                             PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4989


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

JACK WINFRED PARKER,

                Defendant - Appellant.



                            No. 13-4990


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

DOUGLAS E. TAYLOR,

                Defendant - Appellant.



Appeals from the United States District Court for the District
of South Carolina, at Columbia. Cameron McGowan Currie, Senior
District Judge. (3:13-cr-00133-CMC-2; 3:13-cr-00133-CMC-3)


Argued:   March 27, 2015                  Decided:    June 25, 2015


Before DUNCAN, KEENAN, and THACKER, Circuit Judges.
Vacated and remanded by published opinion.    Judge Keenan wrote
the opinion, in which Judge Duncan and Judge Thacker joined.


ARGUED: Joshua Snow Kendrick, KENDRICK & LEONARD, P.C.,
Greenville, South Carolina, for Appellants.        Julius Ness
Richardson, OFFICE OF THE UNITED STATES ATTORNEY, Columbia,
South Carolina, for Appellee. ON BRIEF: Christopher S. Leonard,
KENDRICK & LEONARD, P.C., Greenville, South Carolina, for
Appellants. William N. Nettles, United States Attorney, Winston
D. Holliday, Jr., Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee.




                               2
BARBARA MILANO KEENAN, Circuit Judge:

     Jack     Parker       and      Douglas        Taylor      (collectively,       the

defendants)     appeal     their    convictions        for    engaging    in    illegal

gambling,     in   violation       of   18       U.S.C.    § 1955.       This    appeal

primarily presents the question whether prosecutors’ failure to

disclose certain impeachment evidence, despite knowing of such

evidence before trial, violated the constitutional protections

articulated in Brady v. Maryland, 373 U.S. 83 (1963).

     The central contested issue during the jury trial was the

sufficiency of the evidence to satisfy the statutory requirement

that the gambling operation involve at least five persons.                          The

government advanced several theories regarding the identity of

the “fifth participant” in the gambling business, including that

Jack Parker’s daughter-in-law, Tammy Parker, participated in the

enterprise by maintaining financial and tax records of gambling

proceeds.

     The defendants argue on appeal that the government violated

Brady   by   failing      to    disclose     certain       impeachment    information

regarding Ben Staples, a government witness who testified about

Tammy Parker’s involvement in the gambling operation.                          Upon our

review, we conclude that the government violated its obligations

under   Brady      and,        accordingly,       we      vacate   the    defendants’

convictions and remand their cases to the district court.



                                             3
                                                        I.

        Jack Parker, his son, Brett Parker, and Douglas Taylor 1 were

tried       in    the       district         court      for    participating              in    an   illegal

gambling          business            involving         at    least      five        participants,        in

violation          of       18    U.S.C.         § 1955.           All    three       defendants        were

convicted following a three-day jury trial, although only Jack

and Douglas have filed this appeal from their convictions. 2

                                                        A.

            We    begin          by     describing           the    statute          under      which     the

defendants were convicted, 18 U.S.C. § 1955, which prohibits the

acts of “conduct[ing], financ[ing], manag[ing], supervis[ing],

direct[ing],            or       own[ing]        all    or    part       of    an    illegal         gambling

business.”             18 U.S.C. § 1955(a).                   An “illegal gambling business”

is   defined           as    a    gambling          business        that:      (1)    is       operated    in

violation of applicable state or local law; (2) “involves five

or more persons who conduct, finance, manage, supervise, direct,

or   own         all    or       part       of   such    business”            (the    five-participant

requirement);               and       (3)    “has      been    or    remains         in    substantially

continuous operation for a period in excess of thirty days or

        1
       Because Jack, Brett, and Tammy Parker share a last name,
we will refer to all the defendants by their first names in this
opinion.

        2
       In addition to the federal gambling conviction, Brett was
convicted in a South Carolina state court of murdering his wife,
Tammy, and his business partner, Bryan Capnerhurst.     Brett was
sentenced to two terms of life imprisonment for these murders.


                                                         4
has   a   gross   revenue        of    $2,000      in     any    single    day.”     Id.

§ 1955(b).

      Congress imposed the above size and duration limitations in

Section    1955   “as    a       means   of       screening      out    those    gambling

businesses     that     are      too     insignificant           to    warrant   federal

action.”     United States v. Gresko, 632 F.2d 1128, 1132 (4th Cir.

