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No. 12-30366 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA Plaintiff - Appellee, v. KARL F. THOMPSON, JR., Defendant - Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WASHINGTON D.C. No. 2:09-cr-00088-FVS-1 The Honorable Fred Van Sickle, Senior United States District Judge.

REPLY BRIEF FOR APPELLANT

CARL J. ORESKOVICH COURTNEY A. GARCEA STEPHEN M. LAMBERSON Attorneys for Appellant Karl F. Thompson, Jr. Etter, McMahon, Lamberson, Clary & Oreskovich, P.C. 618 W. Riverside, Suite 210 Spokane, Washington 99201 (509) 747-9100

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TABLE OF CONTENTS TABLE OF AUTHORITIES...iii I. INTRODUCTION.1

II. REPLY FACTS.3 III. ARGUMENT..18 a. The Governments Argument That Officer Thompson Has Not Established A Violation Under Brady v. Maryland Is Not Supported In Law Or Fact. To The Contrary, A Brady Violation Has Occurred...18 i. Standard Of Review..18 ii. Suppression Of Grant Fredericks Exculpatory Evidence Has Prejudiced Officer Thompsons Constitutional Right to a Fair Trial....20 iii. Bradys Materiality Requirement.21 iv. The District Court Erroneously Based Its Materiality Assessment On Evidence Other Than Officer Thompsons Approach And First Two Baton Strikes...24 v. Even If The District Court Based Its Materiality Assessment On The First Two Baton Strikes, Overwhelming Evidence Does Not Exist To Maintain Confidence In The Verdicts...34 1. Eye-Witness Testimony......37 2. Medical Experts..39 3. Officer Thompsons Own Statements And/Or Testimony..41 4. Use Of Force Experts.44 vi. Grant Fredericks Evidence Is Not Cumulative....45

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1. Impeachment Of Dr. Gill Would Not Have Been Cumulative Nor Insubstantial ..50 2. Impeachment of Use of Force Experts Would Not Have Been Cumulative Nor Insubstantial..54 3. Impeachment of Lay Witnesses Would Not Have Been Cumulative Nor Insubstantial..56 vii. The Government Knowingly And Intentionally Withheld Grant Fredericks Evidence......57 viii. Officer Thompson Did Not Abandon His Argument That The Indictment Should Be Dismissed..65 IV. CONCLUSION...66 STATEMENT OF RELATED CASES..69 CERTIFICATE OF COMPLIANCE.70 CERTIFICATE OF SERVICE...71

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TABLE OF AUTHORITIES UNITED STATES SUPREME COURT CASES Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963)..passim Cone v. Bell, 556 U.S. 449, 129 S. Ct. 1769 (2009)..50, 53 Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763 (1972).2, 31, 32 Kyles v. Whitley, 514 U.S. 419, 115 S. Ct. 1555 (1995)22, 23, 28, 45 Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936 (1999)..22, 23, 45 United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392 (1976).23 NINTH CIRCUIT COURT OF APPEALS CASES Benn v. Lambert, 283 F.3d 1040 (9th Cir. 2002).21, 23, 61 Carriger v. Stewart, 132 F.3d 463 (9th Cir.1997).23, 48 Gonzales v. Wong, 667 F.3d 965 (9th Cir. 2011) ... 48 Paradis v. Arave, 240 F.3d 1169 (9th Cir.2001).24 Silva v. Brown, 416 F.3d 980 (9th Cir. 2005)... 22, 28 U.S. v. Chapman, 524 F.3d 1073 (9th Cir. 2008) ... 19 U.S. v. Collins, 551 F.3d 914 (9th Cir. 2009).49-50 U.S. v. Kohring, 637 F.3d 895 (9th Cir. 2010).passim U.S. v. Olsen, 704 F.3d 1172 (9th Cir. 2013)19, 23 U.S. v. Price, 566 F.3d 900 (9th Cir. 2009) .19, 22-24, 50, 53 U.S. v. Sedaghaty, 728 F.3d 885 (9th Cir. 2013). 19 U.S. v. Stever, 603 F.3d 747 (9th Cir. 2010)...19 U.S. v. Wilkes, 662 F.2d 524 (9th Cir. 2011) 48-49

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United States v. Jernigan, 492 F.3d 1050 (9th Cir. 2007).22, 23, 39, 44 United States v. Olsen, 737 F.3d 625 (9th Cir. 2013) (Kozinski, J. dissenting).58 UNITED STATES COURT OF APPEALS CASES, OTHER CIRCUITS United States v. Oruche, 484 F.3d 590 (D.C.Cir.2007).19-20 U.S. v. Mitchell, 365 F.3d 215, 255 (3d Cir. 2004).... 64 United States v. Jackson, 780 F.2d 1305, 1311 n. 4 (7th Cir.1986) ...... 64 UNITED STATES DISTRICT COURTS CASES U.S. v. W.R. Grace, 401 F. Supp.2d 1069 (D. Mont. 2005) .. 48 APPLICABLE CONSTITUTIONAL PROVISIONS U.S. CONST. amend. V U.S. CONST. amend. VI APPLICABLE FEDERAL STATUTES 18 U.S.C. 242 18 U.S.C. 1519

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I.

INTRODUCTION

The United States prosecution of decorated police officer Karl F. Thompson, Jr. (Officer Thompson) was built upon a fundamental theme. From its opening statement, to its closing argument, the lynchpin of the governments prosecution was centered on its claims that Officer Thompson charged into [a] convenience store and unleashed baton blows, and that his sudden attack left a fellow citizen battered and beaten on the floor. ER 614, 2133-34. The initial encounter was crucial to the governments case. The government alleged that Officer Thompson stormed upon Mr. Zehm inside the convenience store, and without giving verbal commands, immediately began striking him with a baton within seconds of the encounter. The government claimed that the baton strikes began at 18:26:14 through 18:26:16, making Officer Thompsons claim that he briefly stopped and issued verbal commands prior to striking Mr. Zehm impossible. With only two and seconds between the time Officer Thompson claimed to have given commands and the time he allegedly struck Mr. Zehm, the government aimed to shatter Officer Thompsons credibility. The government built its case upon this theme despite its knowledge that the theme was not supported by the evidence. Prior to trial, the governments forensic video analyst Grant Fredericks, a contract instructor of Forensic Analysis and Digital Multimedia Evidence Processing for the Federal Bureau of Investigations

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National Academy in Quantico, Virginia, informed the prosecution that the video does not support its theory regarding the timing and delivery of the initial baton strikes. The expert repeatedly explained and demonstrated why the video does not depict baton strikes during the initial encounter. However, rather than accepting its own experts opinions, the government angrily rejected his analysis and attempted to persuade him to change his opinions. Mr. Fredericks refused. Knowing that Mr. Fredericks analysis would jeopardize its theory of the case, the government engaged in a systematic effort to manipulate, misrepresent and conceal the experts opinions from the defense. The government elected to withhold this information from the defense despite its affirmative obligation to disclose exculpatory evidence under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963) and Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763 (1972). The action taken by the government in this case represents an alarming disregard for Officer Thompsons fundamental right to a fair trial and a disturbing effort by a prosecution to obtain a conviction at all costs. A critical review of the governments actions, as well as the outstanding questions that it has yet to answer regarding its conduct, can lead to only one conclusion: The suppression of Grant Fredericks exculpatory opinions in this cas e was a knowing and intentional effort by the government to hide evidence favorable to the accused.

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This reply brief will focus exclusively on the governments Brady violation. Officer Thompsons other bases for appeal are not abandoned but are hereby submitted upon the Opening Brief. II. REPLY FACTS

The reply facts set forth below are focused upon the governments Brady violation. These facts are necessary to reemphasize the governments egregious conduct in this case and provide a thorough timeline, as supported by the record, of the intentional actions taken by the government to suppress Grant Fredericks exculpatory evidence. In the summer of 2006, Forensic Video Analyst Grant Fredericks

(Fredericks) was contracted by the City of Spokane to conduct a comprehensive forensic analysis of audio recordings and convenience store video related to the March 18, 2006, confrontation between Spokane Police officers and Otto Zehm (Mr. Zehm). ER 2863, 3142. Fredericks, a nationally recognized expert in the field of forensic video analysis,1 produced a report for the City of Spokane in

In addition to being a contract instructor of Forensic Analysis and Digital Multimedia Evidence Processing for the Federal Bureau of Investigations National Academy in Quantico, Virginia, Fredericks is the Digital Video Advisor to the International Association of Chiefs of Police (IACP) for projects funded by the United States Department of Justice. ER 2850. Fredericks has also been the Principal Instructor for a series of forensic video analysis courses offered by the Law Enforcement & Emergency Services Video Association (LEVA), a non profit organization that has trained more than 2,000 law enforcement video analysts throughout the world. ER 2850-51. Fredericks is the Team Leader for
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September 2006. ER 2676, 2850, 2863-2990. Fredericks comprehensive video analysis was focused upon the death of Mr. Zehm and analyzed the activities of all parties who appeared in the video. ER 3124-26. In his report, Fredericks concluded that the video recording showed Officer Thompson struggling with Mr. Zehm for a period of approximately one minute and thirteen seconds before it shows him striking Mr. Zehm with the baton. ER 2880. By the fall of 2006, a federal investigation was underway regarding the March 18, 2006 incident, principally, the actions of Officer Thompson. ER 13. Assistant United States Attorney (AUSA) Timothy Durkin and Federal Bureau of Investigations (FBI) Special Agent Lisa Jangaard were leading the federal investigation. ER 13. Fredericks was contacted by Special Agent Jangaard for the first time in February 2007. ER 13, 2682, 3142. On March 8, 2007, Fredericks met with Special Agent Jangaard and AUSA Durkin at the United States Attorneys Office in Spokane, Washington, to discuss his report. ER 13, 2683, 3146. During this meeting, AUSA Durkin aggressively questioned Mr. Fredericks in a confrontational manner regarding his 2006 report. ER 3121. AUSA Durkin

LEVAs Forensic Video Analysis Certification Program. Id. He also is an adjunct professor at the University of Indianapolis in various disciplines involved in the science of forensic video analysis. Id. Additionally, Fredericks has served as an expert in over 1,000 criminal and civil cases and in the past 10 years, has provided testimony in over 80 court proceedings. ER 2850.
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insisted, consistent with his desired theme of the case, that the video depicted Officer Thompson delivering baton strikes at 18:26:14 through 18:26:16. Id. When Fredericks rejected this interpretation and explained the limitations of the video, AUSA Durkin became angry. Id. 2 The opening seconds of the confrontation between Officer Thompson and Mr. Zehm was the single most important component of the governments case against Officer Thompson. ER 612-16, 674-75, 2133-35, 2138, 2140-41, 2144. The government needed the forensic video analysis to support its theory of the case, enabling it to illustrate to the jury that Officer Thompson unlawfully used immediate force against Mr. Zehm; failed to give verbal commands; and later lied to investigators about the initial contact to justify his use of force. Id. When the governments theory of the case was rejected by Fredericks, AUSA Durkin did not take it lightly. ER 2699 (Durkin was aggressive, loud, um, and very insistent. Mr.

