ORDERS RE MOTIONS UNDER 28 U.S.C. § 2255

Movants/defendants Cliffina Johnson and Frederick Shirley seek summary judgment on their motions under 28 U.S.C. § 2255 to vacate their convictions for conspiracy to bribe a public official and bribery of a public official. The United States has cross-moved to dismiss for lack of jurisdiction and failure to state a claim for relief. The motions have been extensively briefed and orally argued. The court hereby denies the motions.

I. PROCEDURAL HISTORY

On June 9, 1999 Johnson and Shirley were indicted for conspiracy to bribe a public official ( 18 U.S.C. § 371 ) and bribery of a public official ( 18 U.S.C. § 201 (b)(1)(C)) during the period between March and July of 1998. Guilty verdicts were rendered against both defendants on October 2, 2000 following a jury trial. Shirley was sentenced on January 16, 2001 to incarceration for a term of 14 months to be followed by three years of supervised release. Johnson was sentenced on January 21, 2001 and received an identical sentence. Both defendants filed notices of appeal. Johnson’s conviction was affirmed on May 10, 2002 (U.S. v. Johnson, 34 Fed.Appx. 381 (9th Cir.2002)). Shirley apparently withdrew his appeal.

The primary witness against the defendants was Clarence Walker, then a revenue agent with the IRS, who testified with respect to the defendants’ activities leading up to Shirley’s actual payment to him of a bribe. Walker was later discovered to have been involved in separate criminal conduct and he was indicted and convicted of some of the charges against him. Shirley and Johnson contend that if they had been able to cross-examine Walker about this criminal activity at their trial they would have been able to cast substantial doubt about his credibility. The Government’s alleged failure to provide the defense with information about Walker’s criminal conduct is the basis of the mov-ants’ motions to set aside their convictions and sentences.

An investigation of Walker for suspected criminal conduct was commenced on June 27, 2001 based upon information received on June 25, 2001. As a result of the investigation, Walker was indicted on January 24, 2004 for: (1) conspiring from about September 18, 2000 through about March 25, 2002 to aid another to evade currency transaction reporting requirements ( 18 U.S.C. § 371 ); (2) causing a domestic financial institution to fail to file currency transaction reports ( 31 U.S.C. §§ 5324 (a)(1) and (d)(1)); (3) structuring a transaction so a domestic financial institution could evade reporting requirements ( 31 U.S.C. §§ 5324 (a)(3)); and (4) bribery ( 18 U.S.C. § 201 (b)(2)(B) & (C)). Walker was convicted of the first two counts but the jury did not reach a verdict on Counts (3) and (4).

Johnson apparently learned of Walker’s indictment on June 26, 2004. Shirley claims he did not learn of Walker’s indictment until October 11, 2005. However, the Government contends that Shirley was advised of the indictment through his counsel in April 2004.

II. MOVANTS’ CLAIMS AND DEFENSES THERETO

Shirley and Johnson assert the same two claims, specifically: (1) that there was a violation of due process resulting from the failure of the Government to disclose materially impeaching evidence about Walker; and (2) that there was a violation of due process by the Government’s failure to correct Walker’s perjurious statements and material omissions during his testimony. The Government responds and seeks to dismiss Shirley and Johnson’s motions based on essentially four defenses: (1) Shirley’s claim is barred as untimely; (2) Shirley’s claim is based upon derivative entrapment which is not a cognizable defense; (3) Johnson has no claim because she is no longer under a criminal sentence; and (4) the Government has no obligation to produce Brady/Giglio information which it did not possess and of which it was unaware during Shirley and Johnson’s trial. The Government also contends the evidence pertaining to Walker’s acts of misconduct was not material to movants’ convictions.

III. ANALYSIS

A. Timeliness of Shirley’s Claim

The Government contends that Shirley’s claims are untimely because they were not filed within one year after the facts supporting the claims could have been discovered through the exercise of due diligence. Walker was indicted on June 26, 2004 and Shirley did not file his motion until October 11, 2006. Under 28 U.S.C. § 2255 (4) a motion to set aside a conviction must be filed within one year of “the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.” The Government prosecutor claims he spoke with Shirley’s trial attorney in early 2005 and told him about Walker’s indictment. The Government also claims that Walker’s indictment received significant publicity and that Shirley’s co-defendant Johnson learned of the indictment from that publicity implying that Shirley should have also.