1980).        When      attempting        to       prove        the    five-participant

requirement, the government need not show that the same five

participants were involved in the business for all thirty days;

“[h]owever, there must be evidence that the business involved at

least five people at all times for thirty days.”                          Id. at 1132-

33.       Accordingly,       a    jury    considering           the    five-participant

requirement may reach a guilty verdict under Section 1955 so

long “[a]s each member of the jury agrees that some five persons

were involved at all times over some thirty-day period or on any

one single day in which the gross revenues exceeded $2,000.”

United States v. Nicolaou, 180 F.3d 565, 571 (4th Cir. 1999)

(emphasis in original).

                                           B.

      The defendants stipulated at trial that they engaged in

“bookmaking” in violation of South Carolina law.                         Therefore, the

government’s      evidence            focused        on     the        five-participant

requirement of Section 1955.                  The government sought to prove

that the business operated by Jack and Douglas was linked to

                                              5
another two-person gambling enterprise operated by Brett, and

that this joint enterprise also included a fifth participant.

     The defendants stipulated that Jack and Douglas engaged in

a sports gambling business together, and further stipulated that

Brett worked with a fourth man, Bryan Capnerhurst, also in a

sports    gambling       business.    In       the     course   of    these    gambling

operations,      customers       placed    telephone       calls       or   sent     text

messages    to     the   defendants   to       place    bets    on    the   outcome    of

certain    collegiate      and   professional          sporting      events.       Brett,

Bryan,     Jack,     and    Douglas   thus       acted     as     “bookmakers,”        or

“bookies,” and received a ten percent surcharge on bets their

customers lost as well as the net value of their customers’

losses minus their wins.

     Although these gambling operations often were conducted as

separate enterprises, the evidence also showed that Jack and

Douglas periodically answered the telephone line that Brett and

Bryan used for accepting bets, and vice versa.                          Beginning in

February 2012, Jack and Douglas transferred to Brett and Bryan

telephone calls received from customers who wished to place bets

on NCAA basketball games.             The proceeds or losses from these

shared clients were distributed among the four bookmakers.                            The

government argued from this evidence that Brett, Bryan, Jack,

and Douglas all participated in the same gambling business (the



                                           6
gambling     business)       during     the       time       period     alleged         in    the

indictment.

     To     satisfy    the     five-participant              requirement       of       Section

1955,     the     government        offered           evidence        regarding         several

additional individuals linked to the gambling business through

Brett.     The government first sought to prove that Brett’s wife,

Tammy, not only was aware of her husband’s gambling business,

but also participated in the business by directing the use of

Brett’s gambling income for family expenses and by maintaining

the family’s financial records.                  In support of this theory, the

government       presented    the    testimony          of    Ben     Staples,      a    family

friend, who stated that he assisted Tammy in preparing joint

federal tax returns in which she disclosed Brett’s income from

the gambling business.

     Through       Staples’s       testimony,          the     government         introduced

Tammy’s    handwritten       notes     regarding         the     family’s      budget         and

finances.         Tammy      included    several             references      to     gambling

proceeds    in    these     notes,    including         sums     of    money     held        in   a

“booking    fund”     and    the     share       of    profits        from   the    gambling

business that were due to Bryan. 3                      She also indicated in her

notes some plans she had for distributing gambling proceeds,


     3  A law enforcement investigator testified that Brett
designated the booking fund as a cash reserve for use in the
event that he incurred significant gambling losses.


                                             7
such as one note stating, “use deposits from booking to pay for

equity line.”

       Aside    from     Staples’s      testimony         and    Tammy’s        notes,    the

government offered two other items of evidence regarding Tammy’s

involvement in the gambling business.                     First, during a search of

Brett’s and Tammy’s home after her death, law enforcement agents

recovered from Tammy’s desk an envelope with the words “Booking

Fund-$20,000”         written    on    the     envelope.          This        envelope    was

introduced as an exhibit at trial.                  Second, Harold Saxby, one of

Brett’s gambling customers, testified that when Brett was not at

home, Tammy periodically accepted envelopes containing money for

bets.        The government asserted that this collective evidence

supported the conclusion that Tammy was the fifth participant in

the gambling business.

       The    government      also     argued      that   certain       individuals       who

worked as “layoff bookies” each could have constituted the fifth

participant      in    the    gambling       business.          See    United    States    v.

