Appellant James David Roberts was convicted after jury trial of three counts of sale of a controlled substance and one count of trafficking a controlled substance. The state introduced evidence that Roberts sold cocaine on four occasions to an undercover police officer who had been introduced to Roberts through a confidential informant (CI). Roberts claimed entrapment, alleging that the CI pressured him, by fabricating an elaborate story, into selling cocaine when he had no predisposition to do so.
Roberts moved for a pre-trial order compelling the state to disclose the identity of the CI who arranged the initial "buy," and compelling the state to disclose all information in the possession of the state pertaining to the CI, including specifically the "confidential informant file" (CI file) allegedly compiled by and in the possession of the Las Vegas Metropolitan Police Department (LVMPD). Roberts claimed that the CI file contained information regarding the CI's background, employment and communications that would support an entrapment claim.
Although the state disclosed the identity of the CI, one William Albert Noel, it refused to tender the CI file. After the state refused to produce the CI file, Roberts sought an order dismissing the grand jury indictment for failure to make discovery and Brady
We conclude that once a defendant has articulated a specific basis for claiming materiality of particular evidence that it seeks, that the prosecutor bears the burden of avoiding disclosure by seeking in camera review. We therefore conclude that, in the instant case, the judge could not have ruled correctly on Roberts's Brady claim without having first reviewed the file, which he did not do. Thus, we remand this case to the district court for the limited purpose of conducting an in camera review of the CI file to determine whether it contains evidence material to Roberts's entrapment defense. We further direct the court to make specific findings of fact and conclusions of law with regard to the material in the CI file, and we direct the clerk of the district court to certify those findings and conclusions to this court for ultimate disposition of this appeal. We now address in more detail the factual background of this case and the legal standard for analyzing claimed Brady violations.
On December 14, 1989, a grand jury indicted Roberts on three counts of sale of a controlled substance, cocaine, and one count of trafficking a controlled substance, cocaine. At the grand jury proceeding LVMPD Officer Roy Chandler testified that a confidential informant introduced Chandler to Roberts on July 10, 1989 at Teddy's, a Las Vegas bar, for the purpose of buying cocaine. Chandler bought cocaine from Roberts on that occasion and on three additional occasions in July 1989. The CI was present at only the first meeting.
On April 29, 1991, Roberts moved for an order requiring the state to reveal the identity of the CI. Roberts supported his motion with an affidavit claiming that the CI had concocted an elaborate story to pressure Roberts into dealing cocaine to help the CI
Roberts further swore that on July 10, 1989, he was persuaded by the CI to meet the customer at a Las Vegas bar on Teddy Drive. Roberts also swore that "all of [his] actions during the relevant period were done solely for the benefit of the [CI] and for the protection of [the CI's] life," and that "[o]nly after [Roberts] became convinced by the [CI] that [the CI] could not apply to the police for protection and that [the CI] would surely be killed by his drug customer did [Roberts] seek to help the [CI]." Roberts swore that the CI could be cross-examined on these facts and aid his entrapment claim. Roberts also swore that he had made a "diligent effort to learn the identity of the informant and has been unable to locate him." Roberts did not reveal that he had known for years the man who introduced him to Chandler at the bar, and that he knew his name and address, items later revealed in arguing Roberts' motion before the district court judge.
On May 29, 1991, the district court judge orally granted Roberts' motion, ruling that "[t]he motion to require the state to reveal the identity of the [CI] is granted." He then signed a written order, which required the state to disclose the true identity of the CI and to provide all relevant discovery regarding the CI, including his last known address. On June 7, 1991, Chandler telephoned Roberts to disclose to him the name of the CI, and he disclosed Noel's name. Neither Chandler nor the district attorney's office provided any additional or written information.
On June 18, 1991, the district court judge heard arguments regarding the state's failure to disclose additional information. The judge ruled orally at the close of arguments that, "Okay. The order is this, that you [Roberts] stay away from the [CI] or [the CI's] wife, you personally, and the order also is that you [the state] give the name and current address that you have to [Roberts' attorney]." After the judge's oral ruling, there was discussion about Roberts intimidating the CI, and Roberts' attorney stated, "But, in any event, we would like to have the C.I. file, we would like to have a rap sheet, we would like to have any criminal involvement that he may have had on or about or surrounding the beginning of this incident." The judge did not respond to the request, but asked, "How long will it take for you to be ready to go to trial?" The judge did not modify his oral order.