Nowhere in the governments briefing, or in previous filings in the district court, does it dispute that AUSA Durkin aggressively confronted Fredericks in an aggressive and loud manner about his analysis. The government does not dispute that AUSA Durkin was angry that Fredericks report was inconsistent with the governments primary theory of the case, or that Fredericks explained the limitations of the video during the March 2007 meeting. In fact, no statement is ever made by AUSA Durkin rebutting Fredericks allegations regarding his overly aggressive and unprofessional conduct. The only statement provided by the government as to AUSA Durkins behavior is in the form of a self -serving declaration offered by Special Agent Jangaard, stating her belief that Durkins behavior was not inappropriately confrontational or aggressive. SER 740 (emphasis added). Other than this opinion statement, the government never refutes Fredericks assertions regarding Durkins inappropriate and angry conduct.
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Durkin did not appear interested in my opinion.); ER 3144 (The Government made it clear to me that it will not accept evidence from me that does not support its case and it has continuously reminded me that I am strictly forbidden from communicating my concerns.); ER 3131 (I repeatedly refused Mr. Durkins overbearing, aggressive and coercive attempts to have me adopt this false opinion as part of my evidence.). In the March 2007 meeting, Fredericks explained the limitations of the digital recordings to AUSA Durkin and Special Agent Jangaard. ER 3122. As the district court appropriately determined, the government does not deny that Fredericks explained the presence and significance of compression artifacts and motion blur at this meeting. ER 35. Additionally, the government does not dispute that Fredericks described the action at 18:26:14 through 18:26:16 as consistent with a number of possibilities during his meeting(s) with the government. ER 3131.3 During this meeting, Fredericks made it absolutely clear to [AUSA] Durkin that it was not [Fredericks] opinion that the video showed that Thompson swung his baton at Zehm at 18:26:14. ER 3131. The government, specifically AUSA Durkin, has never refuted this point.
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According to Fredericks, he explained the action as consistent with other possibilities, including a crouch, an aggressive or a defensive posture, etc. ER 3131. While the government does not deny Fredericks stated the video could be interpreted to display a number of potential actions, it nevertheless disputes that Fredericks ever mentioned any specific alternatives. SER 741 (emphasis original).
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Special Agent Jangaard produced an FBI 302 report from the March 2007 meeting with Fredericks. ER 3017-21. Despite being present during the protracted discussions between Fredericks and AUSA Durkin, Special Agent Jangaards report was inaccurate, misleading, and failed to disclose the exculpatory opinions provided by Fredericks. ER 35. The FBI 302 report later led defense counsel to believe that Fredericks changed his opinion from his original report and had adopted the governments interpretation of the video, i.e., that baton strikes occurred at 18:26:14 through 18:26:16. ER 52, 92, 236, 3019. 4

The district court recognized the misleading nature of Special Agent Jangaards 302 report and the governments failure to correct this false information despite its knowledge that the report was inaccurate. The district court stated, After reading it, an objective person likely would reach a number of conclusions: An image that is stamped 18:26:14 depicts the defendant holding his baton. Mr. Fredericks initially, but mistakenly, thought the baton was something other than a baton. Mr. Fredericks agreed with the FBI Special Agent that images which are stamped 18:26:14 though 18:26:16 are consistent with baton strikes. Mr. Fredericks agreed that defendant used his baton in a forward striking motion on at least two occasions prior to the point in time when Mr. Zehm can be seen on his back. Finally, Mr. Fredericks admitted he had failed to appreciate the significance of a number of critical images during his initial review of the video. The FBI Special Agents description of Mr. Fredericks anal ysis is devastating. After reading her report, an objective person would be inclined to doubt Mr. Fredericks competence. The United States never attempted to correct or clarify the FBI Special Agents account of the March 8th meeting. None of the other materials the United States disclosed to the defendant prior to trial put him on notice her account might be inaccurate. Instead, the United States let stand the FBI Special Agents report, even though the United States had reason, after Mr. Fredericks testimony in New York, to question whether her report was entirely correct. ER 44-45.
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Mr. Fredericks, AUSA Durkin and Special Agent Jangaard met a second time in August 2007. ER 14, 2708, 3134. Again, AUSA Durkin was aggressive and confrontational, insisting that Fredericks interpretation of the video was inaccurate. ER 3114, 3134. AUSA Durkin directed Fredericks to change his report and told him that if he did not cooperate with the governments investigation, he would call Fredericks in front of the grand jury. Id. Despite this threat, Fredericks refused to adopt AUSA Durkins interpretation. ER 3134. Fredericks again made clear that he would not change his opinions in favor of the governments theory of the case regarding the timing of the initial baton strikes. ER 2717, 3134. During this meeting, Fredericks engaged AUSA Durkin to participate in a re-enactment so that he could categorically explain the limitations of the video and the inaccuracies of the governments interpretation. ER 2715-17, 3123. The government does not dispute that Fredericks provided reenactments to AUSA Durkin and Special Agent Jangaard to demonstrate that certain frames depicting [Officer Thompsons] baton can be interpreted in an exculpatory manner. ER 35. Fredericks was then retained as a government expert and agreed to write a supplemental report for the government. ER 2639, 3022, 3134. He was told by AUSA Durkin to focus exclusively on Officer Thompsons actions in the first one and one half minutes of the confrontation. Id. AUSA Durkin also directed

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Fredericks to remove content from his previous report. ER 3134. He was angry that Fredericks previous report included a reference to Mr. Zehm kicking up at Officer Thompson and insisted that this finding be removed. ER 3127-28.5 He also told Fredericks to remove his observations regarding Mr. Zehms hands as he held the Pepsi bottle. ER 3113. Fredericks, however, was able to convince the government that his findings regarding Mr. Zehms hands should remain because they provided a more detailed and accurate analysis of the video images. Id. Lastly, AUSA Durkin directed Fredericks to include a description of every image where [he] could see Thompsons baton in the video, regardless of whether the baton was static or in motion. ER 3134. AUSA Durkin and Fredericks also discussed Fredericks anticipa ted testimony in front of the grand jury during this meeting. ER 3138. Fredericks agreed that he would state that the depictions at 18:26:14 through 18:26:16 were consistent with a swinging motion, along with other possible actions. ER 3131, see also ER 2712-13, 3138. Given his lengthy, tense, and adversarial discussions In a declaration submitted to the district court, Fredericks stated: Mr. Durkin became angry when I showed him the images of Mr. Zehm's feet in the air. He demanded that I show him the images that show actual 'contact' where Mr. Zehm's feet touch Officer Thompson. Mr. Durkin challenged me to show an image that Mr. Zehm actually struck Thompson with his feet. Mr. Durkin was angry that I had used the term 'kicking up at' in my reportMr. Durkin insisted that I remove this reference when I produce my Supplemental Report. Interestingly, Officer Thompson testified that he tased Mr. Zehm because he was kicking at him. ER 1004-05.
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with AUSA Durkin regarding these frames, Fredericks believed that AUSA Durkin did not intend to imply that the video showed Officer Thompson actually striking Mr. Zehms body at that moment with the baton in front of the grand jury. ER 3138. His belief was incorrect. Fredericks testified before the grand jury on May 13, 2009. ER 3022-3073. Fredericks testified consistent with his agreement with AUSA Durkin that the images depicted at 18:26:14 though 18:26:16 are consistent with a baton strike. See id.; ER 3138. Fredericks expected that AUSA Durkin would follow up with a question putting perspective on [his] testimony that it could also be consistent with other observations, as [they] had previously discussed, however, AUSA Durkin never asked those questions. ER 3022-3073, 3138. After Fredericks rejected the governments interpretation of the video during his March and August 2007 meetings, the government knew it needed an expert who would affirm its theory regarding the initial baton strikes. It hired an expert by the name of Dr. Richard Gill. ER 15, 3141. Dr. Gill is an expert in human factors engineering, not forensic video analysis. ER 15. Dr. Gill completed a report in January 2008 and concluded that the first baton strike occurred at 18:26:14, as sought by the government.6 ER 15, 3141.

Dr. Gills opinions concerning the timing of the first baton strike later had significant implications during trial. ER 15. Specifically, Mr. Zehm can be seen on the video turning around to face Officer Thompson at 18:26:12. Id. According to
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On May 22, 2009, Fredericks testified for the defense United States v. Wayne Simoes , 08-CR-784-KMK (S.D.N.Y. 2009), an unrelated federal criminal case tried in the Southern District of New York. ER 3224-3234. After asking Fredericks relatively few questions about his work in the Simoes case, the New York AUSA began to cross-examine him regarding his analysis in this case. See 3226-3230. The AUSA asked Fredericks if he changed [his] mind about what the video showed? ER 3220. Fredericks responded, No. Thats not true at all. Id. He was then asked In your initial report that you gave to the Spokane Police Department, that was incorrect, wasnt it? ER 3230. Fredericks responded, NoNo, not at all. ER 3230. AUSA Durkin knew that Fredericks testified in Simoes and sought a transcript of Fredericks testimony. ER 143 -45, 154. When he received a copy of the transcript, he learned that Fredericks denied changing his exculpatory opinions in this case. Id. Despite this knowledge, AUSA Durkin never provided the

Officer Thompson, he stopped and issued two commands to Mr. Zehm, which Mr. Zehm defied, prior to the time of the first baton strike. Id. If the first baton strike occurred at 18:26:14 as Dr. Gill concluded, only two and seconds elapsed between the time Officer Thompson issued his verbal commands and the time he first struck him with the baton. ER 15-16. Dr. Gill opined that there simply was not enough time to issue two commands, as Officer Thompson claimed to have done, in such a brief period. ER 16. Dr. Gills opinion that the first baton strike occurred at 18:26:14 was the main theme of the prosecutions case undermined the credibility of Officer Thompsons description of the opening seconds of the confrontation. Id.

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transcript to defense counsel. Id. Instead, the government furnished additional discovery implying, and in some instances explicitly stating, that Fredericks had changed his opinions in favor of the government and that his 2006 report was not accurate. See ER 18-20, 2853-62, 2863-2940, 2941-90, 2991-3016, 3017-21, 302273. Remarkably, the government has never commented as to how the AUSA in New York knew to question Fredericks regarding his alleged change of opinion in this case. Even more interestingly, at the time that Fredericks testified in Simoes, (nine days after his grand jury testimony in this case), Officer Thompson had not yet been indicted nor had any of Fredericks discovery materials been furnished to the defense.7 In other words, Fredericks work in this case was not yet a matter of public record and the grand jury proceedings remained secret at that time. Officer Thompson was charged in a two-count indictment on June 18, 2009. R 1. Count One alleged that Officer Thompson used excessive force during the course of an investigatory stop in violation of 18 U.S.C. 242. Id. Count Two alleged that Officer Thompson knowingly made a false entry in a record and document with the intent to impede, obstruct, or influence an investigation of a matter within the jurisdiction of the Federal Bureau of Investigation in violation of 18 U.S.C. 1519. Id. The district court noted: The questions that AUSA Skotko asked suggest one of two things: either she had a copy of the FBI Special Agents report concerning the March 2007 meeting with Mr. Fredericks, or she had been apprised of the reports contents. ER 37. Otherwise, she would have no basis to ask those questions.
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The government began to provide discovery to defense counsel pursuant to Federal Rule of Criminal Procedure 16(a) shortly after the Indictment. ER 18. The government made five disclosures relating to the it expert, Fredericks: On August 3, 2009, the government disclosed Fredericks 2006 report. ER 2863-2990. On September 22, 2009, the government disclosed a Rule 16 Disclosure entitled United States Addendum to First & Second Notice of Initial Disclosures of Expert Witnesses & Testimony. ER 2853-62. The disclosure set forth a summary of Fredericks opinions the government represented he would testify to at trial. Id. Specifically, the disclosure stated Immediately after the Zip Trip security video shows Thompson appearing to strike Zehm with his baton for the first time, dispatch broadcasted that the complainant was not sure that Zehm had taken any of her money.8 This dispatch occurred before Thompson strikes Zehm a second time with another overhand, up and down, baton strike. ER 2855 (emphasis added). This opinion, among others attributed to Fredericks in the Fed. R. Crim. P. 16 disclosure, was

specifically rejected by Fredericks during previous meetings with the government. ER 2690, 3108, 3120-21, 3130, 3135-36, 3138, 3166. The disclosure led defense counsel to believe that Fredericks changed his opinion
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The broadcast began at 18:26:12 and ended at 18:26:16.

