Years ago, I wrote this post about when evidence of an officer’s prior misconduct must be disclosed by the prosecution as material impeachment information under Giglio v. United States, 405 U.S. 150 (1972). The Fourth Circuit recently decided a case on point. This post discusses the Fourth Circuit case and other recent authority. In essence, it updates my previous post.

The new Fourth Circuit case. The new case is United States v. Banks, 104 F.4th 496 (4^th Cir. 2024). Phil Dixon previously summarized it here. A timeline of the pertinent events in that case, with some of the details being drawn from the district court opinion, is as follows:

• 2009: Baltimore police officer Ivo Louvado and two other officers seize three kilograms of cocaine during a drug investigation, sell the cocaine, and pocket the proceeds.
• 2010: Louvado is assigned to work with an ATF task force.
• 2015 or earlier: State and federal law enforcement agencies begin investigating the Murdaland Mafia, a Bloods-affiliated street gang in Baltimore.
• 2016: Louvado’s ATF task force joins the investigation.
• 2016-17: Louvado participates in the investigation. He signs several search warrant and wiretap applications. Only twice does he undertake investigative activities outside the presence of other officers. One is a brief surveillance observation of a suspect’s home. The other is a search of an informant before a controlled buy, though the buy itself was monitored by other officers.
• 2016-17: Multiple members of the Murdaland Mafia are indicted on federal drug and racketeering charges.
• July 2017: A Baltimore officer being investigated for corruption – an investigation that was generally separate from the Murdaland Mafia case – admits that he and several other officers stole money during the execution of a search warrant in 2009. He suggests that Louvado may have stolen money as well, noting that shortly after the search, Louvado bought a boat. Corruption investigators obtain Louvado’s financial records, which do not show an influx of cash in 2009.
• March 2018: A bail bondsman tells corruption investigators that he heard that Louvado “got proceeds” from the 2009 search.
• Spring 2019: The Murdaland Mafia trial begins, with five defendants being tried jointly. Louvado is not a prosecution witness.
• April 2019: Three weeks into trial, a cooperating suspect tells prosecutors that he saw Louvado steal the drugs in 2009. The US Attorney’s Office decides that the information concerning Louvado is not Giglio information subject to disclosure because Louvado was not a trial witness and did little independent or unverified investigation in the Murdaland Mafia case. The office is also concerned about disclosing information while the corruption investigation is ongoing.
• Later in 2019: The Murdaland Mafia trial ends with all five defendants being convicted. The leader of the enterprise receives a sentence of life in prison, and the other defendants are sentenced to between 18 and 30 years.
• 2020: Louvado is charged with lying to investigators about the drug theft. He pleads guilty.
• 2022: The Murdaland Mafia defendants move for a new trial based on the Government’s failure to disclose evidence of Louvado’s wrongdoing. The district court denies the motion.
• 2024: The Fourth Circuit affirms the district court.

Why wasn’t the evidence “material”? The defendants asked for a new trial under Giglio and under Fed. R. Crim. P. 33, which allows a court to order a new trial when the interests of justice so require. The Fourth Circuit noted that both theories require the defendants to show that evidence of Louvado’s misconduct was “material,” but the court determined that it was not. The court explained its decision as follows:

• There was no evidence that Louvado engaged in misconduct in this case. The defendants did “not identify any evidence that Louvado manufactured . . . evidence against them . . . . Nor do they argue that the affidavits or applications Louvado signed contained any false statements or omissions bearing directly on the probable-cause determination needed to grant the requests.”
• The type of misconduct that Louvado engaged in was not closely tied to his honesty or willingness to fabricate evidence, nor did the defendants “assert that he had a history of that type of misconduct in other cases.”
• Louvado’s role in the current case was “minor.” He was not a trial witness, and during the investigative stage, he was almost always accompanied by other officers whose credibility was not in question.

