tendency,” Kyles v. Whitley, 514 U.S. 419, 451

(1995).   That the government could have argued that its

interpretation of the e-mail is correct does not mean that Nelson


     6
       Nelson adds that he could have also used the evidence to
bolster any entrapment defense he may have raised. “[A] valid
entrapment defense has two related elements: government
inducement of the crime, and a lack of predisposition on the part
of the defendant to engage in the criminal conduct.” Mathews v.
United States, 485 U.S. 58, 63 (1988). Nelson explains that he
could have contended that the e-mail demonstrated that Detective
Palchak induced Nelson to meet him through the “tactical use of
methamphetamine against a meth addict.” Pet’r Mem. at 43.
                                   -15-

could have not used it as further support for his argument that

he met Detective Palchak only to obtain methamphetamine.      Because

the e-mail was exculpatory, the first element of a Brady

violation is established.

       B.    Suppressed evidence

       “[T]he defendant bears the initial burden of producing some

evidence to support an inference that the government possessed

. . . material favorable to the defense and failed to disclose

it.”    United States v. Price, 566 F.3d 900, 910 (9th Cir. 2009).

“Once the defendant produces such evidence, the burden shifts to

the government to demonstrate that the prosecutor satisfied his

duty to disclose all favorable evidence known to him or that he

could have learned from ‘others acting on the government’s

behalf.’”     Id. (quoting Kyles, 514 U.S. at 437).

       Here, Nelson asserts that the government never produced the

1:44 p.m. e-mail in discovery.      Pet’r Mot. at 25.   The government

does not contest Nelson’s assertion that it did not produce the

e-mail.     Instead, the government argues that the e-mail was not

suppressed because Nelson had read the e-mail and possessed it

throughout this case.     Govt.’s Opp’n at 13.

       As an initial matter, “Brady only requires disclosure of

information unknown to the defendant and then generally only upon

request[.]”     United States v. Derr, 990 F.2d 1330, 1335 (D.C.

Cir. 1993) (emphasis added) (citing United States v. Agurs, 427
                                -16-

U.S. 97, 103, 107 (1976)).   “To state the converse, if the

defendant knows of the specific exculpatory information, Brady

does not require disclosure.”   United States v. Clarke, 767 F.

Supp. 2d 12, 52 (D.D.C. 2011); see also Derr, 990 F.2d at 1335

(“Brady provides no refuge to defendants who have knowledge of

the government’s possession of possibly exculpatory information,

but sit on their hands until after a guilty verdict is

returned.”).

     Nelson admits that he read the e-mail and that as late as

July 2012, the e-mail was in his e-mail inbox.   Pet’r Mot. at 25

n.15 (“The email had never been deleted from Mr. Nelson’s Gmail

inbox.”).   He further admits that before he pled guilty, he told

defense counsel “that he was communicating with Detective Palchak

in an attempt to obtain meth” and gave his counsel his e-mail

address and password to access his e-mail.   Id. at 21-22.

     However, Nelson insists that he could not “specifically

recall the content of each and every communication with Detective

Palchak,” Pet’r Reply at 7, particularly since Nelson was

communicating with a number of other people at the same time, and

had no specific recollection of the 1:44 p.m. e-mail.    Nelson

adds that he was unable to pinpoint to his trial counsel the

exact time of the communication when Detective Palchak confirmed

that he had methamphetamine, and Nelson was unable to produce any

e-mails to his counsel because he was incarcerated.   See also
                               -17-

Nelson Supplemental Brief 24 n.19 (“Mr. Nelson simply did not

recall the emails with the requisite level of

certainty . . . .”).   Rather, his counsel relied on the

representations of the government that the disclosed discovery

included all of the communications between Detective Palchak and

Nelson.   Indeed, Nelson asserted at oral argument that, because

of the government’s affirmative representation that the discovery

included all of the e-mails, Nelson came to believe that either

there were no other e-mails, or that any other e-mails

corroborating his claim that he was merely seeking

methamphetamine had been deleted.