Jenkins,       649    F.2d      273,    275       (4th    Cir.        1981)     (explaining

circumstances under which a layoff bookie can be considered a

participant in a gambling business).                      “Lay off betting” occurs

when    a    bookmaker       “passes    on    to    another       bookmaker       [i.e.,    a

‘layoff bookie’] the amount of bets by which his own ‘book’ is

unbalanced; thus to the extent he loses to his own customers, he

wins back from the other bookmaker, or vice versa.”                                  United

                                              8
States     v.   Thomas,     508   F.2d    1200,        1202    n.2    (8th     Cir.       1975).

Layoff betting is therefore a type of insurance for bookmakers

to protect against losses to their own customers.                          Id.

      Several witnesses testified about Brett’s participation in

layoff     betting    and   his       association       with    layoff       bookies.        An

officer investigating the present case testified that Brett had

admitted having engaged a layoff bookie named Ron Spence.                                 Also,

in   recorded       conversations       with       Staples     and     Jack,       Brett    had

discussed his practice of laying off bets.

      Government       witness        Harry    Benenhaley,           another       bookmaker,

testified that Brett’s conduct of placing bets with Benenhaley

was “consistent with” the practice of laying off bets.                                  However,

Benenhaley also stated that he eventually suspected that Brett

was using the purported layoff account to place personal bets on

his own behalf.         The government nevertheless asserted that the

evidence regarding Brett’s layoff betting supported a finding

that one of the layoff bookies was a fifth participant in the

gambling business.

      Finally,       the    government            offered      evidence        that       Brett

received “lines” from another bookmaker, Vincent Sanford, that

could      render    Sanford      a    fifth       participant        in     the    gambling

business.       A “line” “constitutes the ‘odds’ or ‘handicaps’ or

‘point spreads’ on the wagered contests,” and includes “a list

of   the    teams     and   events       with      a   certain        number       of    points

                                              9
attributed to the nonfavored team.                     To win a bet on the favored

team . . . that team must win by a score exceeding the point

spread given to the nonfavored team.”                     United States v. George,

568 F.2d 1064, 1067 n.4 (4th Cir. 1978) (quoting Thomas, 508

F.2d at 1202).

       Sanford testified that he provided Brett with lines on a

daily basis during a three-year period between 2009 and 2012,

and suggested that these lines assisted Brett in placing his

personal      bets.           After    receiving          Sanford’s       lines,       Brett

frequently placed such personal bets with Sanford.                              The record

does   not    indicate       whether   Brett      used     Sanford’s      lines       in   the

gambling business.             However, bookies may cooperate with each

other in order to set consistent lines and to prevent bettors

from winning on competing teams.                  See id. at 1067 n.7, 1069-70.

In this case, the government sought to prove a link connecting

Sanford      to    Brett’s    gambling      business       by    eliciting      the    above

evidence of Sanford’s sharing of information.

                                            C.

       The jury trial began on Monday, September 16, 2013.                            On the

preceding         Friday,    September      13,     2013,       Staples    advised         the

prosecution team from the United States Attorney’s Office for

the    District      of    South   Carolina       that    the    Utah   office        of   the

Securities         and      Exchange     Commission             (SEC)     was     actively

investigating        him     for   fraud.        The     prosecution      team    did      not

                                            10
disclose its knowledge of this investigation to the defendants’

attorneys.      When the government presented Staples’s testimony on

Tuesday, September 17, 2013, the defendants’ counsel did not

cross-examine him.

     Also on Tuesday, September 17, 2013, an attorney in the

civil division of the same United States Attorney’s Office that

was prosecuting the defendants (the civil division) received a

draft   civil    complaint   from     the    SEC   identifying    Staples    as   a

defendant.      The complaint was to be filed in the district court

in South Carolina, with the United States Attorney’s Office for

the District of South Carolina acting as local counsel.                     In the

complaint, the government alleged that Staples had engaged in

“fraudulent conduct . . .        designed to profit from the deaths of

terminally      ill   individuals.”         Staples   allegedly   purchased       on

these individuals’ behalf discounted corporate bonds containing

a survivor’s option, which option Staples fraudulently redeemed

at full value for his own benefit upon the death of each client.

Staples allegedly obtained profits of at least $6.5 million as a

result of this scheme.