Shirley claims that he first learned of Walker’s indictment when he contacted the Federal Public Defender’s Office in the second week of October 2005 to inquire about getting time off his supervised release term. Shirley completed his federal sentence in March 2004 but then had to serve a state sentence for a parole violation. Shirley was released from state custody approximately September 21, 2005. Shirley declares that his only contact with his federal trial attorney after he was sentenced concerned an issue of whether or not he had fully served his federal sentence. He contacted his attorney through his wife and did not speak with him directly. He had no retainer agreement with his attorney at this time and learned nothing about Walker’s indictment.

Shirley’s trial attorney declares that he never talked to the Government about Walker’s indictment. He also states that his representation of Shirley in the subject federal case ended upon Shirley’s being sentenced in the case. His only other involvement in the federal matter was a phone call to the Government he made as a courtesy to his former client to see if his federal sentence had been correctly calculated or could be shortened by one day.

The court concludes that Shirley cannot be said to have failed to use due diligence in discovering the basis for his section 2255 motion because he had no reason to suspect that Walker would be or had been indicted. Shirley was incarcerated at the time the indictment was returned and, therefore, did not have the access to news that he might otherwise have heard. Even if his trial attorney was informed of Walker’s indictment, there is no evidence this information was passed on to Shirley and, since that attorney no longer represented Shirley, the attorney’s knowledge cannot be attributed to Shirley.

B. Shirley’s Claim Is Not Based upon Derivative Entrapment

The Government contends that Shirley’s motion is predicated on the theory that Shirley was entrapped by other than a Government agent, specifically by Johnson. In other words, Shirley is now asserting a claim of derivative entrapment which is not a defense. United States v. Thickstun, 110 F.3d 1394, 1399 (9th Cir.1997). “Derivative entrapment occurs when an entrapped individual induces the defendant to commit a crime.” Id. However, Shirley is not claiming that he was en trapped by Johnson but that he was entrapped by Walker. The entrapment was accomplished, according to Shirley, by Walker’s threats of dire and untrue consequences that would befall to Shirley if he did not agree to bribe Walker. The contention that Walker allegedly used Johnson as a conduit to deliver inducing information to Shirley does not make the case one of derivative entrapment. If the evidence supports Shirley’s theory that he was unlawfully induced by Walker, Shirley is correct that the Government’s conduct constituted entrapment and not derivative entrapment.

C. Johnson Has Standing to Assert Her Claim

The Government argues that the court lacks jurisdiction to grant relief to Johnson because she is no longer in custody. The Government relies upon the language in section 2255 which provides for potential relief only to “[a] prisoner in custody under sentence of a court” ( 28 U.S.C. § 2255 ) and United States v. Kwan, 407 F.3d 1005, 1009 (9th Cir.2005) (motion under § 2255 may only be filed by person in government custody). There is no question but that a prisoner must be under the restraint of a sentence in order to file a section 2255 motion. But what the Government overlooks is that the custody requirement is determined as of the date of filing. In Carafas v. LaVallee, the Supreme Court held that once jurisdiction has attached in the district court “it is not defeated by the release of the petitioner prior to completion of the proceedings on such application.” 391 U.S. 234, 237 , 88 S.Ct. 1556 , 20 L.Ed.2d 554 (1968); see United States v. Bryson, 981 F.2d 720, 726 (4th Cir.1992); see also United States v. Hearst, 638 F.2d 1190 (9th Cir.1980).

Johnson filed her motion on August 16, 2004 when she was still serving her sentence. Therefore, her motion was timely. Further, she is still suffering collateral consequences of her conviction such as the inability to vote.

D. The Government’s Brady/Giglio Obligation Is Continuing

The Government contends that it had no duty to turn over information concerning Walker’s wrongdoing because it did not learn of any of that information until June 25, 2001 at the earliest. Johnson and Shirley had been sentenced in January 2001. Therefore, the information was not available for use at either the trial or sentencing. See Sanchez v. United States, 50 F.3d 1448, 1453 (9th Cir.1995) (“[W]e find that the government was not aware of the alleged Brady material. The Government has no obligation to produce information which it does not possess or of which it is unaware.”). Johnson and Shirley respond by contending that the information that Walker knew should be imputed to the Government. If not, in the alternative, the Government at least had an obligation to turn over the information when it first learned of it so that it could have been used in a motion for a new trial.