The judge then signed a written order on July 2, 1991, prepared by Roberts' counsel, directing "that the District Attorney shall forthwith identify the `confidential informant' used by the police, and provide Defendant's counsel with full discovery of all information in their files and in the Las Vegas Metropolitan Police Department's files regarding the `confidential informant', including the file known as the `CI' file, and a copy of the `confidential informant's' `rap' sheet." The state produced Noel's "rap sheet," but refused to produce the CI file.
On September 12, 1991, Roberts filed a Motion to Dismiss the Indictment for Failure of the State to Make Discovery and Brady Disclosures. In its opposition, the state noted that the court had earlier ordered in its oral ruling only the disclosure of the name and address of the CI, and it noted that it had provided Roberts with the CI's "scope" (apparently the "rap sheet"). The state argued that it should not be required to reveal a file containing information "for all cases that the informant has been involved with whether pending or not which are included in his [CI] file." Noel had worked for LVMPD for over nine years.
On September 16, 1991, the district court judge heard arguments on Roberts' Motion
The district judge did not review the file to determine if it contained information material to Roberts' defense.
Roberts was tried and Chandler and Noel testified for the state at the trial. Chandler testified that Noel informed on Roberts for money, and not to "work off" charges that were pending or threatened at the time Noel was informing. Chandler further testified as follows: Noel called Chandler on July 10, 1989 and told Chandler that Roberts could deal in ounces of cocaine. Noel introduced Chandler to Roberts later that day at "The Place," a bar in Las Vegas on Teddy Drive. After the introduction, Roberts suggested that the men go outside to a car. The three went to Chandler's car, and Roberts pulled a baggie out of his pocket; Chandler gave Roberts $350, and Roberts gave Chandler the baggie containing a quarter ounce of cocaine. Roberts was familiar with drug terminology and, in Chandler's opinion, was experienced in the type of transaction the two were engaged in. Roberts suggested that he and Chandler deal with each other directly in the future instead of going through Noel, because Noel had added $50 to the price of the cocaine for himself, causing Chandler to pay $350 instead of $300 for the amount of cocaine he was buying. After the transaction, Chandler paid Noel $100 for introducing him to Roberts. Over the following week, and on three separate occasions, Chandler purchased three quarters of an ounce, an ounce and half an ounce of cocaine from Roberts for $750, $1,000 and $500, respectively. Roberts called Chandler on two of these occasions. Noel was not present at any of the later "buys," and each of these transactions was surveilled by the LVMPD surveillance team. After these transactions, Roberts called Chandler and told him that he suspected him to be "a cop or a snitch."
Noel testified that he had known Roberts since 1979, when Roberts recruited Noel to help Roberts sell Quaaludes. Noel and Roberts lived together as roommates in 1983 or 1984. In 1985, Roberts helped Noel get a job at an adult nightclub, where Roberts was a security guard. Noel was later fired from this club after overcharging customers in credit card transactions. In 1989 Noel and Roberts came into contact again and Roberts asked Noel to help him sell a pound of cocaine. Noel agreed and called Chandler to inform. Noel also stated that Roberts had sex with Noel's wife when Noel was in the hospital after a car accident, causing "bad blood."
Roberts took the stand and related the story in his affidavit. Roberts was convicted of three counts of sale of a controlled substance and one count of trafficking a controlled substance. The judge sentenced Roberts to four concurrent twenty-year terms, plus a minimum $50,000 fine on the trafficking conviction. Roberts now appeals the district court judge's denial of his motion to dismiss the indictment for failure of the state to make discovery and Brady disclosures.
Roberts sought dismissal of the indictment below, and seeks reversal of his conviction on appeal, for the failure of the state to make Brady disclosures upon a specific request. Neither Roberts, the lower court nor this court can know whether Brady material exists, because the state refused to produce the CI file, it has never been reviewed and it was not made part of the record. Nonetheless, we set forth the law governing Brady disclosures, because, as we have indicated, we believe that remand to the
In addition, although this court has had occasion to discuss a then-recent United States Supreme Court decision in this area of the law,
A prosecutor must disclose evidence favorable to an accused when that evidence is material either to guilt or to punishment. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963) (suppression of evidence after specific request); United States v. Agurs, 427 U.S. 97, 110-112, 96 S.Ct. 2392, 2400-01, 49 L.Ed.2d 342 (1975) (failure to disclose in the absence of a request); United States v. Bagley, 473 U.S. 667, 674, 105 S.Ct. 3375, 3379, 87 L.Ed.2d 481 (1985) (nondisclosure in absence of request or after broad request).