     One day after the civil division received the complaint, on

Wednesday, September 18, 2013, the jury in the defendants’ case

began its deliberations, and returned guilty verdicts the same

day against Jack, Brett, and Douglas.                 Also on that day, the

chief attorney of the civil division read a newspaper article

                                       11
about Staples’s testimony in the present case, and contacted the

Utah office of the SEC to determine whether Staples was the same

person who was the subject of the SEC complaint.                               However, the

record       does    not    show   whether,         or    in   what      manner,     the     SEC

responded to this request for information.

        On    Friday,      September   20,     2013,       two    days      after    the    jury

returned the guilty verdicts, an attorney in the civil division

filed    the     SEC    complaint      in    the     district       court.          After   the

complaint was filed, an attorney in that division discussed the

contents of the complaint with the prosecutors in this case.

     On       Tuesday,      September       24,     2013,      after     defense       counsel

learned of the SEC complaint, the defendants requested a new

trial        based    on    the    government’s           failure      to     disclose      the

impeachment evidence involving the SEC investigation, which the

defendants contended was material to the jury’s verdict.                                      In

assessing       the     defendants’         Brady        claim,   the       district       court

assumed that the prosecutors knew during the trial that Staples

was being investigated by the SEC, and that there was a pending

civil complaint.            Although the court found that the defendants

did not know about the SEC investigation, the court concluded

that a Brady violation had not occurred because evidence of the

SEC investigation was not material to the jury’s determination

of the defendants’ guilt.               Thus, the district court found that

the defendants had failed to show that there was a reasonable

                                              12
probability of a different result had they been informed in a

timely manner of the SEC investigation.

       The    district       court        reasoned      that     although         Staples’s

testimony      helped       to     establish      Tammy’s       involvement         in     the

gambling     business,       “the    Government’s        case    did       not    depend    on

Tammy Parker being the fifth participant.”                           The court further

explained that Staples’s testimony was limited to authenticating

Tammy’s      notes    and    the    audio    recordings        and    to    matters      that

largely were not in dispute, and that, therefore, an attack on

Staples’s credibility was unlikely to have had an impact on the

jury   verdict.        The       court    accordingly     denied       the       defendants’

motions for a new trial, and this appeal followed.



                                            II.

       The    defendants         argue    that    the   district       court       erred    in

denying their motions for a new trial based on the government’s

failure      to      disclose       its     knowledge       of       the     active        SEC

investigation, in violation of Brady.                       The defendants assert

that the SEC investigation was material to the outcome of the

trial, because the jury could have found that Tammy was the

fifth participant based primarily on Staples’s testimony linking

her to the gambling business.

       In response, the government contends that its failure to

disclose information about the ongoing SEC investigation did not

                                             13
result in a Brady violation because: (1) the fraud investigation

conducted by the SEC was not proper impeachment evidence under

Federal       Rule      of     Evidence    608(b);        (2)   Staples      provided     only

“limited”         and       “uncontroversial”        testimony;      (3)     the    defendants

already had knowledge of Staples’s business practices underlying

the SEC complaint; and (4) the prosecution team did not have a

duty     to       “uncover”          an   investigation         conducted          by   another

government agency.                 We disagree with the government’s arguments.

       We review the district court’s denial of a motion for a new

trial for abuse of discretion.                        United States v. Stokes, 261

F.3d 496, 502 (4th Cir. 2001).                        A district court abuses its

discretion when it commits a legal error in determining whether

a Brady violation has occurred; we therefore review the district

court’s Brady ruling de novo.                   United States v. Bartko, 728 F.3d

327, 338 (4th Cir. 2013).                  In conducting this de novo analysis,

we review the district court’s accompanying factual findings for

clear error.            United States v. King, 628 F.3d 693, 702 (4th Cir.

2011).

       Under       the        Supreme      Court’s        decision      in     Brady,      “the

suppression            by    the    prosecution      of    evidence     favorable        to   an

accused       .    .    .     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.”                               373 U.S. at 87.

To establish a Brady violation, a defendant must show (1) that

                                                14
the undisclosed information was favorable, either because it was

exculpatory    or     because      it     was      impeaching;       (2)    that    the

information    was    material;     and      (3)    that    the    prosecution     knew

about the evidence and failed to disclose it.                       United States v.

Wilson, 624 F.3d 640, 661 (4th Cir. 2010); see also Giglio v.