     Moreover, Nelson’s former defense counsel appeared unaware

of the 1:44 p.m. e-mail.   See Def.’s Mem. in Aid of Sentencing at

17 (stating that “Detective Palchak did not respond” to Nelson’s

e-mail asking whether Detective Palchak was going to “party” that

night); id. at 17 n.39 (stating that Exhibit 8 to the defendant’s

sentencing memorandum, which did not include the 1:44 p.m. e-mail

was, “to the best of [defense counsel’s] knowledge, a complete

transcript of the correspondence between Mr. Nelson and Detective

Palchak”).   While the government asserts that Nelson “knew of the

e-mail and had it in his in-box,”     Govt.’s Opp’n at 14, the

evidence suggests that Nelson did not recall the specific e-mail,

or, more importantly, know that it was missing from the discovery

packet that the government disclosed to his counsel.     See Clarke,
                                -18-

767 F. Supp. 2d at 52 (explaining that the court should “focus on

the defendant’s ‘knowledge of the government’s possession of

possibility exculpatory information,’ in contrast to defendant’s

independent knowledge of how the offense transpired” (quoting

Derr, 990 F.2d at 1335)); see also United States v. Johnson, 592

F.3d 164, 171-72 (D.C. Cir. 2010) (finding Derr inapplicable if

the defendant does not know that the government possesses

exculpatory evidence).    The government cannot claim its Brady

obligation had been discharged since Nelson did not know that the

government had the 1:44 p.m. e-mail.    The government nonetheless

was obligated to disclose the e-mail because Brady requires

disclosure of all exculpatory material.

     The government further argues that it did not suppress the

e-mail because Nelson was “‘aware of the essential facts[,]’”

Raley v. Ylst, 470 F.3d 792, 804 (9th Cir. 2006) (quoting United

States v. Brown, 582 F.2d 197, 200 (2d Cir. 1978)), needed for

Nelson to discover the e-mail “by exercising due diligence,”

Rector v. Johnson, 120 F.3d 551, 558–59 (5th Cir. 1997).    Govt.’s

Opp’n at 12-13.   However, in the D.C. Circuit, the prosecution

bears the burden of disclosing any exculpatory evidence in its

possession, and it is no response to a Brady claim that defense

counsel could have learned of the evidence through “reasonable

pre-trial preparation.”    See In re Sealed Case No. 99-3096 (Brady

Obligations), 185 F.3d at 896-97 (internal quotation marks
                                 -19-

omitted).7     While “[t]he appropriate way for defense counsel to

obtain [exculpatory] information [is] to make a Brady request of

the prosecutor[,]” id. at 897, Brady does not excuse the

government’s disclosure obligation where reasonable investigation

and due diligence by the defense could also lead to discovering

exculpatory evidence.     The government was obligated to disclose

the 1:44 p.m. e-mail and it is inconsequential whether Nelson

possessed the salient facts needed to discover the e-mail in his

inbox.

     Even if Nelson had a duty to exercise due diligence to find

the 1:44 p.m. e-mail, his duty would have been extinguished by

the government affirmatively representing that it had disclosed

all electronic communications between Nelson and Detective

Palchak.     “[W]hen the prosecution represents that all such

material has been disclosed[,]” it is reasonable for defense

counsel to rely on the prosecution’s representation.     Banks v.

Dretke, 540 U.S. 668, 695 (2004); see also Strickler, 527 U.S. at

283-84.    That is, “defendants [do not have to] scavenge for hints

of undisclosed Brady material when the prosecution represents

     7
       The “defendant due diligence rule” “excuse[s] the
prosecutors’ failure to disclose exculpatory evidence on the
theory that the defendant either knew or could have known of that
evidence through due diligence.” Kate Weisburd, Prosecutors
Hide, Defendants Seek: The Erosion of Brady Through the Defendant
Due Diligence Rule, 60 UCLA L. Rev. 138, 141 (2012). “The
Supreme Court has never adopted a defendant due diligence rule,”
id. at 147, but “[a]ll federal courts of appeal, except the Tenth
and D.C. Circuits, apply some form of the defendant due diligence
rule,” id. at 153 & n.80 (citing cases).
                                   -20-

