Hughes Anderson Bagley v. Walter T. Lumpkin, Warden

Appellant Bagley, now on parole, appeals from the district court’s order denying his 28 U.S.C. § 2255 (1976) motion to vacate, set aside, or correct his sentence. He contends (1) that the government’s willful nondisclosure of impeachment evidence requested before trial denied him effective cross-examination of two key government witnesses, and (2) that the government’s failure to disclose the requested information resulted in an uninformed and therefore unconstitutional jury waiver. We need address only the first of these contentions because Bagley failed to raise the jury waiver argument below. See Egger v. United States, 509 F.2d 745, 749 (9th Cir. 1975). We reverse.

FACTS

Bagley was charged in a fifteen-count indictment with firearms and narcotics vio lations. On November 18, 1977, twenty-four days before trial, Bagley filed discovery motions requesting the prosecutor to disclose various items of information, including whether the government paid or promised compensation to any of its witnesses or informants. The government responded by providing affidavits from its key witnesses, James F. O’Connor and Donald E. Mitchell, each of whom stated that he had neither received nor…