United   States,     405    U.S.   150,      153-54      (1972)    (explaining     that

material impeachment information is encompassed within the Brady

rule).

     Evidence is material if there is a “reasonable probability

that its disclosure would have produced a different result.”

Bartko, 728 F.3d at 340 (citation omitted).                       This standard does

not require a showing that a jury more likely than not would

have returned a different verdict.                 Id.     Rather, the “reasonable

probability”    standard      is   satisfied        if     “the    likelihood      of   a

different result is great enough to undermine confidence in the

outcome of the trial.”             Id. (citation and internal quotation

marks omitted).       And, in particular, impeachment evidence may be

material    when     the    witness     in      question     “supplied      the    only

evidence of an essential element of the offense,” especially if

the undisclosed evidence was the only significant impeachment

material.      Id.     at    339   (citation         omitted).         In   contrast,

impeachment evidence is not material if it is “cumulative of

evidence of bias or partiality already presented and thus would



                                          15
have provided only marginal additional support for the defense.”

Id. (citation, internal quotation marks, and brackets omitted).

      Initially, we conclude that the ongoing nature of the SEC

investigation    was    admissible,       favorable          impeachment         evidence.

If the defendants had been able to cross-examine Staples about

the   SEC    investigation,       they    could       have       impeached       Staples’s

credibility     in   two   ways.         First,    such         evidence     would    have

demonstrated     Staples’s        potential       bias       in     testifying       as   a

government    witness      when    he    knew    that       a    significant       federal

investigation was pending against him.                          “[T]he exposure of a

witness’    motivation     in     testifying      is    a       proper    and    important

function” of cross-examination.                 United States v. Ambers, 85

F.3d 173, 176 (4th Cir. 1996) (quoting Davis v. Alaska, 415 U.S.

308, 316-17 (1974)).            As the Supreme Court observed in United

States v. Abel, 469 U.S. 45 (1984), an effective showing of bias

held by a witness “would have a tendency to make the facts to

which he testified less probable in the eyes of the jury than it

would be without such testimony.”               Id. at 51.

      Second,   questions        regarding      the    SEC        fraud   investigation

could have been used under Federal Rule of Evidence 608(b) to

show Staples’s general character for untruthfulness.                            Under Rule

608(b), “specific instances of a witness’s conduct” may be the

subject of cross-examination if such instances “are probative of



                                          16
the    character       for     truthfulness           or    untruthfulness          of   []    the

witness.”          Fed. R. Evid. 608(b).

       Fraudulent           conduct       is     an        “instance[]       of     misconduct

. . . clearly probative of truthfulness or untruthfulness” and

such evidence is admissible under Rule 608(b).                            United States v.

Leake,       642    F.2d    715,     718-19      (4th      Cir.    1981).      Although        the

allegations in the SEC complaint had not yet been proven at the

time of the defendants’ trial, the alleged conduct underlying

the    SEC     complaint       and      the     government’s        pursuit       of     a   fraud

investigation against Staples unquestionably were probative of

Staples’s          character        for    untruthfulness           under     Rule       608(b).

Therefore,          evidence       of     the    ongoing          SEC   investigation          was

favorable          impeachment       information           under    the     first      prong    of

Brady. 4      See Wilson, 624 F.3d at 661.

       We next conclude that evidence of the SEC investigation

was material under the standard articulated in Brady, and under

decisions applying the Brady rule.                          As we already have noted,

for    the    jury     to    have    convicted        the     defendants      under      Section

1955, it was not necessary that all twelve jurors agree on the

identity of the fifth participant.                          See Nicolaou, 180 F.3d at

571.       The jury could have reached a guilty verdict against the

       4
       We observe that, in its consideration of the defendants’
motions for a new trial, the district court noted that it would
have permitted limited cross-examination regarding the SEC
investigation.


                                                 17
defendants     if       only     one   juror     had    based     her   determination          of

guilt on a finding that Tammy was the fifth participant in the

business, and the remaining eleven jurors had concluded instead

that a layoff bookie was the fifth participant.

       The verdict form did not ask the jurors to specify the

identities of the participants in the gambling business and,

thus,    we   do     not       know    whether      any    juror      relied     on     Tammy’s

involvement        in     the     gambling     business        to   satisfy       the    five-

participant       requirement.              However,      in   light    of     the    relative

strength of the government’s theories, we conclude that there is

a    reasonable      probability        that     at    least    one     juror    would       have

viewed Tammy as the fifth participant.

