Argued and Submitted Jan. 8, 2013.
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John Lanahan (argued), San Diego, CA, for Petitioner-Appellant.
Kamala D. Harris, Dane R. Gillette, Lance E. Winters, Kenneth C. Byrne, and David A. Wildman (argued), Office of the Attorney General of California, Los Angeles, CA, for Respondent-Appellee.
Appeal from the United States District Court for the Central District of California, Percy Anderson, District Judge, Presiding. D.C. No. 2:03-cv-00078-PA-E.
Before: WILLIAM A. FLETCHER and JOHNNIE B. RAWLINSON, Circuit Judges, and ALVIN K. HELLERSTEIN, Senior District Judge.[*]
Opinion by Judge Hellerstein; Dissent by Judge Rawlinson.
HELLERSTEIN, Senior District Judge:
Violence between street gangs is a scourge to communities. The prosecutors who prosecute crimes committed by these gangs perform a vital service. But prosecutors must be vigilant that excessive zeal does not violate a defendant's constitutional right to a fair trial. When that occurs, the courts must balance the needs of the community with a defendant's constitutional right to a fair trial.
Randall Amado was convicted in 1998 by a Los Angeles jury of aiding and abetting a senseless murder in a public bus. The prosecutor neglected, however, to discharge his obligation to disclose material information that would have enabled defense counsel to impeach the credibility of a critical witness against Amado. We hold in this opinion that the prosecution's failure, in violation of clearly established federal law as determined by the U.S. Supreme Court, requires that Amado be given a new trial.
I. The Facts of Record and the Prior Proceedings
A. The Shooting
In 1996 and 1997, the Bounty Hunter Bloods and 118 East Coast Crips were rival street gangs in southern Los Angeles. Some members of the Bounty Hunter Bloods gang attended Centennial High School, and traveled to and from school on public bus No. 53 through neighborhoods claimed by the 118 East Coast Crips. The gang members identified themselves by the colors of their clothing: red for the
Bloods, and blue for the Crips. As bus No. 53 passed through the Crips' neighborhoods, members of the Bloods gang on board frequently taunted, flashed gang signs at, spit at, and threw objects at Crips gang members standing at the bus stops.
On January 15, 1997, two members of 118 East Coast Crips, Robert Johnson and Wilbert Pugh, decided to retaliate. Their friend, Nicholas Briggs, overheard the two propose that a large group of Crips board bus No. 53 and attack Bloods members inside. Briggs testified that Johnson carried a gun at that meeting, but that there was no discussion of shooting anyone. Johnson and Pugh decided that the attack would occur the next day, but Briggs had a court appearance to attend and declined to join them.
The following afternoon, Johnson, Pugh, and a group of their friends met near the intersection of Imperial Highway and Avalon Boulevard. When a No. 53 bus approached, at about 3:20 pm, Pugh yelled " Y'all ready?" and the group moved toward the bus as it pulled into a bus stop. Pugh and at least one other unidentified gang member boarded the bus, and Pugh cursed the Bounty Hunter Bloods members in the back. One of the Crips, possibly Pugh, shouted " Shoot this m____ f____ bus up," and the Crips exited. Johnson, behind the bus, poked a gun through the rear window, aimed at a passenger dressed in red, and fired, hitting two others. Corrie Williams, a student at Centennial High School, was shot in the neck and killed. Tammy Freeman, her friend, was shot in the arm. The bus driver sped off, stopping a few blocks away when he felt it was safe.
B. The Arrest and Prosecution
Amado was arrested with Briggs the next night. At the time, Amado and Briggs were drinking and smoking marijuana in a backyard near the location of the shooting, and across the street from Amado's home. Johnson and Pugh fled to Milwaukee, Wisconsin. Johnson was arrested in Milwaukee approximately a week after the murder, and he confessed to the shooting. Pugh was also arrested in Milwaukee, although not until a year after the bus attack occurred.
Amado was indicted in Los Angeles Superior Court on charges of first degree murder, premeditated attempted murder, assault with a firearm, and shooting at an occupied motor vehicle. The prosecution accused Amado of aiding and abetting the shooting by running with Crips gang members to ambush and surround the bus, and by carrying a gun to the scene.
The court and prosecution were concerned about intimidation of witnesses, and retaliation against those who testified. This fear was driven in part by the fact that Pugh was still at large at the time the proceedings began. Based on interviews of witnesses in camera, the Superior Court ordered that the addresses and phone numbers of witnesses be withheld from the defense, and that the prosecution make witnesses available for interviews by the defense at the courthouse. Warren Hardy was one of those witnesses, but Amado's trial counsel, Richard Lapan, did not interview him.
