FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
VICTOR H. KOHRING, Defendant-Appellant.
No. 08-30170
D.C. No. 3:07-cr-00055-JWS-1
OPINION
Appeal from the United States District Court
for the District of Alaska
John W. Sedwick, District Judge, Presiding
Argued October 6, 2010
Submitted March 11, 2011
Seattle, Washington
Filed March 11, 2011
Before: Betty B. Fletcher, A. Wallace Tashima and Sidney R. Thomas, Circuit Judges.
Opinion by Judge Thomas;
Partial Concurrence and Partial Dissent by Judge B. Fletcher
[...]
[29] Taken together, the newly-disclosed information is
material and, as a result, the prosecution violated Brady/Giglio.
III
[30] We are left to decide the appropriate remedy. The
government clearly should have disclosed a substantial
amount of the information in question. However, we do not
have sufficient evidence to conclude the prosecution “acted
flagrantly, willfully, and in bad faith.” See United States v.
Chapman, 524 F.3d 1073, 1085 (9th Cir. 2008). As a result,
we do not exercise our supervisory authority by dismissing
the Superceding Indictment. See id. (citing United States v.
Kearns, 5 F.3d 1251, 1255 (9th Cir. 1993) (holding that even
though the government’s conduct “may have been negligent,
or even grossly negligent,” it did not rise to the level of flagrant
misconduct)). Nor are we able to conclude that the violations
were a result of “outrageous government conduct” that
amounted “to a due process violation,” which would also warrant
dismissal of the Superceding Indictment. Id. at 1084. We
have previously observed that “the appropriate remedy” for a
Brady/Giglio violation “will usually be a new trial.” Id. at
1086. That is the case here.5
[31] Kohring’s conviction is vacated, and this matter is
remanded to the district court for a new trial. We need not,
and do not, reach any other issue urged by the parties on
appeal.
B. FLETCHER, Circuit Judge, concurring in part and dissenting in part:
I concur in Parts I and II of the majority’s opinion, which
unequivocally establish that the prosecution withheld and suppressed
material that was favorable to the defense, in violation
of Brady and Giglio, and that these suppressions undeniably
prejudiced Kohring. I respectfully dissent, however, from Part
III. Because this case exemplifies “flagrant prosecutorial misconduct,”
United States v. Chapman, 524 F.3d 1073, 1085
(9th Cir. 2008), I would have this court exercise its supervisory
authority to dismiss the Superceding Indictment with prejudice.
“A court may dismiss an indictment under its supervisory
powers only when the defendant suffers ‘substantial prejudice’
and where ‘no lesser remedial action is available.’ ” Id.
at 1087 (internal citations omitted). Both conditions are satisfied
here. The majority opinion clearly establishes the substantial
prejudice Kohring has suffered as a result of the
prosecution’s misconduct in this case. And, as discussed
below, the prosecution’s unrepentant attitude indicates that no
lesser remedial action will be effective.
A court may exercise its supervisory power “to implement
a remedy for the violation of a recognized statutory or constitutional
right; to preserve judicial integrity by ensuring that a
conviction rests on appropriate considerations validly before
a jury; and to deter future illegal conduct.” United States v.
Simpson, 927 F.2d 1088, 1090 (9th Cir. 1991), abrogated on
other grounds as recognized by United States v. W.R. Grace,
526 F.3d 499, 511 n.9 (9th Cir. 2008). Each of these considerations
is relevant in this case.
First, as detailed in the majority’s opinion, the prosecution’s
Brady/Giglio offenses violated Kohring’s due process
right to a fair trial. See Chapman, 524 F.3d at 1086 (observing
that Brady violations “are just like other constitutional violations”
and may justify the dismissal of an indictment “when the
prosecution’s actions rise . . . to the level of flagrant prosecutorial
misconduct”). Furthermore, the prosecution’s misconduct
is an affront to the integrity of our system of justice.
The prosecution failed to disclose thousands of pages of
material documents — including FBI reports, memoranda,
and police reports — until after Kohring’s conviction. Even
then, the prosecution failed to fulfill its disclosure obligations,
turning over the previously undisclosed documents only after
the defense filed a Brady motion.
I disagree with the majority’s conclusion that the prosecution’s
conduct does not amount to flagrant, willful bad-faith
misbehavior. See Maj. Op. at 3465. Our court has “never suggested
. . . that ‘flagrant misbehavior’ does not embrace reckless
disregard for the prosecution’s constitutional obligations.”
Chapman, 524 F.3d at 1085. Here, the record is
replete with such reckless disregard. To cite just two examples:
The late-disclosed information establishes that the prosecution
was aware of the Anchorage Police Department’s
investigation into Allen’s sexual misconduct, long before
Kohring’s trial began. It also indicates that Allen and Smith
had wildly differing recollections as to how much money they
allegedly gave to Kohring. This information undermines the
prosecution’s star witness and goes to the heart of the charges
brought against Kohring. The prosecution’s failure to timely
disclose this information amounts to a reckless disregard for
its constitutional obligations under Brady/Giglio.
Despite these egregious violations of basic prosecutorial
responsibilities, the prosecution insists that Kohring’s trial
was justly conducted and his conviction fairly obtained. The
prosecution’s refusal to accept responsibility for its misconduct
is deeply troubling and indicates that a stronger remedy
is necessary to impress upon it the reprehensible nature of its
acts and omissions. See Chapman, 524 F.3d at 1087 (“[W]e
[have] made clear that in determining the proper remedy for
prosecutorial misconduct, we must consider the government’s
willfulness in committing the misconduct and its willingness
to own up to it.” (quoting United States v. Kojayan, 8 F.3d
1315, 1318 (9th Cir. 1993) (punctuation omitted))). In this
case, dismissal of the Superceding Indictment is justified not
only as a deterrent but to release Kohring from further
anguish and uncertainty.
I understand, as noted by the majority, that the government
undertook certain after-the-fact amends, such as corrective
action within the Public Integrity Section, installing a new
prosecution team, and withdrawing its opposition to Kohring’s
request to be released on bail pending resolution of our
remand to the district court. None of these actions, however,
cure what happened to Kohring during his trial. I feel strongly
that, if one looks closely at what is actually at stake in this
case — ensuring a fair trial for Victor Kohring — the government
has failed to make proper amends. For these reasons, I
would exercise our supervisory authority to dismiss the
Superceding Indictment with prejudice.