       The government depicted Tammy as the only purported fifth

participant        who     had    a    role    in      managing     money    made       in    the

gambling business.              Tammy’s payment of taxes on gambling income

illustrated her detailed knowledge of and direct involvement in

the gambling business’ finances.                    Tammy also physically accepted

payments      from       one     of    Brett’s      customers,        accounted       for     the

“booking fund,” set aside the share of profits owed to Bryan,

Brett’s employee in the gambling business, and directed the use

of    gambling      proceeds          for   household      expenses.            These    facts

constituted sufficient evidence from which the jury could have

concluded that Tammy was a fifth participant in the gambling



                                               18
business based on her role in actively managing the business’

proceeds.

       We    further       observe      that      the    government’s     evidence

supporting the layoff bookie theory was no stronger than the

evidence     supporting       Tammy’s   involvement.        While   the   evidence

regarding Brett’s use of layoff bookies involved the testimony

of several witnesses, this evidence was general and cumulative

in nature.       Although the jury could have inferred from this

evidence that Brett engaged in layoff betting during the time

period      alleged   in   the      indictment,    the   government’s     evidence

supporting this theory was far from overwhelming, and was not

sufficiently strong to permit us to conclude that all twelve

jurors convicted the defendants on this theory regarding the

fifth participant.

       The government’s evidence concerning Sanford’s involvement

in the gambling business, which involved providing “lines” to

Brett, was even less substantial than the evidence supporting

the layoff bookie theory.               Sanford testified that he was not

concerned with other bookmakers’ lines, and suggested that he

sent   lines    to    Brett    in   order    to   facilitate   Brett’s    personal

betting.      Although the government contends otherwise, Sanford’s

testimony could only support the conclusion that Brett used the

lines to place his own personal bets with Sanford.



                                            19
        Upon review of this evidence supporting each of the three

theories advanced by the government, we conclude that there is a

reasonable       probability         that      at    least      one     juror      would      have

rejected the government’s theories with respect to the layoff

bookies and Sanford, and found that Tammy was the only fifth

participant       in        the     gambling        business. 5            Accordingly,         in

considering the materiality prong of Brady, we must determine

whether the ability to impeach Staples’s testimony would have

had a reasonable probability of changing a single juror’s view

regarding Tammy’s involvement in the gambling enterprise.

     Aside       from       Staples’s    testimony,        the       government      presented

only minimal evidence of Tammy’s involvement in the gambling

operation.            The    only    other      evidence        linking       Tammy      to   the

business    was       her    periodic     acceptance           of    envelopes      containing

betting payments when Brett was not at home, and the “booking

fund”    envelope       that      was   found       on   her    desk       after   her     death.

Although     a    jury       could      have    concluded           from    this    additional

evidence that Tammy physically handled betting funds, Staples’s

testimony,       if     believed,       affirmatively          established         that    Tammy

     5 We also observe that during its deliberations, the jury
submitted to the court a question concerning whether all jurors
must unanimously agree on the identity of the fifth participant.
This jury question, although not definitive in any respect,
provides additional support for a conclusion that there is a
reasonable probability that at least one member of the jury
relied on Tammy’s involvement to satisfy the five-participant
requirement.


                                               20
actively managed the gambling proceeds as part of the family’s

budget    and    paid    taxes    on   gambling     income   on   Brett’s   behalf.

Staples’s       testimony       therefore    supplied     critical    evidence    in

support of the government’s theory that Tammy acted as a fifth

participant in the gambling business.                 Moreover, such testimony

was particularly significant because no evidence directly linked

Tammy to the gambling business conducted by Jack and Douglas.

     The    evidence       in    the   present    case    thus    stands   in   stark

contrast to the evidence in Bartko, in which we identified an

egregious pattern of Brady violations by the government, but

concluded       that    these    failures    were   not   material    due   to   the

strength of the government’s case and the defendant’s already

extensive impeachment of a key government witness.                     728 F.3d at

337-40.     Here, however, defense counsel did not even attempt to

cross-examine Staples in the absence of available impeachment

evidence concerning Staples’s fraudulent activities. 6

     Additionally, in Bartko, we emphasized that the government

had presented “overwhelming” evidence of Bartko’s guilt “beyond


     6 The government contends that defense counsel could have
cross-examined Staples regarding his past romantic relationship
with Tammy, even though Staples already had admitted the fact of
the relationship on direct examination. This argument, however,
misses the point that evidence of an active federal fraud
investigation of Staples’s activities involving terminally ill
victims would have been far more damaging to Staples’s
credibility   than  his   romantic  liaison   with   a  deceased
acquaintance.