Pugh, Johnson, and Amado were tried together before two juries, one for Johnson, the alleged shooter, and the second, for Pugh and Amado, the alleged aiders and abettors. While many witnesses testified as to Pugh's and Johnson's roles in the shooting, the evidence against Amado was more limited. Two witnesses testified that Amado was part of the group that gathered at the bus stop. John Grisson, a high school classmate of Amado, testified on direct that he was at the intersection of Imperial Highway and Avalon Boulevard,
and saw Amado, with others, running toward the bus. However, when pressed on cross Grisson testified that when he had seen Amado with the group it had been a few minutes before the shooting, and that he did not see Amado run toward the bus prior to the shooting, or away from the bus after the shooting. The second of the two witnesses, Natasha Barner, Pugh's girlfriend at the time of the shooting, testified that she saw Amado, along with a crowd, " coming across the street" toward the bus stop prior to the shooting. Barner said that she did not see Amado with a gun. Barner, corroborated by another witness, testified that she knew only that Johnson and Pugh were members of 118 East Coast Crips, and no witness testified that Amado was a member of the gang. Amado, however, did have the nickname " Bang," which some viewed as a gang moniker.
Warren Hardy, who originally identified himself to the police as Warren Collins, was the key witness against Amado. Hardy lived less than a block from the intersection of Imperial Highway and Avalon Boulevard. Hardy testified that, from his balcony, minutes before the shooting and from a distance of approximately 35 feet, he saw a short, chubby boy with slicked-back hair and a pony-tail carrying a handgun and trailing a group of teenagers heading towards Avalon Boulevard. Hardy testified that he then heard gunfire, and, shortly after, he saw several of these same teenagers run down the street. The next night, Hardy testified, he heard several teenagers behind his building talking and laughing about the shooting. Hardy testified that he called the police, who responded, found Amado and Briggs in the area where Hardy had placed the laughing teenagers, and arrested them.
At trial, Hardy could not identify Amado, neither as the person who he said had carried a gun, nor as one of the teenagers who had gathered the next night behind his building. The best that Hardy could do was to identify Amado's hairstyle as similar to the hairstyle of the person he saw with the gun. On cross examination, Hardy testified that his vision was poor, that he could not remember key details about what he saw behind his building, and that he did not want to testify because he feared for his safety.
Because of Hardy's reluctance to testify and his lack of memory, the prosecution called LAPD Detective Michelle Esquivel to testify about statements Hardy made the day after the shooting, at the time of Amado's arrest. Esquivel, reading from the notes she had taken while interviewing Hardy, testified that Hardy had identified Amado as the person who had carried a gun to the shooting. Esquivel quoted Hardy as describing the teenager as a " light-skinned, chubby male black ... [with] a blue short-sleeved shirt, and his hair was long, slicked back." Esquivel wrote that when the police informed Hardy that Amado and Briggs had been arrested, a fellow detective asked if they
" had the correct guys," and Hardy answered, " Yes."
During closing arguments, the prosecution emphasized Hardy's statement to the police that Amado carried a gun as reliable evidence of his guilt:
Now, what did Mr. Hardy say? Randall Amado or somebody that looks like him is the guy that he saw on January the 16th, 1997, carrying a gun. The only reason why he is going to say that, or say words to the effect of he's possibly the guy that did the shooting is because he thinks that's the guy who he saw on January the 16th, 1997, with a gun. That's the only reason why you make that statement. The only reason. Now, why is Randall Amado carrying a gun to a fistfight? Is it because he himself thought this could possibly evolve into something else other than a fistfight? And if so, did he think in his own mind that the natural and probable consequences of agreeing to get into a fight could result in a shooting, so I better have myself armed before I go over there?
On November 30, 1998, Amado was convicted of all charges. He was sentenced to 27 years to life in prison.
C. Amado's Motion for a New Trial and His Appeal
After the jury's verdict of Amado's guilt, a copy of a probation report on Warren Hardy came into the possession of Lapan, Amado's trial counsel.  The report disclosed that Hardy had pleaded guilty to committing a robbery, that he was on probation for that offense, and that Hardy had been a member of the Piru Bloods, an affiliated Bloods gang. The prosecution had not disclosed those facts, or given the probation report on Hardy to Amado's counsel. Lapan then interviewed Hardy, and Hardy wrote out a declaration (the " Hardy declaration" ) stating that he had been convicted of robbery " out of the Long Beach court" and that he had been a member of the Piru Bloods.
Amado moved for a new trial on the ground that the prosecution had violated Brady v. Maryland,373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), in failing to disclose Hardy's probation report. At a hearing held January 25, 1999, Lapan presented the Hardy declaration and represented that he had " just received [Hardy's] file on the robbery when he pled guilty in 1996 that indicated he was a Piru Blood." Lapan argued that there was a reasonable probability that the result of the trial would have been different had this " newly discovered evidence" been available to impeach Hardy, and that Amado was entitled to a new trial under Brady. The State countered that Lapan had failed to diligently pursue information about Hardy and therefore Amado was not entitled to a new trial, and that the new evidence would not change Hardy's credibility. The State argued, based on how " the testimony played out ...