Kott

MEMORANDUM *

Defendant Peter Kott appeals the district court’s denial of his motion to vacate his conviction and dismiss the indictment on the basis of alleged violations of Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963). Because the factual and procedural background is familiar to the parties, we need not recount it here. We conclude that the newly-disclosed information, when viewed collectively, is material and that the prosecution violated Brady by failing to disclose it. According *737 ly, we vacate Kott’s conviction and remand to the district court for a new trial.

I

For newly-disclosed evidence to constitute a Brady violation: “(1) the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued.” United States v. Williams, 547 F.3d 1187, 1202 (9th Cir. 2008) (citing Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936 , 144 L.Ed.2d 286 (1999)) (alterations and internal citation marks omitted). There is no doubt, as the district court properly held, that the…

concurring in part and dissenting in part:

I concur in the majority’s memorandum to the extent it establishes that the prosecution suppressed evidence favorable to the defense in violation of Brady and Gig-lio and that the suppression prejudiced Kott. I respectfully dissent, however, from the majority’s conclusion that there is insufficient evidence that the prosecution “acted flagrantly, wilfully, or in bad faith,” *738 United States v. Chapman, 524 F.3d 1073, 1085 (9th Cir.2008), such that the exercise of this court’s supervisory authority to dismiss the indictment is not warranted.

The principles guiding the exercise of this court’s supervisory powers are set forth in my dissent in United States v. Kohring. One of those principles instructs that, “[i]n 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.” Chapman, 524 F.3d at 1087 , quoting United States v. Kojayan, 8 F.3d 1315, 1318 (9th Cir.1993).

I am deeply troubled by the government’s lack of contrition in this case. Despite their assurances that they take this matter seriously, the government…

background is familiar to the parties, we need not recount it here. We conclude

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Circuit Rule 36-3. that the newly-disclosed information, when viewed collectively, is material and

that the prosecution violated Brady by failing to disclose it. Accordingly, we

vacate Kott’s conviction and remand to the district court for a new trial.

I

For newly-disclosed evidence to constitute a Brady violation: “(1) the

evidence at issue must be favorable to the accused, either because it is exculpatory,

or because it is impeaching; (2) that evidence must have been suppressed by the

State, either willfully or inadvertently; and (3) prejudice must have ensued.”

United States v. Williams, 547 F.3d 1187, 1202 (9th Cir. 2008) (citing Strickler v.

Greene, 527 U.S. 263, 281-82 (1999)) (alterations and internal citation marks

omitted). There is no doubt, as the district court properly held, that the prosecution

suppressed evidence favorable to the defense. Our inquiry therefore turns on the

third prong. Evidence is prejudicial “only if there is a reasonable probability that,

had the evidence…