                                            21
any   shadow     of     a    doubt.”        Id.     at    340     (agreeing         with   these

conclusions reached by the district court).                              In contrast, the

government in the present case pieced together various different

theories regarding the identity of the fifth participant, none

of which was supported by overwhelming evidence.

      We        therefore         disagree               with         the         government’s

characterization of Staples’s testimony as being of “limited”

effect.     By authenticating Tammy’s handwriting and her budget

notes for the jury, Staples’s testimony provided the only direct

evidence of Tammy’s active management of gambling proceeds, as

opposed    to    mere       knowledge       of    Brett’s        role    in       the    gambling

business.         And       because    the       government       did       not    offer     into

evidence    the       actual    tax    returns       on     which       Tammy       listed    the

gambling    income,         Staples’s       testimony       was       the     only       evidence

establishing that Tammy completed those tax forms.

      If   the    defendants          had    been    able        to   ask     Staples       about

whether    his    testimony      was     influenced         by    a     desire      to    receive

favorable        treatment       from        the     government             in      the     fraud

investigation, and about his alleged involvement in the major

fraud scheme, the defendants could have undermined further the

limited evidence presented by the government that Tammy was the




                                             22
fifth participant in the gambling business. 7                             For these reasons,

we    conclude      that     the    prosecutors           violated        their     obligations

under Brady when they failed to disclose impeachment evidence of

the    SEC     investigation            to    defense        counsel,        and    that     this

impeachment evidence was material to the outcome of the trial.

       Our     conclusion          is    not       altered          by     the     government’s

contention      that    it    was       not    required        to    disclose       information

about the SEC investigation because the defendants already were

aware of Staples’s conduct underlying the SEC complaint.                                       In

making this assertion, the government principally relies on a

recorded     conversation          between        Brett      and     Jack    in    which    Brett

stated that he thought that Staples was engaged in a “scam”

involving      elderly        people,          and      that       “if     they     investigate

[Staples]      he    won’t     want      to       get   on     the       stand    with     nothing

[because]      his     credibility           is    sh*t”       (emphasis         added).      The

government further asserts that Jack informed a Secret Service

agent working on the federal gambling investigation that Staples

was    being     investigated            for      certain       “questionable            business

practices.”


       7
       We disagree with the government’s argument that evidence
of the SEC investigation is not material because Staples would
have denied engaging in fraud if asked during cross-examination.
Staples had admitted to the prosecution team that he was aware
of the SEC investigation, which knowledge itself would have
called into question Staples’s motivation for testifying on
behalf of the government.


                                                  23
       We examine this issue under the established principle that

when    “exculpatory     information      is   not    only     available      to   the

defendant but also lies in a source where a reasonable defendant

would have looked, a defendant is not entitled to the benefit of

the Brady doctrine.”         United States v. Jeffers, 570 F.3d 557,

573 (4th Cir. 2009) (quoting United States v. Wilson, 901 F.2d

378, 381 (4th Cir. 1990)).               Thus, a Brady violation has not

occurred if the defense is aware, or should have been aware, of

impeachment     evidence    in    time   to    use   it   in    a   reasonable     and

effective manner at trial.         Id.

       After considering the government’s evidence, the district

court   found    that   although     Brett     and   Jack      “may   have   thought

Staples had stolen from elderly or sick people,” neither Jack,

Douglas,   nor   Brett     knew   about    the   nature      of     the   fraud,   the

active SEC investigation, or the imminent SEC complaint.                           The

government has failed to identify anything in the record to show

that the district court clearly erred in this determination.