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that baton strikes did not occur until approximately one minute thirteen seconds into the confrontation.9 ER 52, 72, 92, 223. The third document disclosed was Fredericks revised report, dated September 13, 2007. ER 2991-3016. The fourth disclosure provided was Fredericks grand jury testimony, disclosed on October 2, 2009. ER 3022-3073. The fifth and final disclosure occurred on March 1, 2010. ER 20. The government disclosed a copy of Special Agent Jangaards 302 report,

discussed above. ER 3017-21. This report led defense counsel to believe that Fredericks admitted error in his 2006 report regarding the initial confrontation. ER 52, 82, 92-93. Further, it led defense counsel to believe that Fredericks opinion was that Officer Thompson struck Zehm on at least two occasions prior to the time Zehm went to the ground, i.e., 18:26:14 though 18:26:16. Id. The government never disclosed a copy of Fredericks exculpatory 2009 testimony in United States v. Wayne Simoes despite its knowledge of it.10 ER 145, 154. In a later deposition of Fredericks, he stated that he fought very hard against what is credited to him so [the Rule 16 disclosure] wasnt just a misrepresentation, it wasa manufacture. ER 2690-91. He also called the governments disclosure of his opinions completely inaccurate and fabricated. ER 2788.
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On March 11, 2010, seven months after he was retained by the government, Fredericks signed the governments Expert Witness Statement of Work agreement which included a confidentiality clause. ER 2662-2666. Trial proceeded on October 12, 2011 in Yakima, Washington. ER 21. The governments primary theory of the case was based on Officer Thompsons premature use of the baton against Mr. Zehm without giving verbal commands and later lying about the initial confrontation to investigators. ER 612-616, 674-75, 2133-35, 2138, 2140-41, 2144. Fredericks travelled to Yakima to testify, but was informed by AUSA Durkin that he would not take the stand.11 ER 21, 2732. Fredericks told AUSA

During oral argument addressing the governments Brady violation, AUSA Durkin admitted to the Court that the government failed to disclose the Simoes transcript. He stated: Now, the question is, should we have disclose d it? In hindsight, probably should have. Absolutely. ER 145. AUSA Durkin acknowledged again, So would we have liked to have disclosed it? Absolutely. Did we fail to disclose it? Absolutely. ER 154.
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On October 13, 2011, during oral argument on the governments motion to exclude the testimony of Mike Schott, AUSA Durkin assured the court that Fredericks would testify the following day. ER 21. He told the court that the government would be prejudiced by Schotts testimony because [m]y, my expert, Mr. Fredericks, has not even had the opportunity to review this. He's in town today for the first time. I'm going to go meet with him in a couple hours here to review it for the first time. That's in addition to the presentation of his other testimony that we hope to complete tomorrow. And he leaves the country for two weeks at noon tomorrow. ER 21. Not only did Fredericks not testify, but during Fredericks deposition, it was discovered that AUSA Durkins representation to the district court regarding Fredericks ability to review Schotts report was false. Fredericks testified that he
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Durkin, Im not surprised, I didnt think I was going to be helpful to your case. ER 2731-32. Fredericks stated that AUSA Durkin smiled, shook his head and said, probably not. Id. The government admitted Fredericks work through other witnesses including Special Agent Jangaard and Dr. Gill, further perpetuating the mischaracterization of his opinions. 12 As discussed at length in Appellants Opening Brief, the government introduced an exhibit called Baton/Taser Motion Reference Grid which was based upon Fredericks work product. ER 230, 3105, 3074-3106. However, Fredericks created the underlying exhibit to prevent the viewer from inaccurately interpreting the baton motions as baton strikes. ER 3110. Contrary to this purpose, the government introduced the Baton/Taser Motion Reference Grid exhibit through Dr. Gill who used it to establish that the video portrayed actual baton strikes at 18:26:14 through 18:26:16. ER 22, ER 1632-33. ER 21-22, 1632-33, 3105-06. reviewed Mr. Schotts report before he went to Yakima (about a month before trial) and asked the government if he should prepare a rebuttal report or do an examination. ER 2728-30. He was told not to bother. Id. Fredericks had told Durkin that Schott had got a lot right. ER 2729. Defense counsel did object to the admission of Fredericks work product through other witnesses: This is an exhibit that was created by a forensic expert that the government is trying to now get in the back door through the FBI agent instead of calling that expert. And the proper foundation, in my view, is to put the expert on the witness stand to testify for this jury as to what the expert did in terms of preparing the document, not to have this witness, who collected it, and in the course of some examination testify to it. ER 2076.
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Officer Thompson was convicted on both counts on November 2, 2011. The jury utilized general verdict forms. ER 610. On December 16, 2011, Fredericks took the very unusual step of faxing a signed statement to the district court regarding his involvement in the governments prosecution of Officer Thompson. ER 2845 -52. In his statement, Fredericks raised numerous concerns regarding whether his expert opinions and forensic video evidence were properly disclosed to the defense. Id. Fredericks was troubled by the governments conduct during his interactions with AUSA Durkin and Special Agent Jangaard and felt compelled to contact the court due to his fear that a miscarriage of justice had occurred. Id. After learning of the statement, defense counsel moved for an extension of time to file an amended motion for new trial based upon this new information. ER 533. In the months that followed, defense counsel also discovered that the government required Fredericks to sign a confidentiality agreement during his participation in this case. ER 2662-66, 2668-69. Fredericks asked the court to be released from the agreement, which the government opposed. ER 2668-69. Later, Fredericks was interviewed and deposed by both parties and hundreds of pages of briefing were filed, including an additional proffer provided by Fredericks regarding the governments wrongful conduct. ER 31, ER 2670 -2844, 3116-67, 3116-3167.

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Officer Thompson moved the court to dismiss the indictment with prejudice, or alternatively, grant a new trial based upon the governments intentional suppression of Fredericks exculpatory evidence pursuant to Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963). ER 435-64. On August 31, 2012, the court heard oral argument on both Officer Thompsons Motion to Dismiss the Indictment with Prejudice; or Alternatively, Motion for a New Trial and Motion for New Trial over the course of a day-long hearing. ER 67-179. On September 18, 2012, the court issued its rulings denying Officer Thompsons motions. ER 8 -53, 54-64. The court found that exculpatory evidence had been suppressed, but it was not material. ER 8-53. Officer Thompson now appeals the district courts determinations. III. ARGUMENT a. The Governments Argument That Officer Thompson Has Not Established A Violation Under Brady v. Maryland Is Not Supported In Law Or Fact. To The Contrary, A Brady Violation Has Occurred. i. Standard of Review. The government agrees that a district courts denial of a new trial motion based on an alleged Brady violation is reviewed de novo. (Resp. Br. 58). However,

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the government erroneously claims that factual findings underlying a Brady analysis are reviewed for clear error. Id. This argument is not supported in law.13 The government erroneously cites U.S. v. Chapman, 524 F.3d 1073, 1084 (9th Cir. 2008) to advance its claim that factual determinations underpinning a Brady analysis should be reviewed for clear error. Chapman does not support this argument. In Chapman, the standard of review utilized related to findings of fact underlying the dismissal of an indictment under a trial courts supervisory powers. Id. Contrary to the governments argument in this case, it is well established that whether a district court erred in denying a motion for new trial based on an alleged Brady violation is subject to de novo review. U.S. v. Olsen, 704 F.3d 1172, 1178 (9th Cir. 2013), U.S. v. Kohring, 637 F.3d 895, 901 (9th Cir. 2010), U.S. v. Stever, 603 F.3d 747, 752 (9th Cir. 2010), U.S. v. Price, 566 F.3d 900, 907 n. 6 (9th Cir. 2009). Specifically, whether a defendant suffered prejudice as a result of the suppression of exculpatory evidence is reviewed de novo. Price, 566 F.3d 900, 907 n. 6 (The questionof materiality[] is a legal matter that we review de novo.); U.S. v. Sedaghaty, 728 F.3d 885, 899-900 (9th Cir. 2013)

The Ninth Circuit has noted that [w]hile it is clear that the legal questions at issue in a Brady claim are reviewed de novo, this circuit has not yet had the opportunity to consider what, if any, deference should be afforded to a district courts factual findings[,] however, the question whether a defendant suffered prejudice, also known in the Brady context as the question of materiality, is a legal matter U.S. v. Price, 566 F.3d 900, 907 n. 6 (9th Cir. 2009) (internal citations omitted).
13

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(citing United States v. Oruche, 484 F.3d 590, 595-96 (D.C.Cir.2007) ([O]nce the existence and content of undisclosed evidence has been established, the assessment of the materiality of this evidence under Brady is a question of law.)). The usual remedy for a Brady violation is a new trial. Kohring, 637 F.3d 895, 913. However, this Court may determine that sufficient evidence exists demonstrating that the prosecution acted flagrantly, willfully, or in bad faith, and dismiss the Indictment under its supervisory authority. Id. at 912-13. Likewise, this Court may dismiss the Indictment if it determines that the Brady violation was the result of outrageous governmental conduct amounting to a due process violation. Id. at 913. Officer Thompson urges this Court to find that ample evidence exists demonstrating that the government acted willfully or in bad faith and to dismiss the Indictment. ii. Suppression Of Grant Fredericks Exculpatory Evidence Has Prejudiced Officer Thompsons Constitutional Right to a Fair Trial. The government does not challenge the district courts determination that Fredericks evidence was exculpatory or that it was suppressed. The sole issue before this Court, as it relates to Officer Thompsons Brady claim, is whether the suppression of the exculpatory evidence prejudiced Officer Thompsons right to a

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fair trial.14 The government claims that Fredericks evidence is not material because it was cumulative, or alternatively, that overwhelming evidence was offered at the time of trial to support Officer Thompsons convictions based upon the first two baton strikes. In asserting these arguments, the government fails to recognize the significance of Fredericks evidence and how it could have been used to rebut the central theme of its case against Officer Thompson, i.e., the unreasonableness of the initial encounter. Likewise, the government overstates the evidence presented against Officer Thompson at trial and wholly discounts the cross-examination of government witnesses and the evidence offered by the defense. Furthermore, it disregards the district courts determination that evidence supporting Count I was not overwhelming. ER 56. The government also ignores its own calculated steps to conceal Fredericks exculpatory evidence from the defense and the manner in which these deceptive actions deprived Officer Thompson of his right to a fair trial. Lastly, the government neglects to appreciate the well-developed law as it relates Bradys materiality requirement, in particular, this Courts decision in U.S. v. Kohring. iii. Bradys Materiality Requirement Under Brady, [t]he touchstone of [the prejudice analysis] is whether

admission of the suppressed evidence would have created a reasonable probability For purposes of a Brady analysis, the terms material and prejudicial have the same meaning. Benn v. Lambert, 283 F.3d 1040, 1053 (9th Cir. 2002).
14

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of a different result. Price, 566 F.3d at 911 (citing United States v. Jernigan, 492 F.3d 1050, 1053 (9th Cir. 2007) (en banc) (quoting Kyles v. Whitley, 514 U.S. 419, 434, 115 S. Ct. 1555 (1995)). The Supreme Court has stressed that [t]he adjective is important. Strickler v. Greene, 527 U.S. 263, 289-90, 119 S.Ct. 1936 (1999) (quoting Kyles, 514 U.S., at 434, 115 S.Ct. 1555). The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. Id. The materiality analysis is not a sufficiency of the evidence test. Silva v. Brown, 416 F.3d 980, 986 (9th Cir. 2005) ([M]ateriality does not require a showing that the defendant would have been acquitted had the suppressed evidence been disclosed, or that disclosure of the suppressed evidence would have reduced the quantum of inculpatory evidence below that required to convict the defendant.). It does not depend on whether, after discounting the inculpatory evidence against the undisclosed evidence, the remaining evidence is sufficient to support the verdict. Strickler, 527 U.S. 263, 290, 119 S. Ct. 1936 (citing Kyles, 514 U.S. at 434-35, 115 S. Ct. 1555); Kohring, 637 F.3d at 902 ([A] reasonable probability may be found even where the remaining evidence would have been sufficient to convict the defendant.) (internal citations omitted)). Instead, the materiality assessment depends on whether the favorable evidence could