Johnson and Shirley claim that Walker should be considered part of the prosecution thus obligating the Government to turn over to the defense information concerning Walker’s criminal activities and lies during trial. The defense’s argument is predicated upon the fact that Walker was part of the prosecution team because he worked for the agency investigating Shirley and he was a key member of the prosecution. Although Walker was a critical witness for the Government, the court finds that he was not part of the prosecution for Brady purposes. Walker was not a law enforcement officer, nor was he responsible for making prosecutorial decisions with respect to Johnson and Shirley. The court has found no case suggesting that a Brady obligation arises when a cooperating Government witness, who was employed by the Government, lies without the knowledge of those prosecuting the case. See Sanchez, 50 F.3d at 1453 . Therefore, the court finds Walker’s knowledge cannot be imputed to the Government thus triggering a Brady obligation.

Johnson and Shirley’s contention, however, that the Government had an obligation to turn over the information it learned about Walker’s criminal wrongdoing at the time it first learned about that wrongdoing has merit. In Thomas v. Goldsmith, 979 F.2d 746 (9th Cir.1992) the court held that a Brady obligation continues through post-trial proceedings. At the time that the Government learned of Walker’s wrongdoing and lies, the information could have been used by the defense to support a new trial motion under Fed.R.Crim.P. 33. At that time, the defense still had ample time to make a motion for new trial within the three-year limitation period. See Fed.R.Crim.P. 33(b)(1).

The Government correctly points out that in Thomas , the court only held that the continuing duty to disclose applied in a post-trial habeas corpus proceeding and argues that Thomas should not be read to suggest a blanket post-conviction obligation to disclose. The Government further points out that the information here was provided before the section 2255 motions were filed. The Government’s argument, however, overlooks the fact that at the time the information was learned by the Government, Shirley and Johnson could have made timely motions for a new trial. Therefore, the court finds that the Government had an obligation to inform Johnson and Shirley of the information it learned about Walker’s alleged wrongful conduct and lies when it first learned the information so Johnson and Shirley could have used that information as a basis for a motion for new trial.

E. Materiality of the Failure to Disclose

1. Definition and Test of Materiality

The critical question is whether the failure to disclose the information about Walker was material. “[E]vidence impeaching the credibility of a key government witness, as well as exculpatory to defense, falls under the Brady doctrine.” United States v. Shaffer, 789 F.2d 682, 687 (9th Cir.1986). Failure to disclose information, however, only constitutes a Brady violation if the requested information is “material,” that is, the evidence undermines confidence in the outcome of the trial. United States v. Bagley, 473 U.S. 667, 678 , 105 S.Ct. 3375 , 87 L.Ed.2d 481 (1985).

2. Lack of Materiality of Impeachment Evidence As to Case Against Defendant Shirley

The Government asserts the failure to disclose the impeaching evidence concerning Walker was not material because tape-recorded evidence left no question as to Shirley’s guilt. Shirley relied at trial solely upon an entrapment defense. The evidence was undisputed that on April 28, 1998 Shirley paid $1,000 as an initial payment on a bribe to Walker to create phony IRS tax audit records clearing Shirley of his failure to file income tax returns for the years 1987-1996. A videotape showed Shirley paying $6,000 in $100 bills on May 21, 1998 as additional payment of the bribe. Shirley did not testify at trial nor has he filed any declaration in these proceedings claiming he was entrapped. Therefore, the question is whether the defendant Shirley’s inability to test Walker’s credibility by cross-examining Walker about his criminal conduct undermines confidence in Shirley’s conviction. Does it raise any reasonable likelihood that the jury was wrong in finding that Shirley was either pre-disposed to commit the crime of bribery or at least was not induced by government agents to do so?

The evidence about Walker is disturbing, particularly since the Government portrayed him as an ethical IRS Revenue Agent. However, a review of the undisputed evidence leaves no reasonable doubt as to Shirley’s guilt and that the inability to challenge Walker’s credibility based upon the new evidence was harmless. The critical conversations Walker had with Shirley were recorded.

