D.C. Circuit Orders New Trial Due to Brady Violations Involving Source of Information, Not Withholding of Information Itself
by Richard Resch
The U.S. Court of Appeals for the D.C. Circuit held that the prosecution violated its Brady disclosure obligations by withholding multiple law enforcement reports from the defendant, even though most of the information within the reports was available to the defendant from other sources, because the reports represent evidence from the government’s own records, which some jurors may have given greater weight to than the defendant’s own supposedly self-serving evidence.
In 2013, the DEA began investigating Ivan Robinson who worked as a nurse practitioner in Washington, D.C., specializing in back pain. As part of his treatment program, he consistently prescribed 60, 30 milligram pills of oxycodone. He charged $370 for treating patients and accepted only cash or money orders. Two local pharmacies began noticing a high volume of young patients all filling prescriptions from Robinson for the same 60, 30 milligram pills of oxycodone.
Three undercover DEA agents visited Robinson’s office posing as patients. He refused to treat one of them because she claimed that she suffers from foot pain, and he advised that he only treats back pain. The other two agents claimed to suffer from back pain, so he treated them. They alleged that Robinson barely examined them and failed to provide them with individualized care. Yet, he prescribed his standard regime of 60, 30 milligram pills of oxycodone to both of them.
Robinson was eventually indicted by a federal grand jury on dozens of counts of prescribing a controlled substance without a legitimate medical purpose under 21 U.S.C. § 841(a). The indictment listed eight actual patients and the two undercover agents who received treatment and a prescription from Robinson.
In 2017, he was tried before a jury in the U.S. District Court for the District of Columbia. The jury convicted him on 42 prescription counts. The District Court sentenced him to 135 months in prison.
After sentencing, Robinson moved for reversal of his convictions and a new trial, alleging Brady violations based on the prosecution’s failure to disclose three reports: “(1) two Pryor Reports, so named for DEA Agent Pryor, showing that Robinson called the DEA in 2011 to discuss fraudulent prescriptions … ; and (2) the ‘CCN’ Report from the D.C. Metropolitan Police detailing a specific instance in 2013 in which Robinson contacted law enforcement about a pill-seeker….” See Brady v. Maryland, 373 U.S. 83 (1963).
The District Court conducted a Brady analysis and determined that the Pryor Reports were, in fact, favorable to Robinson and were suppressed by the Government. However, the court concluded that the Reports were immaterial because they were cumulative of other evidence Robinson presented at trial, so suppression did not affect his ability to put forth a defense. Similarly, the court determined that the CCN Report was favorable but not suppressed. It concluded that the Report was also immaterial because there was a DEA report that contained all the relevant information in the CCN Report that was made available to Robinson. Thus, the District Court rejected Robinson’s Brady claims. He timely appealed.
The Court began its analysis by discussing the Brady rule, which requires the prosecution “to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial.” United States v. Bagley, 473 U.S. 667 (1985). Under Brady, suppression of favorable evidence that is material to either guilt or to punishment violates the defendant’s due process rights, regardless of “the good faith or bad faith of the prosecution.” Brady.
The Court noted that courts utilize a three-part test in analyzing whether the prosecution violated its Brady disclosure obligations: “ [t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching;  that evidence must have been suppressed by the State, either willfully or inadvertently; and  prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263 (1999). The Court explained that the prejudice requirement entails materiality in that “evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Brady. The Court further explained that the “reasonable probability” standard is not demanding because the prosecution’s burden at trial is so demanding. See United States v. Agurs, 427 U.S. 97 (1976), holding modified by Bagley.
Turning to the Pryor Reports, the Court agreed with the District Court that they were favorable to Robinson as well as suppressed by the prosecution. The Pryor Reports detailed several instances of Robinson himself contacting the DEA and the police to report suspected misconduct of others regarding attempts to fraudulently obtain prescriptions for oxycodone, including one occasion where he told law enforcement that he had lost 80 patients to pill-seeking.
Unlike the lower court, however, the Court determined that the Pryor Reports were not cumulative of Robinson’s own evidence of his actions in attempting to thwart pill-seekers introduced at trial and were thus material under Brady. The Court stated “the Pryor Reports represent evidence from the government’s records themselves that Robinson actually reported his patients’ illegal activity to authorities” and reasoned that some jurors “may have given far greater weight to the government’s own reports that Robinson did report the behavior over Robinson’s supposedly self-serving evidence testifying he would have reported such behavior.” (emphasis in original) Thus, the Court held that the Pryor Reports were material because there is a reasonable probability that the result of the proceeding would have been different had they been properly disclosed, and thus, the prosecution violated its Brady disclosure obligations.
The Court then addressed the CCN Report, which detailed an incident in which Robinson contacted the police to report a patient he suspected of being a pill-seeker. His office determined that the patient’s referral was fraudulent, and he physically retrieved the prescription for oxycodone from the patient once police arrived at his office.
The Court determined the CCN Report was favorable to Robinson, as did the lower court. The District Court ruled that the CCN Report was not withheld from Robinson because the information it contained was about the same incident reported in a DEA report that was provided to Robinson, but the Court disagreed on this point. It explained that the District Court’s analysis with respect to the availability of the same information from a different source “correctly describes the classic Brady violation.” However, this situation is different than the classic Brady violation, stated the Court, explaining that the “prejudice to the defendant here occurs not from the lack of information contained in the Report, but from the inability to provide the more convincing source corroborating the information contained therein.” See In re Sealed Case No. 99-3096 (Brady Obligations), 185 F.3d 887 (D.C. Cir. 1999). Thus, the Court held that the CCN Report was material and that the prosecution committed a second Brady violation.
The Court then addressed the issue of the appropriate remedy for a Brady violation, noting that the remedy is a new trial. See Kyles v. Whitley, 514 U.S. 419 (1995) (upon a finding of a Brady violation, “a new trial follows as the prescribed remedy, not as a matter of discretion”). Consequently, the Court held that Robinson is entitled to a new trial because of the two Brady violations.
Accordingly, the Court reversed the District Court on its Brady decisions and remanded for a new trial. See: United States v. Robinson, 68 F.4th 1340 (D.C. Cir. 2023).
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