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reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict. Strickler, 527 U.S. at 290, 119 S. Ct. 1936 (quoting Kyles, 514 U.S. at 435, 115 S. Ct. 1555). In considering whether the suppression of exculpatory evidence undermines confidence in the outcome, the Court must undertake a careful, balanced evaluation of the nature and strength of both the evidence the defense was prevented from presenting and the evidence each side presented at trial. Jernigan, 492 F.3d 1050, 1054 (internal citations omitted). In other words, the withheld evidence must be analyzed in the context of the entire record. Id. (citing Benn, 283 F.3d at 1053 (quoting United States v. Agurs , 427 U.S. 97, 110, 112, 96 S.Ct. 2392 (1976)). When suppressed evidence is merely cumulative, the failure to disclose does not necessarily amount to a Brady violation. Kohring, 637 F.3d at 902. However, evidence is not needlessly cumulative when it is of a different character or source than evidence already known to the defense or if the evidence adds a new dimension to already known information. Id. at 904, 912. Evidence that is capable of being used to impeach a government witness may be deemed material under Brady even if it is not independently admissible. Olsen, 704 F.3d at 1184 (citing Carriger v. Stewart, 132 F.3d 463, 481 (9th Cir.1997) (en banc); Price, 566 F.3d at 911-12). Inadmissible evidence that could have led to the discovery of admissible

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evidence also may qualify as material under Brady, although [the Ninth Circuit] has not conclusively resolved the issue. Id. (citing Price, 566 F.3d at 911-12; Paradis v. Arave, 240 F.3d 1169, 1178-79 (9th Cir. 2001)). iv. The District Court Erroneously Based Its Materiality Assessment on Evidence Other Than Officer Thompsons Approach and First Two Baton Strikes. The government argues that the district court based its materiality finding on Officer Thompsons approach and initial baton strikes. In making this argument, the government fails to appreciate the plain language of the courts opinion. In reaching its materiality determination, the district court explicitly stated that: The problem is this: The jury was not asked to specify which of the act(s) it relied upon to find the defendant guilty of Count One, nor was the jury asked to specify which statement(s) it relied upon to find the defendant guilty of Count Two. Thus, the Court must assume to jury agreed the defendant administered all of the strikes identified by Dr. Gill, and the Court must assume the jury agreed each strike was unlawful. ER 46 (emphasis added). The district court recognized that the use of general verdict forms was a problem in resolving the materiality issue; however, it erroneously determined that because a general verdict form was used, it was required to assume that the jury agreed each baton strike was unlawful and each statement made by Officer Thompson to investigators was false. The court went on to explain that Fredericks evidence would have been essential to rebut the
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governments theory regarding the timing of the initial baton strikes (ER 48, 51), however, other evidence presented by the government was sufficient to convict Officer Thompson based upon his actions throughout the confrontation. ER 5051.15 Importantly, the district court explained why Fredericks evidence regarding the timing of the initial baton strikes was essential to a successful defense by explaining that [t]he defendants principal means of negating the impression created by the video was to persuade jurors the video does not tell the whole story. This was the precise point Mr. Fredericks repeatedly tried to make about the video, and there was external support for his contention. ER 48.16

Notably, in the order denying Officer Thompsons Motion for a New Trial, the district court found that the evidence supporting Count I was not overwhelming, particularly as it relates to the willfulness element of the crime. ER 56. In making this determination, the district court acknowledged evidence indicating Officer Thompsons actions served a legitimate law enforcement purpose; Fredericks analysis of the video recordings of the opening seconds of the confrontation is inconsistent with, and undermines Dr. Richard Gills analysis; limitations of the video recordings; evidence regarding baton strikes to the head was unreliable; and the lack of evidence that Officer Thompson gratuitously employed force against Mr. Zehm. Id.
15

The limitations of the video were critical to Officer Thompsons defense. Officer Thompson himself did not watch the video prior to giving his statement to investigators because he did not want it to influence his memory. From his recollection, he described events that were not visible in the video. Establishing that the video did not tell the whole story was crucial to defend Officer Thompsons alleged excessive force allegation (Count I) and later recollection of events (Count II).
16

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The court further discussed the external support for Fredericks interpretation of the video via eye-witness testimony which could have been used to establish that the opening seconds of the confrontation between the defendant and Mr. Zehm were more complex than the video seems to suggest. ER 48 -49. This evidence would have supported Officer Thompsons claim that he paused and issued verbal commands to Mr. Zehm prior to delivering any baton strike. In particular, the district court mentioned the testimony of Mr. Russell Balow and Ms. Carrie Coyle-Balow, who both stated that Officer Thompson paused as he approached Mr. Zehm and appeared to give commands prior to striking him. ER 48. Additionally, the court drew special attention to percipient witness Michael Dahl who initially told investigators that he did hear Officer Thompson give commands prior to striking Mr. Zehm. ER 48. As the court explained, the government took Mr. Dahl aside and showed him images of the opening seconds of the confrontation. The United States provided a partisan interpretation of those images [despite its own forensic video experts interpretation of the video]; convincing him he had not seen the first baton strike. ER 49. Defense counsel was not invited to participate in these meetings, and by the

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time Mr. Dahl testified at trial, he had changed his testimony in favor of the governments proffered theory of the case. ER 49. 17 While the district court found that the United States interaction with Mr. Dahl and its failure to disclose Mr. Fre dericks favorable opinions unfairly disadvantaged Officer Thompson, it found that the governments actions were not unfairly prejudicial. ER 49-50. In assessing the level of prejudice suffered by Officer Thompson as a result of the governments actions, the court determined that the likelihood of a different outcome was remote due to the weight of the other evidence presented by the United States in relation to the entire encounter. ER 5051. Essentially, the district court engaged in a sufficiency of the evidence test despite the fact that it recognized that, with proper disclosure of Fredericks

Dahls previous statements to investigators corroborated Officer Thompsons recollection of the encounter. Mr. Dahl told Special Agent Jangaard on numerous occasions that prior to the first baton strike, he looked over to Officer Thompson and Mr. Zehm, heard Officer Thompson instruct Zehm to drop the pop, and when Mr. Zehm refused to comply, Officer Thompson struck him in the leg with the baton. ER 1698. During the governments meetings with Dahl, it used the interpretation of the video rejected by Fredericks to represent that the video depicts the first baton strikes at 18:26:14 through 18:26:16. By representing this interpretation of the video as fact, the government was able to persuade Dahl into believing that he did not see the first two baton strikes and, therefore, did not hear commands prior to Officer Thompsons use of force. In short, the government utilized the exact interpretation of the video that had been rejected by its only video expert to dissuade a witness from offering exculpatory evidence. The government then hid the exculpatory opinion evidence that could have been used to establish that Dahls first version of events was indeed accurate and corroborated Officer Thompsons description.
17

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evidence, [i]t is possible the verdicts would have been different. ER 51. Cf.Kyles, 514 U.S. at 434, 115 S. Ct. 1555 (The materiality analysis is not a sufficiency of evidence test.); Silva, 416 F.3d at 986. In addressing the weight of the other evidence presented, the district court specifically noted the testimony of police-practice experts who were critical not only of the decisions made in the opening seconds of the confrontation, 18 but of the decisions [Officer Thompson] made throughout his struggle with Mr. Zehm. ER 51. Additionally, the district court noted that apart from the timing of the initial baton strikes, medical evidence was presented at trial demonstrating that Mr. Zehm was struck in the head with the baton, amounting to an unlawful use of force.19 ER 50. The district court also relied upon Officer Thompsons own admissions, including that he admitted to intentionally and repeatedly striking Mr. Zehm at

18

As argued later in this brief, Officer Thompson contends that if he had been aware of Fredericks interpretation of the video; he would have been able to cross examine the governments use of force experts regarding their interpretation of the video and the limitations inherent in the media for which those experts have no expertise. Officer Thompson would have been able to highlight their lack of expertise and misunderstanding of the videos images as compared to the governments own forensic video analysts interpretation of what the images actually depict and thereby challenge the basis for their opinion evidence. See infra pp.53-55.
19

Whether Mr. Zehm was intentionally struck in the head with a baton was strenuously contested at trial. See infra pp. 36-41.

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later points in the confrontation.20 ER 51. Lastly, the district court relied upon the testimony of percipient witnesses who observed the struggle between the defendant and Mr. Zehm. ER 50. The district courts discussion of witness testimony was not in relation to the governments alleged timing of the initial baton strikes, but regarding the confrontation in its totality. ER 50. In other words, the district court made its materiality determination on the assumption that the jurys convictions were based upon Officer Thompsons actions after the first two alleged baton strikes, and concluded that there was sufficient evidence to convict based upon those subsequent actions. 21 The problem, however, as articulated by the court, is that because a general verdict form was used, it is impossible to know which action(s) the jury unanimously agreed upon to support the convictions.22 Despite the fact that the district court expressly

20

Officer Thompson admitted to utilizing his baton and taser to control Mr. Zehm, who violently resisted Officer Thompsons attempt to restrain him. At no time has Officer Thompson admitted that his use of force was unlawful. To the contrary, Officer Thompson has consistently maintained that his use of force was necessary to accomplish a legitimate law enforcement purpose.
21

The Court did not find that the evidence was overwhelming in regards to Count I. As mentioned in footnote 15, in the district courts order denying Officer Thompsons Motion for a New Trial it stated the jury could have found otherwise based upon the evidence that was presented to it. ER 56. Importantly, the jury was instructed as to Count I, The government alleges a number of the defendants acts of force were unlawful. In order for you to find the defendant guilty of Count 1, you must unanimously agree upon at least one of the specific acts of force alleged by the government, and you must unanimously agree
22

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acknowledged that the verdicts could have been based solely upon Dr. Gills interpretation of the video, it nevertheless failed to appreciate that the impact this fact has on the reliability of the jurys convictions. The district court stated that [i]t is possible that the verdicts were based, in whole or in part, upon Dr. Gills testimony concerning the first two baton strikes. ER 30. In light of this recognition, the district court should have found that because Fredericks evidence materially rebuts the occurrence of the first two baton strikes and lack of verbal commands (as alleged by the government through Dr. Gill), and the first two baton strikes could have provided the lone basis for the convictions, confidence cannot be maintained in the verdict. As argued in Officer Thompsons Opening Brief, this Courts decision in U.S. v. Kohring underscores the prejudicial effect non-disclosure of Brady evidence has in cases where a general verdict form is used. In Kohring, the district

that the specific act of force was unlawful as defined by these instruction. ER 2692 (emphasis added). As to Count II, the jury was instructed, The government alleges the defendant knowingly made a number of false entries in a record or document. In order for you to find the defendant guilty of Count 2, you must unanimously agree upon at least one of the specific entries alleged by the government, and you must unanimously agree that the specific entry was unlawful as defined by these instructions. ER 2598 (emphasis added). No special interrogatory was given nor was the jury asked to specify which act or acts it unanimously agreed upon in finding Officer Thompson guilty of Count I or which statement(s) it relied upon to find him guilty of Count II.
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court reasoned that the non-disclosure of exculpatory evidence did not rise to the level of a Brady/Giglio violation because the newly disclosed evidence did not cast any doubt on evidence supporting one of the acts alleged by the government. Kohring, 637 F.3d 895, 901. The district court assumed [the single act] supported the convictions on all three counts. Id. Thus, the district court concluded, the withheld evidence, which tended to cast doubt on the remaining [acts] was immaterial. Id. On appeal, the government unsuccessfully argued that the newlydisclosed information was irrelevant because it cast no doubt on one of the alleged wrongful acts, which alone was sufficient to support the convictions on all three counts. Id. at 902. This Court rejected the governments argument, finding that there was no way to determine what act the jury based its determination on because it was given only a general verdict form. Id. The Court went on to conduct a detailed analysis of the newly-disclosed information and found that the newly-disclosed evidence was material to the other acts which could have formed the basis for the convictions, therefore, confidence could not be had in the verdicts. Id. at 901-913. In other words, despite the existence of sufficient evidence to support all three convictions which the newly-disclosed evidence did not rebut, there was no way to conclusively determine which of the alleged acts the jury actually based its verdicts on because only a general verdict form was used. See id. at 901. Because the