On March 27, 1998 Walker and Shirley met for the first time. Walker, Shirley and Johnson met at the Coleman Still restaurant (or according to Johnson the meeting was at the Cozy Inn) where Walker explained to Shirley what the tax notice he had received from the IRS meant, told Shirley that he faced serious allegations, warned Shirley of potential adverse consequences and advised that the IRS agent involved was very thorough. Shirley expressed his dislike of the IRS agent and his frustration with the IRS and his problem.

At trial Johnson testified about specific statements that were on the tape of this March 27 meeting.

Trial transcript at 1267-68 (“Tr. at _”). Walker made no suggestion at the meeting that he would fix Shirley’s taxes or in any way solicit a bribe or intimate that a bribe should be offered to him.

Walker and Johnson testified to different versions of what happened between the March 27,1998 meeting and April 28,1998, when the parties met at the Coleman Still. During this interim period Johnson claims that Walker informed her that he was going to solicit a bribe from Shirley and then insisted that she assist him in doing so. She claimed that these discussions with her apparently were not recorded and that Walker said he was going to charge Shirley $10,000. Walker, on the other hand, claimed that Johnson had suggested to him in early April that Shirley would pay a $10,000 bribe.

Walker’s next direct communication with Shirley took place on April 28, 1998 at the Coleman Still restaurant. Before Johnson arrived, Shirley specifically raised the question of Walker’s doing something for him.

4/28/98 Recorded conversation at 3 (“_ Rc. at _”). Shirley shortly thereafter specifically raises the idea of the payment of money.

Id. at 13-14. Discussion concerning Walker’s ability to get Shirley’s file followed and then Cliffina Johnson arrived and the conversation continued.

Id. at 16. Discussion then continued as to what Shirley’s tax problem was and what Walker could do:

Id. at 21. Walker and Shirley then discussed the payment further and Walker confirmed the payment was for him.

Id. at 28. The parties then discuss what Walker wül do and when the actual payment of the bribe will be made. Shirley then concludes the discussion by offering Walker a free vacation in Hawaii.

Id. at 74.

These recorded conversations strongly support the conclusion that ShMey initiated the idea of bribing Walker to get rid of his, Shirley’s, tax problem. The conversation about a car on March 27, 1998 took place before Johnson even claims that Walker spoke to her about asking for a bribe from Shirley. Nevertheless, in their motions both ShMey and Johnson contend that Walker came up with the bribe idea and then pressured Johnson to suggest the idea to ShMey. It is difficult to read the above excerpts and accept that contention. However, more importantly, the contention does not square with Johnson’s trial testimony. Johnson did testify that the idea of a cash payment was Walker’s and that Walker got her to agree to persuade Shirley to pay a $10,000 bribe. She testified that Walker first mentioned in late March that he was going to charge ShMey but Walker had laughed when he said it so she did not take him seriously. Tr. at 1213:1-13. Thereafter, Walker mentioned to her on April 2 and 9 that he was going to charge ShMey but he again laughed when he said so. However, on April 14 at a chance meeting between Walker and Johnson, Johnson testified that Walker told her he was serious. Id. at 1213:15-1217:11. Johnson claims that Walker thereafter pressured her into agreeing to ask ShMey to pay Walker a fee. Both movants cite page 1230 of the trial transcript as supporting the claim that Johnson then conveyed Walker’s fee to ShMey. Johnson’s testimony, however, does not support that claim. When asked at trial about a statement she made in a recorded conversation with Walker on April 27, she testified:

Id. at 1230:3-9. However, Johnson expressly denied that after agreeing to ask ShMey she did so.

Id. at 1217:10-1218:2. Therefore, even if Walker had told Johnson that he was going to ask for a bribe, there is no evidence that Shirley was told that Walker was going to ask for a bribe prior to Shirley’s suggesting he would pay one both before and after Johnson joined them in his meeting on April 28 with Walker at the Coleman Still restaurant.