The Supreme Court of the United States first discussed, in Agurs, 427 U.S. at 103-04, 112, 96 S.Ct. at 2397-98, 2401-02, the three situations that it envisioned under Brady. There it stated:
(Emphasis added). Lower federal courts and state courts interpreted Agurs to adopt a "might have affected the outcome of trial" standard of materiality in "specific request" cases and these courts analyzed such cases under that standard. See 2 LaFave & Israel, Criminal Law § 19.5 at 539 (noting that courts "generally looked to this language in assessing materiality ... in request-cases" and citing federal and state cases.)
The Supreme Court later unified its approach and held that, in all cases except the prosecutor's knowing use of perjured testimony, evidence is "material" if there exists a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different. Bagley, 473 U.S. at 682, 685, 105 S.Ct. at 3383, 3385; Pennsylvania v. Ritchie, 480 U.S. 39, 57, 107 S.Ct. 989, 1001, 94 L.Ed.2d 40 (1986). A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. Bagley, 473 U.S. at 678, 685, 105 S.Ct. at 3381, 3385; Ritchie, 480 U.S. at 57, 107 S.Ct. at 1001. The Court found this "[single] test for materiality sufficiently flexible to cover the `no request,' `general request,' and `specific request' cases of prosecutorial failure to disclose evidence favorable to the accused[.]" Bagley, 473 U.S. at 682, 105 S.Ct. at 3383.
In Marshall, the New Jersey Supreme Court expressly rejected Bagley in the specific request situation, and retained the "might have affected the outcome" test as it had been interpreted and applied in New Jersey courts. That court recognized that the
586 A.2d at 192 (emphasis added) (citations omitted). The court expressly retained this "real possibility" standard, which it attributed to Agurs, instead of adopting Bagley. Id.
In Vilardi, the New York Court of Appeals expressly rejected the Bagley test, finding it inadequate to address the concerns presented by prosecutorial nondisclosure in the face of a specific request. 556 N.Y.S.2d at 523, 555 N.E.2d at 920 ("declin[ing] to abandon... accepted principles in order to conform to the lesser protections of Bagley.") Judge Kaye wrote for the court that
Id. The court stated that it had "long emphasized that our view of due process in this area is, in large measure, predicated both upon `elemental fairness' to the defendant, and upon concern that the prosecutor's office discharge its ethical and professional obligations." Id. at 522, 555 N.E.2d at 919 (citations omitted). Instead of adopting the Bagley standard, the Vilardi court approved of and adopted the lower New York court's test: that nondisclosed evidence is material if there exists a "`reasonable possibility that [failure to disclose the material] contributed to the defendant's conviction.'" 556
The Vilardi court recognized (as the Supreme Court had also recognized in Bagley) that nondisclosure after a specific request reasonably implies to the defendant that the requested evidence simply does not exist, and that the defendant may then change or abandon trial strategy in reliance on the prosecutor's nondisclosure. Id. at 521, 555 N.E.2d at 918; see also Bagley, 473 U.S. at 682-83, 105 S.Ct. at 3383-84.
In Bagley, Justice Blackmun acknowledged this danger, but concluded that a separate standard was not necessary because under the single standard
473 U.S. at 683, 105 S.Ct. at 3384. Justice Stevens, the author of Agurs, bitterly disputed this proposition, noting that "[b]ecause th[e] constitutional duty to disclose [evidence when no request has been made] is different from the duty described in Brady, it is not surprising that we developed a different standard of materiality [for no-request cases] in the Agurs context." 473 U.S. at 711, 105 S.Ct. at 3398 (Stevens, J. dissenting) (emphasis in original). He later stated that
Id. at 714, 105 S.Ct. at 3400 (citation omitted). Apparently, Justice Stevens would have analyzed nondisclosure after a specific request under the same test used to analyze the harm done by a prosecutor in knowingly presenting perjured testimony. He stated, "Bagley's conviction therefore must be set aside if ... there is `any reasonable likelihood' that it could have affected the judgment of the trier of fact." Id. at 713, 105 S.Ct. at 3399.
The Ninth Circuit, reconsidering Bagley on remand under the new Bagley standard, found that nondisclosure of evidence that would have been used to impeach the government's key witnesses in an effective manner undermined confidence in the outcome of Bagley's trial, and was therefore material under the new standard. See Bagley v. Lumpkin, 798 F.2d 1297 (9th Cir.1986).