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newly-disclosed information was material to at least some of the acts in which the verdict may have been based, this Court determined that a violation of Brady/Giglio had occurred. Id. The government argues against the applicability of Kohring to this case by asserting that this Court did not hold that withheld evidence regarding actions that may be the basis of a general verdict is automatically deemed material. (Resp. Br. 63). The government misconstrues the point. Kohring makes clear that in situations where multiple acts could have accounted for a single conviction, yet no special verdict form is used; newly-disclosed evidence that is material to a defendants ability to negate one of the alleged acts undermines confidence in the verdict as a whole. That is the precise situation present here. As the district court aptly noted, Fredericks e xculpatory evidence negating the timing of the initial baton strikes was essential to a successful defense. ER 48. In its order denying Officer Thompsons Motion to Dismiss the Indictment, or, in the alternative, Grant a New Trial, the district court stated that Fredericks exculpatory opinions would put the first baton strike at least two seconds later than alleged by the government. ER 42. The district court recognized the importance of this information, stating that [t]wo seconds may not seem like much, but in this case, two seconds is significant. Id. Why was this information so significant? Because the governments central theme of its case, permeating the entire trial, was

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that Officer Thompson abruptly and prematurely used unjustified force against Mr. Zehm without issuing verbal commands and later lied about it to investigators. 23 From its opening statement through its closing argument, the government told the jury that the case was about the first baton strikes. ER 614, 2133-34. The government specifically invited the jury to convict Officer Thompson of Count I on the sole basis of either baton strike one or two was unlawful. ER 639-45. Likewise, the government also invited the jury to convict Officer Thompson of Count II on the sole basis that his statements to investigators regarding the initial confrontation were knowingly false. ER 672-76. As the district court explained, the video is very powerful and appears to demonstrate to a lay viewer Officer Thompson abruptly striking Mr. Zehm. ER 48. Any evidence negating the impression created by the video and persuading the jury that it does not tell the

The government opened its case with the following statement: This is a case about a police officer who chose to strike first and ask questions later. Its a case about a fellow citizen who walked into a convenience store to buy soda popBut following a sudden attack by the defendant, this man was left battered and beaten in the center aisle. Its a case about a police officer, the defendant, who walked into that convenience store and unleashed blows ER 2133-34.
23

The government began its closing statement utilizing the same theme: We began this process a couple of weeks ago, I told you that this case is about a police officer who chose to strike first and ask ques tions later. Its a case about a fellow citizen who walked into a convenience store to buy soda pop, but after a sudden attack by the defendant, was left battered and beaten in the center aisle. Its a case about a police officer, the defendant, who charged into that convenience store and unleashed baton blows ER 614.

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whole story was paramount to Officer Thompsons defense in rebutting the initial encounter. Id. Like in Kohring, Fredericks evidence is material to some of the acts that could have formed the basis of Officer Thompsons convictions. Because multiple acts or statements could have accounted for the convictions, yet no special verdict form was used, it remains unknown which of the acts the jury relied upon in reaching its verdict. Evidence negating even one of the acts that could have formed the basis of the convictions undermines confidence in the verdicts as a whole. The district court itself recognized, [i]t is possible the verdicts were based, in whole, or in part, upontestimony concerning the first two baton strikes. ER 30. Fredericks exculpatory evidence speaks directly to two of the acts the jury might have relied upon in reaching its verdicts. Therefore, because it remains unknown as to which of the alleged uses of force the jury determined was unreasonable, and which statement the jury determined was false, evidence contradicting the initial encounter undermines confidence in the outcome of trial. v. Even If The District Court Based Its Materiality Assessment On The First Two Baton Strikes, Overwhelming Evidence Does Not Exist To Maintain Confidence In The Verdicts. The government argues that overwhelming evidence was presented at trial supporting the jurys determination that Officer Thompson willfully used excessive force in his first two baton strikes against Mr. Zehm; therefore, the

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convictions should be upheld. In making this argument, the government disregards the district courts finding in its Order Denying the Defendants Motion for New Trial (ER 54-64) that evidence supporting Count One was not overwhelming. ER 56. In particular, the district court found that evidence indicating that Officer Thompson acted willfully was not substantial and that [t]he jury could have found otherwise based upon the evidence that was presented to it. Id. The district court acknowledged evidence demonstrating that Officer Thompsons actions served a legitimate law enforcement purpose; the importance of Fredericks video analysis undermining Dr. Richard Gills analysis during the opening seconds of the confrontation; limitations inherent in the video recordings; the unreliability of evidence regarding baton strikes to the head; and the lack of evidence that Officer Thompson gratuitously employed force against Mr. Zehm. Id. The governments attempt to prove willfulness at trial was predicated on its ability to prove that Officer Thompsons version of the opening seconds of the confrontation was false.24 Specifically, the government alleged that Officer Thompson ran into the convenience store, failed to give verbal commands, and immediately began striking Mr. Zehm (including baton strikes to the head). ER 639-45. The government argued that this sudden attack demonstrated Officer

Additionally, the governments theory regarding Count II was that Officer Thompson lied about the initial encounter.
24

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Thompsons willfulness and intent to deprive Mr. Zehm of his right to be free from unreasonable force. ER 614, 2133-34. Given the fact that the governments primary way of proving willfulness hinged on its ability to argue that Officer Thompson failed to give verbal commands and struck Mr. Zehm too quickly during the initial encounter, any evidence negating when the first baton strikes occurred was vital to his defense. As the district court noted, even a few seconds, which may not seem like much, in this case were significant. ER 42. By putting the baton strikes even a few seconds later in time, Officer Thompsons account of the encounter, including his claim that he briefly stopped and issued two verbal commands, would have been more plausible to the jury.25 Said differently, if Officer Thompson did actually have time to pause, issue verbal commands and assess Mr. Zehms response, it tends to prove that he acted out of a legitimate law enforcement purpose rather than the willful intent to deprive Mr. Zehm of his rights. While the government asserts that overwhelming evidence exists supporting the timing of the first two baton strikes, the governments factual assertions are inaccurate. An accurate review of the record proves that the governments evidence presented at trial was far from overwhelming.

25

This account was supported by eyewitness Dahl before the government dissuaded his testimony with a manipulative use of the video.
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1. Eye-Witness Testimony The government argues that there was ample eye witness testimony to establish that Officer Thompson hit Mr. Zehm in the head with his baton during the first two baton strikes. (Resp. Br. 7, 75.) To the contrary, only two of the nine eyewitnesses who could have witnessed the initial encounter claimed to have seen the baton strikes hit Mr. Zehms head. ER 1475, SER 181. One of those two witnesses only saw the baton graze the side of Mr. Zehms head and land on his shoulder, negating the claim that such a baton strike was intentional. ER 1475. Interestingly, in the governments response brief, it cites testimony from Greg Likarish to support its contention that witnesses observed that defendants first two baton strikes hit Zehm in the headER 1343, 1363 -1364. (Resp. Br. 7). The government makes this claim despite its later admission in the briefing that Mr. Likarish was impeached on cross-examination on this very point. The government admits that defendants counsel showed Mr. Likarish the video and highlighted that he appeared to be facing the cash register and not looking directly at the defendant and Zehm during the first strikesER 1357 -1361. (Resp. Br. 73 74.) The government uses Mr. Likarishs testimony as a sword in trying to establish that independent evidence exists supporting the unreasonableness of the first two baton strikes, yet as a shield when it argues that Fredericks evidence

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would not have been helpful during the cross-examination because some of the witnesses credibility had already been impeached. At trial, other witnesses testified that they saw where the first baton strikes landed, but testified to locations other than the head.26 Three of those witnesses claimed to have seen the initial baton strikes land on Mr. Zehms shoulder or upper body. ER 1494, 1919, 2023. Witnesses who observed most of the encounter also testified that they did not see any baton strikes hit Mr. Zehms head at any point during the confrontation. ER 1506, 1747. Other witnesses stated that the initial baton strikes hit Mr. Zehms leg. ER 1494, 1698. In fact, prior to the time the government met with Mr. Dahl and used its self-serving interpretation of the video (despite knowledge of Fredericks contrary views) to change his testimony, Mr. Dahls statement to the FBI was strikingly corroborative of Officer Thompsons account of the initial encounter. Mr. Dahl had told the investigating FBI agent that he looked over to Officer Thompson and Mr. Zehm, heard Officer Thompson instruct Zehm to drop the pop, and when Zehm failed to comply, [Officer Thompson] used his baton and hit Zehms leg. ER 1698. It should also be noted that throughout the governments discussion of eye witness testimony, it fails to mention that almost every witness testified that they heard Officer Thompson give verbal commands to Mr. Zehm and that Mr. Zehm
26

Other witnesses testified that they did not see where the initial baton strikes landed. ER 1457-58, 1747.
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violently refused to comply with Officer Thompsons attempt to restrain him. See ER 1391, 1512-13, 1693, 1698, 1746-49, 2030. 2. Medical Experts The government also contends that there was overwhelming medical evidence presented at trial indicating that Mr. Zehm was struck in the head with the baton. This assertion misrepresents the testimony offered at trial. An examination of testimony presented by both sides at trial demonstrates that the medical evidence supporting baton strikes to the head was highly contested and rebutted by the defense. See Jernigan, 492 F.3d 1050, 1054 (The Court must undertake a careful, balanced evaluation of the nature and strength of both the evidence the defense was prevented from presenting and the evidence each side presented at trial when evaluating the materiality.). In this case, the government offered the testimony of Dr. Harry Smith who opined that injuries to Mr. Zehms head and scalp were attributable to Officer Thompsons baton. SER 658, 688. Dr. Sally Aiken, the Spokane County Medical Examiner who performed the autopsy on Mr. Zehm, provided testimony that was much more equivocal. She testified that Mr. Zehms injuries to the head and scalp may be consistent with a baton, but that there were a number of potential things that could have caused the injuries and that there may be other explanations. SER 406-7, 416.

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Officer Thompson also presented two expert medical witnesses who opined regarding the mechanism(s) of injuries to Mr. Zehms head and scalp. Dr. Daniel Davis, a forensic pathologist who works as the Lane County Medical Examiner in Eugene, Oregon, testified that there was no medical evidence supporting the governments contention that Mr. Zehm was struck in the head with a baton. SER 3422. Dr. Davis testified [t]o a reasonable degree of medical certainty theres no evidence that [Mr. Zehm] was struck in the head with a baton. Id. Dr. Davis stated that the subgaleal injuries identified at autopsy likely represent blunt force injuries as a result of impact with a flat, bland surface or were the result of a traction injury. SER 3431. Furthermore, Dr. Davis opined that the injury over Mr. Zehms eyebrow was not the result of a baton strike. SER 3432. His reasoning was based upon the fact that the injury was not a tram track injury which would have occurred if it was the result of a baton strike. Instead, he opined that it was two separate injuries, one a scrape and the other a bruise. SER 3438-39. Officer Thompson also offered the testimony of Dr. James Nania, an Emergency Physician who served as the Emergency Room Medical Director at Deaconess Hospital in Spokane, Washington at the time Mr. Zehm was treated after the incident. Dr. Nania opined that he could find no place [in the] medical evidence [supporting] that [Mr. Zehm] was struck in the head with the baton. SER 3329. Dr. Nania stated that during Mr. Zehms evaluation at the hospital, including

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a CT scan, there was no sign of acute head or facial trauma. SER

3337.