Other cases. The district and circuit court opinions cite several other cases that may be of interest to people looking into this area of law. I’ve briefly summarized the cited cases here:

• United States v. Robinson, 627 F.3d 941 (4^th 2010). The defendant was convicted of federal drug and gun charges. He moved for a new trial, alleging that the government had failed to disclose that four officers involved in his case had committed misconduct, including using controlled buy money to buy alcohol, “improperly dispos[ing] of cocaine purchased by an informant,” and drinking alcohol purchased in underage alcohol sale operations. The district court dismissed a handful of counts but left most of the defendant’s convictions in place. The Fourth Circuit affirmed. The suppressed evidence was not material because it “did not relate to Robinson’s case” and because the officers’ testimony was corroborated by “other law enforcement officers and more than a dozen co-defendants or cooperating witnesses . . . and . . . physical evidence.”
• United States v. Fisher, 711 F.3d 460 (4^th 2013). In this “extraordinary case,” a divided panel of the Fourth Circuit held that a defendant’s guilty plea to drug and gun charges was rendered involuntary by the prosecution’s failure to disclose that the lead investigator had lied in his application for a search warrant for the defendant’s residence – a warrant that resulted in the discovery of the key evidence in the case. The application asserted that the officer had received detailed incriminating information from a specific witness, but the officer later acknowledged that the witness had “no connection with the case.” The false attribution may have been because the officer was “splitting reward money” with the identified informant. The officer subsequently claimed that a different informant had provided incriminating information about the defendant, but even if the officer was telling the truth about the existence of the alternate informant, it was not clear whether the alternate informant had provided all the information contained in the affidavit. Because the court found that the defendant’s plea was involuntary based on “impermissible government conduct,” it did not reach the defendant’s allegation that the prosecution had committed a Brady violation by failing to disclose the officer’s misconduct.
• United States v. Jones, 399 F.3d 640 (6^th 2005). A defendant was charged with, and convicted of, federal drug and gun offenses. He appealed, alleging a Brady/Giglio violation based on the prosecution’s failure to disclose evidence that the officers who investigated him had engaged in misconduct in other cases, including the “use of seized drug funds for personal use; use of seized property for personal use; giving false statements in an internal investigation; . . . lying to a judge; cheating on an employment test; and failure to report numerous professional violations by fellow officers, including the planting of drugs on the property of a criminal suspect.” The reviewing court noted that the evidence against the defendant was overwhelming and concluded that the evidence of misconduct was therefore not material, and also was insufficient to support a potential motion for a new trial based on newly discovered evidence.

In the course of researching this post, I encountered a few other cases that are pertinent despite not being cited in Banks or in the district court opinion. See State v. Saddler, __ N.C. App. __, 903 S.E.2d 231 (2024) (an officer who testified against the defendant in a murder case was “under investigation for embezzlement at the time of the trial”; the prosecution’s failure to disclose this was not prejudicial given the other evidence against the defendant and the fact that the officer’s testimony did not address the central issue in the trial, which was the identity of the shooter); United States v. Laines, 69 F.4th 1221 (11^th Cir. 2023) (an officer who testified against the defendant in a drug and firearm prosecution was the subject of multiple internal investigations, including for excessive force and falsifying a report; the prosecution did not disclose the alleged misconduct, but it was not material given the strong independent evidence of the defendant’s guilt); Milke v. Ryan, 711 F.3d 998 (9^th Cir. 2013) (granting habeas relief and vacating a murder conviction where prosecutors did not disclose an officer’s prior sexual abuse of a female motorist nor multiple prior instances in which the officer had lied under oath; the murder case was a “swearing contest” in which the officer testified that the female defendant admitted guilt and the defendant denied it).

Is the procedural posture important? The majority of the cases discussed above, including Banks and Robinson, conclude that prosecutors were not required to disclose evidence of officers’ wrongdoing in unrelated matters because the evidence was not material. That was so even where the misconduct was severe or involved dishonesty. However, a prosecutor considering whether to disclose such evidence prior to trial may want to err on the side of caution for several reasons. First, many of the cases rely on the strength of the evidence against the defendant to find a lack of materiality – but it is hard to know before a trial takes place whether the evidence will later be deemed overwhelming. Second, the cases discussed above arose after conviction, and the courts’ desire to preserve finality and avoid burdensome retrials may have impacted the courts’ analysis. In Robinson, for example, the court expressly noted the “added cost and delay of a new trial” as a reason to be cautious in granting defendants relief based on evidence of officers’ misconduct. Third, a prosecutor’s ethical disclosure obligations under N.C. R. Prof. Cond. 3.8 may be more extensive than due process requires. For example, the rule contains no express requirement of materiality. Finally, if the defendant learns of the misconduct during trial, the resulting brouhaha may slow the prosecution’s roll and may reduce the court’s confidence in the prosecutor.

Even with that caveat, the cases cited in this post set a high bar for materiality. I think my previous post has held up pretty well, and the factors discussed in that post, including the recency, nature, and severity of the officer’s misconduct are still the right factors to consider. But the cases discussed in this post illustrate how much those factors may need to align for evidence of prior misconduct to be deemed material.

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