We note that Roberts claims that the CI file contains certain information that would tend to establish that Noel was working not only for periodic compensation, but also for leniency in criminal prosecutions. In addition, he alleges that the CI file will contain information on Noel's background and specifically the communications between Noel and Chandler, or other LVMPD investigators, that will corroborate much of Roberts' sworn statement and provide information that would allow effective impeachment of Noel. If the district court judge concludes, after reviewing the CI file on remand, that the file contains any such information, and that such information undermines his confidence in the outcome of trial, it would certainly require disclosure of the file under Bagley.
However, we also must determine whether Nevada will follow Bagley or will instead construe the due process clause in the Nevada Constitution, see Nev. Const. art. 1, § 8, to require a standard more favorable to the accused in the "specific request" situation. Here, Roberts made a specific Brady request well in advance of trial. The district court judge held three hearings to determine what information, if any, should be disclosed, and he signed a formal court order requiring disclosure of the CI file. After all of this, the prosecution failed to produce the file or to submit it to the court for in camera review.
In the instant case, Roberts claimed that Noel's CI file contained information on Noel's employment as an informer and on Noel's communications to Chandler that would bear directly on Noel's actions and motivations. Roberts sought the information to effectively cross-examine and impeach Noel. He also maintained that the information would factually support his entrapment defense.
Roberts supported his request for the file with an affidavit claiming that Noel recruited Roberts over a period of weeks. Had the relevant portions, if any, of the CI file corroborated this, Roberts may have been able to substantiate his claim of entrapment. At trial, Chandler testified to events that occurred after Noel made a phone call to Chandler on the date of the initial cocaine "buy."
In addition, Chandler and Noel both testified that Noel worked for money only, and not for leniency in criminal prosecutions. However, Noel was arrested for possession of a controlled substance on January 4, 1990. Although this arrest occurred six months after the "tip," it was still an offense that was charged before trial. Roberts claimed that Noel was not being prosecuted for that charge because of his value as a testifying informant. Indeed, two years later Noel's "rap sheet" did not show a conviction stemming from that arrest. Chandler only testified that Noel was not working off charges during the time that Noel was working for LVMPD as an informant. The file may have confirmed or disproved Roberts' claim that Noel was not subject to prosecution for providing favorable trial testimony at a later time. Accordingly, the CI file may contain impeachment evidence favorable and material to Roberts' defense in this regard.
In Bagley, the Court noted that the purpose of Brady was not to "displace the adversary system ... but to ensure that a miscarriage of justice does not occur." Id. at 675, 105 S.Ct. at 3380. It further noted that "the prosecutor is not required to deliver his entire file to defense counsel, but only to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial...." Id. (footnote omitted). We conclude that if evidence substantiating Roberts' entrapment claim and allowing effective impeachment of Noel is contained in the CI file, and if Roberts was denied access to that information, then he was deprived of a fair opportunity to present his only legitimate defense, and that he was therefore not afforded a fair trial. We therefore remand this case to the district judge for the limited purpose of reviewing the CI file. Only then can he rule whether matters in the file are favorable and material to Roberts' defense under the standard we have articulated in this opinion.
The state claims that Roberts may not challenge on appeal the court's failure to conduct an in camera review of the CI file, because Roberts failed to request that particular procedure below. For this proposition, it cites Hubbard v. State, 618 P.2d 553, 555 (Wyo.1980). In the instant case, however, Roberts is not challenging only the district court's failure to conduct an in camera review, although he is arguing that such a procedure is appropriate. Roberts' broader claim is that the state committed a constitutional violation when it failed to disclose favorable and material impeachment evidence after a specific request for such evidence. The district court judge could only have ruled properly on this claim if he had viewed the file. Furthermore, because we conclude that it is the prosecutor's affirmative duty to present the information for in camera review once particular evidence has been identified and a specific materiality claim articulated, it should not matter whether the defendant formally requests the in camera review. As the Supreme Court has stated, once an accused states a substantial basis for claiming materiality, "it is reasonable to require the prosecutor to respond either by furnishing the information or by submitting the problem to the trial judge." Agurs, 427 U.S. at 106, 96 S.Ct. at 2399. Accordingly, we conclude that once a defendant has articulated a substantial basis for claiming materiality in seeking particular evidence, the prosecutor bears the burden of avoiding discovery by seeking in camera review.
We have considered the state's arguments that Nevada's statutory criminal discovery provisions prohibit the disclosure of the CI file. We decline to discuss the state's claims, however, because we conclude that the statutory provisions, even if they had the effect urged by the state, must yield to the constitutional Brady rule as articulated herein.
Based on the foregoing, we remand the instant case to the district court for the limited purpose of conducting an in camera review of the "CI file"—whether known by