that all such material has been disclosed.”       Banks, 540 U.S. at

695.       Here, the government represented that it disclosed to the

defense a complete set of electronic communications between

Nelson and Detective Palchak.       Thus, it was reasonable for Nelson

to rely on the government’s representation and not conduct

further investigation to discover any undisclosed

communications.8
       8
       Nelson further argues that Detective Palchak’s testimony
at the preliminary hearing “that meth was discussed only
‘indirectly,’ and ‘not directly’ was simply untrue” and
“materially false.” Pet’r Mot. at 37. “A conviction obtained
through the knowing use of false evidence, or through the knowing
failure to correct false evidence, violates due process.”
Molina-Aviles v. District of Columbia, 824 F. Supp. 2d 4, 11
(D.D.C. 2011) (citing Napue v. Illinois, 360 U.S. 264, 269
(1959)). To prevail on such a claim, a “defendant must show that
(1) the evidence was actually false; (2) the prosecution knew or
should have known that the testimony was false; and (3) the false
testimony was material.” United States v. Poynter, 908 F. Supp.
2d 30, 36 (D.D.C. 2012), aff’d, 509 F. App’x 2 (D.C. Cir. 2013).
Neither the D.C. Circuit nor the Supreme Court has spoken on
whether an officer’s knowledge of perjured testimony should be
imputed to the prosecutors. See Smith v. Massey, 235 F.3d 1259,
1272 (10th Cir. 2000) (“Supreme Court precedent does not clearly
establish that [an agent]’s knowledge should be imputed to the
prosecution for the purposes of Napue.”), abrogated on other
grounds by Neill v. Gibson, 278 F.3d 1044 (10th Cir. 2001); see
also Briscoe v. LaHue, 460 U.S. 325, 326 n.1 (1983) (“The Court
has held that the prosecutor’s knowing use of perjured testimony
violates due process, but has not held that the false testimony
of a police officer itself violates constitutional rights.”).
The circuits are split on the issue. Compare Boyd v. French, 147
F.3d 319, 329 (4th Cir. 1998) (finding that “knowingly false or
misleading testimony by a law enforcement officer is imputed to
the prosecution” for purposes of Napue) with Massey, 235 F.3d at
1272 (explaining that it “refused to impute the knowledge of a
law enforcement officer to the prosecution where there has been
an alleged Napue violation”). However, it is unnecessary to
resolve this question in order to resolve Nelson’s motion.
                               -21-

     C.   Prejudice

     Finally, Nelson argues that had the government produced the

1:44 p.m. e-mail, he would not have pled guilty.   Generally,

“[t]o satisfy the third prong -- prejudice -- the withheld

evidence must be material, which means ‘there must be a

reasonable probability that, had the evidence been disclosed to

the defense, the result of the proceeding would have been

different.’”   United States v. Pettiford, 627 F.3d 1223, 1227

(D.C. Cir. 2010) (quoting United States v. Johnson, 519 F.3d 478,

488 (D.C. Cir. 2008)).   “[T]he issue in a case involving a guilty

plea is whether there is a reasonable probability that but for

the failure to disclose the Brady material, the defendant would

have refused to plead and would have gone to trial.”   Sanchez, 50

F.3d at 1454 (citing Miller, 848 F.2d at 1322); cf. United States

v. Taylor, 139 F.3d 924, 929-30 (D.C. Cir. 1998) (stating that to

demonstrate that counsel’s deficient performance was sufficiently

prejudicial to allow a defendant to withdraw his guilty plea, the

defendant “‘must show that there is a reasonable probability

that, but for counsel’s errors, he would not have pleaded guilty

and would have insisted on going to trial’” (quoting Hill v.