Furthermore, Dr. Nania testified that the types of injuries present were inconsistent with a baton strike, and that if a baton strike actually occurred, the injuries would have had a different appearance. SER 3353-54, 3366, 3390. Certainly, the medical evidence presented by the government was far from overwhelming. In fact, the medical testimony provided by the government was critically cross-examined and rebutted by Officer Thompsons experts. Neither the eye-witness testimony nor the medical evidence presented by the government overwhelmingly established that Mr. Zehm was struck in the head with the baton. This further illustrates the importance of Fredericks evidence in rebutting the initial baton strikes because it would have aided Officer Thompsons ability to show the jury that the original encounter was reasonable. 3. Officer Thompsons Own Statements and/or Testimony The government also misrepresents Officer Thompsons own trial testimony regarding the timing of the initial baton strikes. It argues that the suppression of Fredericks exculpatory evidence is not material because Officer Thompson admitted, both in his recorded statement and at trial, to striking Mr. Zehm during the time frames proffered by the government. This argument is a blatant distortion of Officer Thompsons statement and testimony.

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When Officer Thompson gave his statement to investigators on March 22, 2006, he declined the opportunity to watch the video recording of the confrontation prior to giving his statement. ER 10-11. He did not want the video to distort his independent memory. ER 987. The statements he gave during that interview were not given in the context of any video timeframe. As explained by the district court, every second of the initial encounter is significant. ER 42. By adding an additional two seconds prior to the initial baton strike, it potentially changes the dynamic of the encounter. Therefore, the governments attempt to argue that he admitted to striking Mr. Zehm at 18:26:14 16 during his recorded interview is extremely unfair and misrepresents the nature and context in which the statement was made. The government also states that Officer Thompson admitted at trial that the video depicts the delivery and impact of his first baton strike at 18:26:15. (Resp. Br. 17). This statement is not correct. In the district courts Order Denying Defendants Motion to Dismiss the Indictment, Or, In the Alternative, Grant a New Trial, the courts observation demonstrates this misstatement by the government. The court stated: Frame 71 [18:26:15] played a significant role in the United States cross examination of the defendant. An AUSA attempted to get him to concede the first strike was completed in frame 70. He refused to make that concession. The AUSA then turned to frame 71. This is the one in which the defendant can be seen holding his
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baton in front of him at a 45 angle. Initially, the defendant said this frame depicted the delivery [of] his first baton strike; then he said it depicted the impact of the first strike; and then, when he reexamined the frame and realized it depicts him holding his baton in an upright position, he said he was unsure whether it depicted the first strike. ER 42. The district court then went on to explain how Fredericks evidence could have been significant in understanding Officer Thompsons confusion regarding what the video shows. The court explained: Mr. Fredericks would have explained why it was not unreasonable for the defendant to reject the United States interpretation of frames 70 and 71. Mr. Fredericks could have physically demonstrated to the jury why frame 71 may indicate the defendant was moving forward while holding his baton at a 45 angle rather than swinging at Mr. Zehm. If thats what frame 71 depicts, then its possible the first baton strike did not occur until after frame 75. ER 42. There is no tenable argument supporting the governments assertion that Officer Thompsons own testimony overwhelmingly establishes the occurrence of baton strikes at 18:26:14 through 18:26:16. To the contrary, Officer Thompson has denied the governments interpretation of the video. His uncertainty regarding what the video actually depicts illustrates the importance of Fredericks evidence and the prejudice suffered by him as a result of the governments suppression.

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4. Use Of Force Experts The government also argues that there was overwhelming evidence offered by its use of force experts demonstrating that Officer Thompson acted unlawfully during the initial encounter with Mr. Zehm. (Resp. Br. 76-77.) Again, the government fails to acknowledge this Courts obligation to review the entire record and analyze the evidence presented by the defense. Jernigan, 492 F.3d 1050, 1054. Officer Thompson offered the testimony of two police use of force experts: Terrance Preuninger and Larry Bowman. Terry Preuninger, the Spokane Police Departments Training Officer and Patrol Procedures Instructor with the Washington State Criminal Justice Training Commission, testified that Officer Thompsons actions were lawful. SER 3557. Specifically, Preuninger testified that Officer Thompsons risk assessment was accurate based upon the information known over radio dispatch and that his rapid advance was a good choice tactically and served a legitimate law enforcement purpose. SER 3596 -97. Preuninger also testified that Officer Thompsons use of the baton was a good choice to subdue the threat posed by Mr. Zehm. SER 3597, 3603. Additionally, Officer Thompson offered the testimony of expert Larry Bowman, a Spokane Police Detective and Firearms Instructor who was previously the lead defensive tactics instructor for the Montana Law Enforcement Academy. SER 3487. Upon moving to Spokane, Mr. Bowman became a master instructor for

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the side-handle and straight baton at the Washington State Criminal Justice Training Commissions Regional Training Center in Spokane, Washington. SER 3488-89. Mr. Bowman instructed Officer Thompson at the training center regarding use of a straight baton. SER 3490. Mr. Bowman testified that police officers are trained to basically take action first. SER 3522. After reviewing the evidence in this case, Mr. Bowman concluded that Officer Thompsons actions were appropriate and that they were consistent with his training. SER 3524. vi. Grant Fredericks Evidence is Not Cumulative While the district court did recognize the importance of Fredericks exculpatory opinions to rebut the governments theory regarding the timing of the initial baton strikes,27 it nonetheless failed to appreciate the scope in which the exculpatory evidence could have been utilized at trial and the resulting prejudice suffered by the non-disclosure. Evidence from the governments very own forensic video analyst rebutting its primary trial theme undoubtedly would have put the case in such a different light as to undermine confidence in the verdicts. Strickler, 527 U.S. at 290, 119 S. Ct. 1936; Kyles, 514 U.S. at 435, 115 S. Ct. 1555. Specifically, Officer Thompson was deprived the ability to cross-examine witnesses regarding Fredericks interpretation of the video and develop the fact that the government had knowledge, which it chose to conceal, that the video did The district court stated, [u]ndoubtedly, Mr. Fredericks would have helped the defendant. It is possible the verdicts would have been different. ER 51.
27

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not support its theory of the case. Undoubtedly, Officer Thompsons ability to cross-examine the governments key witnesses and to unwind Dahls change in testimony based on Fredericks video interpretation would have added a much stronger component to his defense. The government attempts to lessen the impact of its suppression by arguing that Officer Thompson was not prejudiced because of comparable testimony by his own expert, Michael Schott. While Michael Schott did have many opinions similar to Fredericks, it cannot be overstated that there is a significant difference between the ability of a defendant to cross-examine a key government witness with contradictory opinions of another government witness rather than simply relying on the opinions of a paid defense expert.28 In particular, Officer Thompson was deprived the ability to have the governments own expert, an instructor of Forensic Analysis and Digital Multimedia Evidence Processing for the Federal Bureau of Investigations National Academy,29 undermine the governments theme of the case. ER 2676, 2850. The use of this evidence would have added an entirely new dimension to Officer Thompsons defense that likely would have had a substantial impact on the jurys assessment of the governments case against him.
28

The jury heard testimony that Michael Schott was paid $250/hour for his work for the defense. ER 1207.
29

It must be highlighted that Fredericks is an authority in the field of forensic video analysis that is relied upon by the federal government to train its agents.

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Kohring, 637 F.3d at 905, 912 (Impeachment evidence, even if similar in nature to that already known to the defense, is material when it would have added an entirely new dimension to the credibility of a witness.). Additionally, Fredericks materials would have allowed Officer Thompson to introduce exculpatory evidence that the government developed in its investigation, a strongly persuasive factor when examined in light of reasonable doubt. The government also fails to acknowledge that the nature of Fredericks evidence was not identical to Mr. Schotts,30 and in some instances, the experts utilized different methodology to reach their conclusions. Significantly, Fredericks provided demonstrations and/or reenactments to the government which enabled the lay viewer to understand the limitations of the video. ER 35. Mr. Schott did not provide similar demonstrations. Fredericks also provided the government with alternative explanations for Officer Thompsons movements suggesting certain frames depicting the [] baton may be interpreted in an exculpatory manner. Id. He told the government that Officer Thompsons actions at 18:26:14 through 18:26:16

30

Confusingly, the government attempts to state in its brief that Mr. Schott asserted that Officer Thompsons first baton strike was consistent with Dr. Gills opinion that a baton strike is visible in Frames 74-75. (Resp. Br. 65). However, in the very next sentence the government states that Schotts evidence was consistent with Fredericks, including the opinion that the video does not demonstrate a baton strike until 18:26:37. Compare id., with SER 155.

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could be interpreted as a crouch, an aggressive or defensive posture, etc. ER 3131, see also ER 2712-13.31 The government cites a number of cases to support its contention that impeachment evidence is not material when considered to be cumulative. Each of the cases cited in support of this claim are markedly different than the situation present here. In U.S. v. Wilkes, 662 F.2d 524 (9th Cir. 2011), a government witness was granted immunity after months of decision making based upon proffers. Id. at 535. The defendant was given FBI interviews of the witness but not the proffer sessions. Id. The jury knew that the witness had immunity and also aware of the witness involvement in the crime. Id. The Ninth Circuit determined that because the witness was not critical to the government and the grounds for impeachment was known to the jury, the nondisclosure of the proffer sessions was not material. Id. at 536. Here, the jury did not know that the foundation used to shape the testimony of almost every government witnesses was based upon an incorrect

While the government denies that Fredericks ever mentioned specific alternatives to Officer Thompsons actions, including the possibility of him crouching or ducking, it does not dispute that Fredericks described the action at 18:26:14-16 as consistent with a number of possibilities. SER 741, ER 3136. Furthermore, the government has an affirmative obligation to seek out information in its possession that is favorable to the defense. U.S. v. W.R. Grace, 401 F. Supp.2d 1069, 1075 (D. Mont. 2005). This duty extends not only to information within the prosecutors possession, but also requires the government to learn of any exculpatory evidence known to others acting on the governments behalf. Gonzales v. Wong, 667 F.3d 965, 981 (9th Cir. 2011) (quoting Carriger v. Stewart, 132 F.3d 463, 479-80 (9th Cir. 1997) (en banc)).
31

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interpretation of the video. Furthermore, the jury did not know that the governments own witness had informed it of the limitations inherent in the video. Unlike the evidence in Wilkes, this evidence is completely different nature than that presented at trial and could have been used to challenge key government witnesses. The government also cites U.S. v. Collins, 551 F.3d 914 (9th Cir. 2009) to support its cumulativeness argument. In Collins, the defendant alleged a Brady violation as the result of the governments failure to disclose an audiotape recording between an informant and his confederate where the informant was threatened. Id. at 924. Prior to trial, the defendant was made aware of the threat and the informant was cross-examined regarding it at trial. Id. Additionally, during trial a federal agent testified as to the content of the recording including the threat. Id. at 925. This Court determined that the actual recording of the threat was not material because it had very little value as impeachment evidence; substantial evidence was introduced regarding the informants bias in favor of the government and his incentive to lie; overwhelming evidence was offered regarding the informants bad character; and information on the recording was offered at trial by a federal agent. Id. 924-25. Unlike Collins, Officer Thompson was not made aware of Fredericks interpretation of the video and his rejection of the governments theory regarding the initial baton strikes. No government agent offered Fredericks

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opinions at the time of trial. Officer Thompson was not able to cross-examine or impeach any witness at trial utilizing Fredericks interpretation of the video recording or offer any evidence that the government ignored its very own experts exculpatory interpretation of the video. Interestingly, the government also cites Kohring. However, a closer reading of Kohring makes clear that suppressed evidence similar in nature to information disclosed to a defendant but that adds an entirely new dimension to what the defendant knew before trial is material under Brady. Kohring, 637 F.3d 895, 909. Additionally, when the suppressed evidence could have been used to impeach a witness critical to the governments case, the evidence is especially material. Id. at 905-06. 1. Impeachment of Dr. Gill Would Not Have Been Cumulative Nor Insubstantial This Court has held that impeachment evidence is especially likely to be material when it impugns the testimony of a witness who is critical to the prosecutions case. Kohring, 637 F.3d 895, 905-06 (internal citations omitted.) At a minimum, when there is a reasonable probability that the withheld evidence would have altered at least one juror's assessment of a critical government witness, confidence cannot be maintained in the verdict. Id. at 906 (citing Price, 566 F.3d at 914 (quoting Cone v. Bell, 556 U.S. 449, 129 S. Ct. 1769 (2009))).

