Opinion
No. 92-3220. Consolidated with No. 95-3100.
Argued February 2, 1996
Decided May 31, 1996
On Appellee's Petition for Rehearing.
(No. 91cr00527-04)
A.J. Kramer, Federal Public Defender and Neil H. Jaffee, Assistant Federal Public Defender were on the brief for appellant.
Eric H. Holder, Jr., United States Attorney, John R. Fisher and Elizabeth Trosman, Assistant United States Attorneys, were on the brief for appellee.
Before: Edwards, Chief Judge, Wald and Silberman, Circuit Judges.
Opinion for the Court filed Per Curiam.
Contrary to the Government's suggestion, the panel's opinion in United States v. Smith, 77 F.3d 511 (D.C. Cir. 1996), does not hold that a court may not consider the weight of the untainted evidence presented at trial when performing a materiality analysis pursuant to United States v. Bagley, 473 U.S. 667 (1985) and Kyles v. Whitley, 115 S. Ct. 1555 (1995). Rather, the court did no more than determine that the Brady violation at issue here created "a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Kyles, 115 S. Ct. at 1565 (quoting Bagley, 473 U.S. at 682 (Opinion of Blackmun, J.)). In other words, because the members of the panel could not say that, absent the undisclosed evidence, defendant "received a fair trial, understood as a trial resulting in a verdict worthy of confidence," id. at 1566, the matter was reversed and remanded for a new trial.
In short, there is nothing in the panel opinion that intends to foreclose the court from considering the overall strength of the Government's case in making decisions on materiality. The panel's analysis follows directly from the applicable Supreme Court precedent, and there is no issue justifying rehearing. Therefore, the Government's petition for rehearing is Denied.