Bentz

MEMORANDUM *

The government failed to live up to its disclosure obligations to Defendant-Appellant Robert Thomas Bentz (“Bentz”) under Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963), when it elected not to produce the prior grand jury testimony of company accountant and wit *285 ness Leonard Peters (“Peters”). However, its failure does not merit reversal under the “outcome determinative” test of United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).

Bentz’s conviction for embezzlement from an employee benefit plan (and related reporting and disclosure offenses) was based on more than Peters’ testimony alone. And while Peters alone testified that he told Bentz the fund transfer was illegal, there was other, substantial evidence of Bentz’s knowledge of the transfer’s illegality, including his own statements to Dr. Chen, his inconsistent explanations to company comptroller Kevin Atkin, the forgery of documents related to the “loan,” and the testimony of the plan administrator about the nature of plan deposits. The availability of this evidence to the jury sets this case apart from United States v. Steinberg, 99 F.3d 1486 (9th…