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In this case, the governments most critical witness was Dr. Richard Gill. His interpretation of the video was the foundation in which the prosecution was built. The government used Dr. Gills interpretation of the video throughout its case to establish that Officer Thompson abruptly attacked Mr. Zehm and later lied about it to investigators. Additionally, the government utilized Dr. Gills interpretation of the video to shape witness testimony and convince witnesses to change their exculpato ry testimony in favor of the governments case theory. See ER 1687-1733. As discussed in Appellants opening brief, Fredericks adamantly rejected Dr. Gills interpretation of the video. (Opening Br., 58.) His opinions could have been used to impeach Dr. Gills testimony and undermine his credibility in front of the jury. Officer Thompson was denied the ability to highlight the fact that Dr. Gill utilized Fredericks work product, as admitted by the United States, in formulating his opinions yet disregarded Fredericks findings about the limitations of the video. In particular, Officer Thompson was denied the ability to challenge the Baton/Taser Motion Reference Grid used during Dr. Gills testimony that was based upon a PowerPoint presentation created by Fredericks for the express purpose of preventing the viewer from inaccurately interpreting the baton

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motions as baton strikes.32 ER 3110. It is undisputed that Fredericks stills were used to create this summary; therefore, Fredericks actual interpretation of the video could have been used to impeach Dr. Gills analysis as to when the initial baton strikes actually occurred. The government argues that the ability to impeach Dr. Gill with Mr. Fredericks exculpatory opinions would have been inconsequential because the experts have different areas of expertise. (Resp. Br. 67.) In making this argument, the government completely ignores the fact that Dr. Gill does not have expertise in forensic video analysis which is the baseline for interpreting video imagery in the first instance. In other words, without the ability to discern what the video actually shows versus its limitations, there is no basis in which Dr. Gill can formulate his opinions in human factors and photogrammetrics. He cannot measure movements or body positions in the video without first understanding what is actually present in the images. If his analysis is based upon something that does not actually appear
32

The government represents in its briefing that Dr. Gill created the Baton/Taser Motion Reference Grid. (Resp. Br. 68). However, this assertion is contrary to the record and assertions made by the government to the district court. ER 3105. According to previous statements made by the government, Agent Lisa Jangaard made this exhibit to summarize the PowerPoint presentation created by Fredericks. Id. In a previous filing attacking Fredericks credibility, the government stated, Fredericks most recent affidavits once again substantively contradict the very video stills that Fredericks prepared for the United States to support the Baton Taser Motion Exhibit that the United States offered and which was admitted, without objection, at trial. See Fredericks prepared Ex. 010 (video stills support baton (strike) motions below, U.S. admitted Trial Exhibit #356 [Baton/Taser Motion Reference Grid]; and ECF 954, 964.) SER 769-70.
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in the video or is distorted, as in this case, his opinions are impeachable. The fact that Dr. Gill did not have the expertise to fully consider the limitations of the video in his own analysis underscores the need for Fredericks analysis in explaining the visual inaccuracies of the video. It also emphasizes how deceiving the video is to a lay-viewer and explains why the video does not tell the whole story. The ability to use the opinions of the governments own forensic video analyst to impeach Dr. Gills conclusions would have made a dramatic impact on Officer Thompsons ability to rebut the governments case. As the district court noted, Dr. Gills determination concerning the timing of the first baton strike had significant implications. ER 27. The court recognized that [i]t is possible the verdicts were based, in whole or in part, upon Dr. Gills testimony concerning the first two baton strikes. ER 30. However, [h]ad the jurors heard Mr. Fredericks views, they may have been less inclined to accept Dr. Gills opinions concerning the first baton strike. ER 40. Indeed, if Fredericks evidence had been disclosed, there is a reasonable probability that the withheld evidence would have altered at least one jurors assessment regarding Dr. Gills testimony and the timing of the initial baton strikes. Kohring, 637 F.3d 895 at 906 (citing Price, 566 F.3d at 914 (quoting Cone v. Bell, 556 U.S. 449, 129 S. Ct. 1769 (2009))). Therefore, confidence cannot be maintained in the verdicts.

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2. Impeachment of Use of Force Experts Would Not Have Been Cumulative Nor Insubstantial The government argues that Officer Thompson was not prejudiced by his inability to use Fredericks suppressed evidence during the cross -examination of its use of force experts. This argument has no merit. As the district court noted, the government relied, in part, upon use of force expert Robert Bragg to interpret the video recording. ER 23. Mr. Bragg testified that he was able to discern sufficient information from the security videos in order to evaluate the defendants conduct. ER 23. He reached his conclusions despite the fact that he has no expertise in forensic video analysis. ER 42-43. Mr. Bragg was critical of Officer Thompsons initial confrontation with Mr. Zehm. ER 1786-87. He testified: [I]n terms of approaching someone in an investigatory stop, and applying physical force from the get-go, where there appears to be no aggression shown on the video and, in fact, Zehm is moving backwards after he turns around. So again, irrespective of the level of force in terms of lethal force or not, the fact that the encounter started with arguably immediate force or use of a baton, when you hadnt established - he hadnt identified himself asa Spokane Police Officer.Ergo, using force - physical force like this in a situation where youre simply trying to investigate, detain someone to find out if they are in fact the person that was involved in a possible crime, goes way against our training. ER 1786-87. When asked about Officer Thompsons initial use of force, Bragg testified, [I]n total, the idea is that based on all things I reviewed [includi ng the
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video], and his actions, it didnt serve a legitimate law enforcement purpose, i.e., controlling someone, contacting, getting information. ER 1798. The district court erroneously determined that because it could not discern from Mr. Braggs testimony which images he relied upon to form his opinions, he could not determine the impeachment value of Mr. Fredericks evidence. ER 43. However, it is clear from his testimony that Bragg was critical of Officer Thompsons immediate force or use of a baton, consistent with the governments theory of the case. Fredericks interpretation of the video could have been used to challenge his testimony. As mentioned above, the ability to impeach a government expert with the opinion of another government expert who is an authority in the field in question is an invaluable tool at trial. Essentially, due to Mr. Braggs lack of expertise in interpreting the video, his analysis was based upon his assumption(s) of what the video actually depicts. The ability to demonstrate to the jury that the governments own forensic video analyst determined that Mr. Braggs assumption(s) regarding the video was incorrect; therefore, the basis for his opinion was incorrect, would have had significant implications at trial and would have undermined his credibility before the jury.

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This same strategy could have also been utilized with government expert Joseph Callanan, who also relied upon his own interpretation of the video in forming his opinions regarding Officer Thompsons initial use of force. 3. Impeachment of Lay Witnesses Would Not Have Been Cumulative Nor Insubstantial The government argues that Fredericks evidence would have been cumulative or insubstantial during the cross-examination of lay-witnesses because many of witnesses were already impeached during trial by defense counsel. While many of the witnesses questioned at trial gave testimony inconsistent with previous statements made to investigators, Fredericks evidence would have added an entirely new dimension to Officer Thompsons ability to cross -examine the witnesses. As discussed above, evidence is material when it would have added a new dimension to the credibility of a witness. Kohring, 637 F.3d at 905, 912. Most of the governments lay witnesses were shown the video by the government during pre-trial meetings to refresh their recollection of the incident. ER 1705-09, 1737, 1922, 2007. In at least one instance, the government used its partisan interpretation of video to convince Michael Dahl to change his testimony regarding the initial baton strikes, despite the governments knowledge of Fredericks opinion as regarding the video. Had Officer Thompson known of Fredericks favorable opinions, defense counsel would have been able to cross-examine Mr. Dahl and expose that the
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premise the government used to change his exculpatory testimony was rejected by its very own forensic expert. Further, because the government used the video with other lay witnesses, Officer Thompson was deprived the ability to cross-examine them regarding the governments pre-trial use of the video to shape their testimony in light of the fact that it knew its interpretation of the initial encounter was not supported by the evidence. Defense counsel would have been able to highlight the weaknesses of the governments case through eye witnesses by demonstrating to the jury that the governments theory regarding the timing of the initial baton strikes, based upon Dr. Gills theory, was not supported by the evidence of its own forensic video analyst and that the video cannot be relied upon for that purpose. vii. The Government Knowingly and Intentionally Withheld Grant Fredericks Evidence The government argues that government counsel and the Agent assigned to this case did not intentionally violate Brady or act in bad faith. (Resp. Br. 79.) Despite this claim, the record demonstrates that the governments knowing and intentional conduct speaks for itself. The district court erred when it determined that the go vernments actions in suppressing Fredericks exculpatory evidence were not intentional. Interestingly, the district court offered possible justifications for the governments actions by stating: It ispossible the FBI Special Agent and the AUSA mentally blocked out those parts of [Fredericks] comments that were inconsistent with their theory
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of the confrontation between the defendant and Mr. ZehmPerhaps the Assistant United States Attorney and the FBI Special Agent were not prepared to hear what he was saying. ER 36, 52. Courts cannot condone this type of behavior by the government officials.33 A prosecutor is not permitted to simply block out evidence damaging to their case or ignore the existence of exculpatory information. It is the

governments job, its duty, to ensure that justice is served. Our justice system cannot allow the government to be an architect of the truth. As recognized by Chief Judge Kozinski in a dissenting opinion recently filed in this Court, [t]here is an epidemic of Brady violations abroad in the land. United States v. Olsen, 737 F.3d 625, 626 (9th Cir. 2013) (Kozinski, J. dissenting). Only judges can put a stop to this unsettling trend. Id. (internal citations omitted). The governments role in the criminal justice system is not simply to win. U.S. v. Kojayan, 8 F.3d 1315, 1324 (9th Cir. 1993). [L]awyers representing the government in criminal cases serve truth and justice first. Id. at 1323. In this case, the government ignored its obligations to seek the truth and instead took affirmative steps to hide exculpatory evidence from the defense. As noted by Chief Judge Kozinski, When a public official behaves with such casual disregard for his constitutional obligations and the rights of the accused, it erodes the publics trust in our justice sy stem, and chips away at the foundational premise of the rule of law. When such transgressions are acknowledged yet forgiven by the courts, we endorse and invite their repetition. United States v. Olsen, 737 F.3d 625, 632 (9th Cir. 2013) (Kozinski, J. dissenting).
33