See King, 628 F.3d at 702.               Moreover, even if the defendants

were    aware     of     Staples’s       alleged     “questionable           business

practices,” the impeachment value of such information would have

been far less than the value of showing that Staples was the

subject of an imminent civil fraud action and may have been

testifying in an effort to receive favorable treatment from the

government.      Thus, the proffered evidence of Brett’s and Jack’s

                                         24
knowledge       did    not   relieve      the       government       of   its   disclosure

obligations. 8

       We likewise disagree with the defendants’ contention that

the evidence was insufficient to support their convictions.                                In

evaluating a challenge to the sufficiency of the evidence, we

must       determine    whether     a    reasonable         fact     finder     could    have

accepted the evidence “as adequate and sufficient to support a

conclusion of a defendant’s guilt beyond a reasonable doubt,”

viewing       the     evidence     in    the        light   most     favorable     to     the

government.          United States v. Cornell, 780 F.3d 616, 630 (4th

Cir. 2015) (quotation marks and citations omitted).

       As we already have observed, the sole disputed element of

the    crime    was     whether     there      were     five       participants     in    the

gambling       business      for   the    required          time    period.       Although

Section       1955     requires     that        an     illegal       gambling     business

       8
       We similarly are unpersuaded by the government’s argument
that its disclosure obligations were not triggered because the
prosecution team was unaware before trial of the imminent civil
complaint initiated by the SEC and filed by a different division
of the United States Attorney’s Office in South Carolina.         The
government contends that the prosecution team did not have to
uncover   impeachment   information    held   by   other   government
agencies.    See Kyles v. Whitley, 514 U.S. 419, 437 (1995)
(“[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.”) (emphasis added).          We need
not   consider   whether   this    distinction   advocated   by   the
government has any merit, in light of the prosecution team’s
admission that Staples personally had advised the prosecutors
about the active SEC investigation three days before trial.



                                               25
“involve[] five or more persons” who engage in certain business-

related       activities,        the    jurors      need       not    reach       a    unanimous

agreement regarding which five persons comprised the gambling

business.       See Nicolaou, 180 F.3d at 571.                        In other words, the

disputed      element       of   Section     1955       on    which    the    jury          must    be

unanimous       is    the    size       of   the    gambling         operation,          not       the

“particular          set    of    facts”      underlying         the     five-participant

element.       Id.; see also Schad v. Arizona, 501 U.S. 624, 631-32

(1991) (explaining that jurors returning a general verdict need

not    agree     on    a    single       means     of    commission          of       the    crime)

(plurality opinion); United States v. Griggs, 569 F.3d 341, 343

(7th Cir. 2009) (“The law distinguishes between the elements of

a crime, as to which the jury must be unanimous, and the means

by    which    the     crime     is     committed.”).           As     the    Supreme          Court

explained in Griffin v. United States, we will not overturn a

jury’s guilty verdict merely because the jury had the “option of

relying upon a factually inadequate theory” proffered by the

government, so long as “there existed alternative grounds for

which the evidence was sufficient.”                          502 U.S. 46, 59-60 (1991)

(citation omitted).

       We     therefore          must    determine           whether     the           government

presented sufficient evidence to support one of its theories

regarding the fifth participant.                        We initially hold that the

government offered sufficient evidence for the jury to find that

                                              26
Brett,      Jack,      Douglas,   and    Bryan   worked       together    in    a   single

gambling business.            The evidence, construed in the light most

favorable to the government, showed that the bookmakers from

each       business      periodically     answered      the    telephone       lines   the

other business used to accept bets, and that the two operations

shared clients beginning in February 2012.                        In addition, as we

explained in our Brady analysis, the evidence was sufficient to

support      a    jury    finding    that   Tammy     was     a   fifth   participant.

Although         the     government’s     case    was     not      overwhelming,       the

evidence viewed in the light most favorable to the government

formed a sufficient basis for the defendants’ convictions. 9                           We

therefore do not enter judgments of acquittal, but vacate the

defendants’            convictions      based    on     the       government’s      Brady

violation and remand the cases to the district court.




       9
       The defendants additionally argue that Tammy’s notes are
inadmissible hearsay and should have been excluded from the
trial.   We disagree.   The notes were not “offer[ed] . . . to
prove the truth of the matter asserted” such as, for example,
the value of the money actually held in the booking fund.      See
Fed. R. Evid. 801(c). Rather, the government offered the notes
to illustrate Tammy’s knowledge of and participation in the
gambling business.    Because the notes are not hearsay, the
district court did not abuse its discretion in admitting them.



                                            27
                               III.

     Accordingly, we vacate the convictions of Jack Parker and

Douglas Taylor.   We remand their cases to the district court for

further proceedings consistent with this opinion.



                                             VACATED AND REMANDED




                                28