Shirley also argues that Walker’s advice to Shirley as to the dire consequences he faced as a result of his tax problem induced Shirley to pay a bribe. However, accepting for discussion that Johnson had asked Walker to meet with Shirley only for the purpose of explaining the notice that Shirley had received from the IRS, it appears that Shirley clearly had a severe tax problem and that what Walker told him was, at least in large part, true. Shirley has not offered evidence that Walker’s advice was materially wrong and thus wrongfully induced Shirley to offer a bribe.

The court concludes that the fact that the potentially impeaching evidence concerning Walker was not available to Shirley at his trial does not undermine confidence in the correctness of the jury’s verdict finding him guilty.

3. Lack of Materiality of Impeachment Evidence As to Case Against Defendant Johnson

Johnson was entrapped if she was not predisposed to commit the crimes of which she was convicted before being contacted by Walker and if she was induced by Walker to commit those crimes. The jury necessarily found that the Government proved beyond a reasonable doubt that she was not entrapped. The question now is whether there is a reasonable probability that, had the newly discovered impeaching evidence of Walker’s criminal acts been disclosed, the result of the trial against Johnson would have been different. Having carefully reviewed the evidence, the court concludes that it would not have been.

The only evidence of inducement was Johnson’s testimony that Walker came up with the plan to charge Shirley and that Walker then pressured Johnson into agreeing to ask Shirley how much he would pay. “Inducement is any government conduct creating a substantial risk that an otherwise law-abiding citizen would commit an offense.” United States v. Sandoval-Mendoza, 472 F.3d 645, 648 (9th Cir.2006) (internal quotations omitted). The mere suggestion to commit a crime, however, does not amount to inducement. United States v. Mendoza-Prado, 314 F.3d 1099, 1102 (9th Cir.2002). Here, although Johnson claims she was pressured into participating, the circumstances make that claim difficult to accept. Although persuasion by itself can result in entrapment (see United States v. Gurolla, 333 F.3d 944, 954 (9th Cir.2003)), the evidence shows no sound basis for concluding that Walker’s alleged pressure would have created a substantial risk that an otherwise law-abiding citizen would have committed the offenses. Johnson had been offered no money or other benefit for her participation at the time she claims to have yielded to Walker’s pressure. Walker had made no threats nor taken any coercive action against Johnson. The evidence provides no rational explanation why a law-abiding citizen, even assuming the facts as claimed by Johnson, would have felt pressured to participate in a bribery scheme.

Johnson’s claim that she participated because of Walker’s pressure, and that she was not predisposed to commit the crimes, is inconsistent with the evidence.

United States v. Tucker, 133 F.3d 1208, 1217 (9th Cir.1998) (internal quotation marks and citations omitted). The nature of the alleged inducement of Johnson, if any, and Johnson’s apparent lack of reluctance are shown by the evidence previously discussed. Two additional pieces of evidence relating to Johnson’s character show that she had a willingness to do illegal acts for money. On March 18, 1998, a date before Johnson claims that Walker said anything about seeking a bribe, Johnson told Walker about charging for helping a tax payer with an offer-in-compromise.

3/18/98 Rec. at 15-16. Then on April 27, 1998 in a meeting between Johnson and Walker, Johnson expressed her determination to personally get some of the money from Shirley.

4/17/98 Rec. at 13.

If Johnson is believed, Walker made the initial suggestion of a cash payment for fixing Shirley’s tax problem. Nevertheless, it was Johnson who arranged the original contact between Shirley and Walker. Johnson brought Shirley into contact with Walker because Shirley had a tax problem. Before Johnson claims that Walker pressured her to assist him in getting a bribe from Shirley, she had told Walker in a March 18, 1998 conversation that Shirley would give Walker a car in exchange for his help.

3/18/98 Rec. at 19-20. The evidence that Johnson was induced to commit her crimes and was not predisposed to engage in the criminal activity is minimal at best. The weight of the evidence strongly suggests that Johnson was not reluctant to engage in criminal activity. The newly discovered potentially impeaching evidence of Walker, although disturbing, does not undermine the court’s confidence in the correctness of Johnson’s conviction.

IV. ORDER

The motions of Johnson and Shirley for relief under 28 U.S.C. § 2255 are denied.

. If evidence of entrapment is offered, the burden is on the Government to prove beyond a reasonable doubt that the defendant was not entrapped. . Johnson testified at trial that she did not actually charge for offers in compromise and that her statement to Walker was a lie.