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Whether AUSA Durkin and Special Agent Jangaard were mentally prepared to hear Fredericks exculpatory opinions has no bearing on whether they failed to perform their constitutional duty to disclose the evidence to the defense. Notwithstanding, AUSA Durkin did not block out Fredericks exculpatory opinions. He was aware that Fredericks would damage the governments case against Officer Thompson and took intentional and knowing steps to hide his evidence from the defense. The government was aware, as early as 2007, that Fredericks held

exculpatory evidence regarding the timing of the initial baton strikes. AUSA Durkin and Special Agent Jangaard participated in at least two meetings where Fredericks adamantly rejected the governments theory of the case and explained his exculpatory opinions. The district court found that maybe there was a misunderstanding during these meetings. However, the government does not dispute the fact that AUSA Durkin and Fredericks fought over Fredericks opinions and that AUSA Durkin was angry with Fredericks for refusing to adopt the governments theory of the case. AUSA Durkin has never disputed the fact that these angry confrontations occurred. Special Agent Jangaard does not dispute these angry confrontations occurred. She simply offers her opinion that they were not inappropriately confrontational or aggressive. SER 740. Furthermore, the government never disputes that Fredericks actually engaged in demonstrations to

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assure that the government understood why its interpretation of the video was false. Quite simply, there was no misunderstanding. There was confrontation. Fredericks opinions and demonstrations by reenactment (that Fredericks and AUSA Durkin participated together in) were clear. Fredericks told the government repeatedly that the video cannot be used to establish that baton strikes occurred at 18:26:14 through 18:26:16. When Fredericks refused to adopt the gove rnments theory of the initial encounter, the government found an expert that would testify consistent with its theory of the case, Dr. Richard Gill. It required Fredericks to sign a confidentiality agreement. ER 2662-2666. Next the government crafted a series of misleading discovery disclosures that led defense counsel to believe Fredericks would testify that baton strikes are depicted in the video at 18:26:14 through 18:26:16. Namely, the Rule 16 disclosure attributed inculpatory opinions to Fredericks including the delivery of the initial baton strikes at 18:26:14 through 18:26:16. The government made this disclosure despite the fact that Fredericks adamantly rejected this opinion and characterized it as a fabrication. The government also engaged in a strategic use of the grand jury and requested that Fredericks create a supplemental report which distorted his actual analysis of the video imagery. The government repeated these falsities in Special Agent Jangaards FBI 302 report, its final disclosure, which led defense

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counsel to believe that Fredericks changed his opinion as contained in his 2006 report and agreed that baton strikes occurred at 18:26:14 though 18:26:16. See Benn v. Lambert, 283 F.3d 1040, 1061 (9th Cir. 2002) (A Brady violation can occur when tentative opinions suggesting potentially exculpatory evidence are displaced by subsequent disclosures by the government). The government also used a cross-examination opportunity in an unrelated case out of the Southern District of New York, U.S. v. Simoes, in an attempt to trap Fredericks into supporting its theory. ER 145, 154. As the district court noted, there are only two ways that the AUSA in Simoes knew to ask questions regarding Fredericks participation in this case: either she had a copy of the FBI Special Agents report concerning the March 2007 meeting with Mr. Fredericks, or she had been apprised of the reports contents. ER 37. The information regarding Fredericks work in this case was not public at that time. ( See supra, pp. 12). The only way the AUSA would have had information about Fredericks alleged change in opinion is through AUSA Durkin or Special Agent Jangaard. The government has never explained how the AUSA in New York knew to question Fredericks about his work in this case.

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A likely reason that Fredericks was questioned in Simoes about his work in this case was to pin him down on the record regarding his changed opinion(s). 34 When Fredericks stood by his 2006 report, the government was not able to create the record it had hoped for. Notably, it was important enough for the government to obtain a transcript of that cross-examination. More strikingly, the government never provided the transcript to the defense. At trial, the government entered Fredericks work product into evidence through other witnesses. The government used the Baton/Taser Motion Reference Grid, throughout trial and closing arguments to establish the ti ming of the initial baton strikes. It used this exhibit despite the fact that it was based upon Fredericks work product created for the purpose of demonstrating that the video does not show the initial baton strikes at 18:26:14 through 18:26:16. The government did have Fredericks travel to Yakima during trial. However, it did not call him to the witness stand. ER 21, 2732. Admittedly, the government was worried about Fredericks on cross-examination. ER 84, 112. Fredericks told AUSA Durkin, Im not surprised, I didnt think I was going to be helpful to your case. AUSA Durkin smiled, shook his head and said, probably not. ER 2731 34

It is quite puzzling why the government would allow its own expert to be impeached regarding his work in this case prior to the time he testified at trial. A plausible explanation for this is that the government never intended to have Fredericks testify in this case, and instead retained him for the sole purpose of keeping his opinions from the defense.

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32.35 This telling conversation illuminates AUSA Durkins knowledge that Fredericks held exculpatory opinions that would have helped the defense. Fredericks exculpatory opinions were not misunderstood. AUSA Durkin chose, instead of fulfilling his constitutional duty to inform the district court and defense counsel that Fredericks had exculpatory information that required disclosure under Brady, to continue upon his course of concealment. 36 At trial it also became clear that the government used its theory of the initial baton strikes to influence the testimony of eye witnesses. At the time, defense counsel was unaware that the government had knowledge that its own forensic video analyst rejected its theory. As outlined above, the government used its false interpretation of the video to manipulate the previous statements of eye witness Mr. Dahl so that he would testify in favor of the government. The lengths the government took to purposefully manipulate Fredericks evidence in this case are egregious. The governments actions have deprived Officer Thompson of his fundamental right to due process and undermined our criminal justice system as a whole. The government argues that the history of disclosures in this case demonstrates that it took its obligation under Brady seriously. The prosecutors in Kohring made a similar argument. Kohring, 637 F.3d
35

AUSA Durkin has never refuted this conversation. Supra, note 11 regarding AUSA Durkins misrepresentation to the district court.

36

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at 912. However, simply because the government discloses voluminous amounts of materials has no bearing on whether Brady materials are suppressed. The number of disclosures made is irrelevant if even one item of Brady material is wrongfully withheld. In this case, the record demonstrates that the governments tactical approach to the disclosure of Fredericks evidence was intentional and that Brady material was suppressed. The government urges the Court not to consider its intentional conduct as an indicator of materiality. While the Ninth Circuit has not addressed this issue, other courts have. The Seventh Circuit Court of Appeals has determined that bad faith on part of the prosecution is probative of materiality because it is doubtful that any prosecutor would in bad faith act to suppress evidence unless he or she believed it could affect the outcome of the trial. United States v. Jackson, 780 F.2d 1305, 1311 n. 4 (7th Cir.1986). The Third Circuit has also found that bad faith by the prosecution is a factor that should be considered by a court when weighing the materiality of the withheld evidence. U.S. v. Mitchell, 365 F.3d 215, 255 (3d Cir. 2004). Here, this Court should look to the existence of bad faith on part of the prosecution and determine that it is probative of materiality. If Fredericks evidence was not material, the government would not have gone to the lengths it did to suppress it. There is no doubt that if Fredericks had inculpatory evidence to offer the government, he would have been the first witness called to the stand.

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Fredericks evidence would have affected the outcome of trial. This Court must consider the governments actions in this case in suppressing his evidence from the defense in making its determination regarding materiality and determine that confidence cannot be maintained in the jurys verdicts. viii. Officer Thompson Did Not Abandon His Argument That The Indictment Should Be Dismissed. The government argues that Officer Thompson did not specifically request that the Indictment be dismissed against him in his Opening Brief; therefore, the argument is waived. The governments argument is in error. Officer Thompsons Opening Brief clearly articulates that he is appealing the district courts denial of his Motion to Dismiss the Indictment, or, in the Alternative, Grant a New Trial based upon the governments intentional Brady violations. The issue central to this appeal is whether the district court erred in determining that the suppression of Fredericks exculpatory evidence was not material. Officer Thompson also argues that the governments suppression of the evidence was intentional and knowing and that this Court should exercise its supervisory authority and dismiss the Indictment. As this Court made clear in Kohring, when it determines that a Brady violation has occurred, it may decide an appropriate remedy. Kohring, 637 F.3d at 912. When there is sufficient evidence to conclude the prosecution acted flagrantly, willfully, and in bad faith, it can exercise its supervisory authority by
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dismissing the Indictment. Id. at 912-13. In addition to showing that Fredericks evidence is material, Officer Thompson has also shown that sufficient evidence exists for this Court to conclude that the government acted willfully and in bad faith in this case. Therefore, as set forth in his Opening Brief, Officer Thompson requests this Court to exercise its supervisory authority and dismiss the Indictment. Alternatively, Officer Thompson requests that a new trial be granted. IV. CONCLUSION The district court committed error in determining that the suppression of Grant Fredericks exculpatory evidence did not prejudice Officer Thompson to a level undermining confidence in the verdict. Defendant-Appellant Thompson respectfully requests the Court to reverse the district courts order denying Defendants Motion for Dismissal, or alternatively, Motion for New Trial. Officer Thompson requests the Court to exercise its supervisory authority and dismiss the Indictment. Kohring, 637 F.3d at 912-13. Alternatively, Officer Thompson requests this Court to grant a new trial. Id. The district court abused its discretion in admitting evidence of Zehms innocence, unknown and unchallenged by Officer Thompson at the time of the confrontation. The district courts decision to allow the government to introduce such evidence substantially prejudiced Officer Thompsons right to a fair trial

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warranting reversal of Officer Thompsons convictions under both 18 U.S.C. 242 and 1519. The district courts failure to accurately instruct the jury in accordance with the law as to the intent element of 18 U.S.C. 242 substantially prejudiced Officer Thompsons constitutional right to due process. As a result, his conviction on Count I should be reversed. The court erred in denying Officer Thompsons Motion for New Trial based upon jury misconduct. The extraneous evidence considered by the jury violated Officer Thompsons right to cross-examine witnesses under the Confrontation Clause, therefore, a new trial should be granted on Count II.

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RESPECTFULLY SUBMITTED, Dated this 10th day of January, 2014. ETTER, MCMAHON, LAMBERSON, ETTER, MCMAHON, LAMBERSON, CLARY & ORESKOVICH, P.C. CLARY & ORESKOVICH, P.C. s/Carl J. Oreskovich________________ Carl J. Oreskovich Attorney for Appellee Karl F. Thompson, Jr. 618 W. Riverside Avenue, Suite 210 Spokane, WA 99201 (509) 747-9100 (t) | (509) 623-1439 (f) Email: carl@ettermcmahon.com ETTER, MCMAHON, LAMBERSON, CLARY & ORESKOVICH, P.C. s/Stephen M. Lamberson_____________ Stephen M. Lamberson Attorney for Appellee Karl F. Thompson, Jr. 618 W. Riverside Avenue, Suite 210 Spokane, WA 99201 ((509) 747-9100 (t) | (509) 623-1439 (f) Email: lambo74@ettermcmahon.com s/Courtney A. Garcea_______________ Courtney A. Garcea Attorney for Appellee Karl F. Thompson, Jr. 618 W. Riverside Avenue, Suite 210 Spokane, WA 99201 (509) 747-9100 (t) | (509) 623-1439 (f) Email: cgarcea@ettermcmahon.com

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STATEMENT OF RELATED CASES Counsel for Appellee certifies that no cases are pending in this Court that are related to the issues presented in the instant appeal.

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CERTIFICATE OF COMPLIANCE This reply brief is accompanied by a motion for leave to file an oversize brief pursuant to Circuit Rule 32-2 and is 16,620 words, excluding portions exempted by Fed. R. App. P. 32(a)(7)(B)(iii), if applicable.

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CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on January 10, 2014.

The participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system.

I further certify that some of the participants in the case are not registered CM/ECF users. I have mailed the forgoing document by First-Class Mail, postage prepaid to the following non-CM/ECF participant: Victor Boutros, U.S. Dept. of Justice, Civil Rights Division.

s/Carl J. Oreskovich Carl J. Oreskovich Attorney for Appellee Karl F. Thompson, Jr.

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