UNITED STATES of America, Plaintiff-Appellant, v. Maurice HERRING, Defendant-Appellee

Under Brady v. Maryland, 373 U.S. 83, 87 , 83 S.Ct. 1194, 1196-97 , 10 L.Ed.2d 215 (1963), the government has the obligation upon request to disclose to a criminal defendant material favorable evidence in the government’s possession, including information about government witnesses that could be used to impeach them. See United States v. Bagley, 473 U.S. 667, 675-77 , 105 S.Ct. 3375, 3379-81 , 87 L.Ed.2d 481 (1985). In United States v. Henthorn, 931 F.2d 29 (9th Cir.1991), we held that the government has a duty to examine the personnel files of testifying law enforcement officers for Brady material. Id. at 31. In United States v. Jennings, 960 F.2d 1488 (9th Cir.199) we that an Assistant United States Attorney (“AUSA”) may not be ordered by a district court to conduct that examination personally. Id. at 1491 . Rather, we approved a policy proposed by the Department of Justice for the appropriate agency to examine its personnel files and notify the AUSA of any potential Brady material, as long as the AUSA makes the determination whether the material should be disclosed. Id. at 1492 & n. 3.

In this ease, defendant Maurice Herring filed a pre-trial motion for a ruling that the AUSA…