Lockhart, 474 U.S. 52, 59 (1985)); United States v. Hanson, 339

F.3d 983, 991 (D.C. Cir. 2003) (explaining that for a defendant

to show that he had a reasonable probability that but for his

counsel’s mistake, he would not have pled guilty, the defendant
                                      -22-

“does not need to show that he would have prevailed at trial,

only that there was a reasonable probability that he ‘would have

gone to trial’” (quoting United States v. McCoy, 215 F.3d 102,

108 (D.C. Cir. 2000)).          Exculpatory evidence may be of critical

importance in the defendant’s decision of whether to plead

guilty.       Miller, 848 F.2d at 1320 (stating that “a defendant’s

decision whether or not to plead guilty is often heavily

influenced by his appraisal of . . . information that may be

available to cast doubt on the fact or degree of his

culpability”).       “‘The defendant bears the burden of showing a

reasonable probability of a different outcome.’”         Pettiford, 627

F.3d at 1227 (quoting Johnson, 519 F.3d at 488).

        Nelson argues that “the 1:44 pm email is powerful evidence

of an alternative motive for Mr. Nelson’s words and actions

consistent with his innocence” and that had the prosecution

produced the e-mail “he would have gone to trial.         And rightly

so.”9       Pet’r Mot. at 44.    He claims that the e-mail “provide[s] a

        9
      The government’s denigration of the weight of the evidence
and its persuasiveness at trial is unavailing. The critical
inquiry for prejudice is whether the evidence is material. As
the Court explained in Kyles, “[a]lthough the constitutional duty
is triggered by the potential impact of favorable but undisclosed
evidence, a showing of materiality does not require demonstration
by a preponderance that disclosure of the suppressed evidence
would have resulted ultimately in the defendant’s acquittal
(whether based on the presence of reasonable doubt or acceptance
of an explanation for the crime that does not inculpate the
defendant).” 514 U.S. at 434. Ultimately, “[t]he 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
                               -23-

compelling alternative explanation for why Mr. Nelson said what

he said to Detective Palchak and went to see him.”   Id. at 45.10

     Evidence of that explanation was already available to Nelson

without the undisclosed e-mail.   Detective Palchak’s online

profile identified him as a potential methamphetamine user.    The

government had also given Nelson copies of the e-mail exchange in

which Nelson asked Detective Palchak “u party?” and Detective

Palchak answered “yes[.]”   This e-mail from Detective Palchak

stating that he parties combined with Nelson’s admission that he

read the 1:44 p.m. e-mail makes this a closer case on the issue

of prejudice.   Nelson could have used that evidence at trial as

probative of his alternative intent.   But that evidence tended to

show merely that Nelson’s correspondent at some unspecified time

or times with unspecified frequency had used methamphetamine.

What gives the 1:44 p.m. e-mail far more probative force,

however, is Detective Palchak’s confirmation that he possessed

some methamphetamine that same day, albeit a small amount, and

was looking to use it that same evening.   That tips the scale


resulting in a verdict worthy of confidence.” Id. Here, the
undisclosed evidence “undermines confidence” in the voluntariness
of Nelson’s plea. See id.
     10
       He further argues that the e-mail is evidence of
“Detective Palchak’s tactical use of methamphetamine in [this]
case as a ‘lure’ for Mr. Nelson . . . to come visit him[.]” Id.
at 44-45. It is unclear how reasonably probable it is that
Nelson would have chosen to go to trial to pursue just this
defense theory since it was Nelson, not Detective Palchak, who
twice raised the question of partying or using methamphetamine.
                                 -24-

toward the reasonable probability that had the government

disclosed the 1:44 p.m. e-mail, Nelson would have taken his

chances at trial to show that he was a drug abuser looking to

score, and not someone intending to abuse a child.

                         CONCLUSION AND ORDER

     Because the prosecution suppressed exculpatory evidence

before Nelson pled guilty, Nelson’s due process rights were

violated to his prejudice and his guilty plea was not voluntary

and knowing.   Accordingly, it is hereby

     ORDERED that Nelson’s § 2255 motion [32] be, and hereby is,

GRANTED.   Nelson’s conviction is vacated and Nelson will be

permitted to withdraw his guilty plea.      The remaining briefing

schedule is suspended.    It is further

     ORDERED that the parties appear for a status hearing on

October 30, 2013 at 9:15 a.m.

     SIGNED this 25th day of October, 2013.



                                                 /s/
                                        RICHARD W. ROBERTS
                                        Chief Judge
