MAYNARD v. GOVERNMENT OF VIRGIN ISLANDS

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case/united-states-v-starusko#p262729 F.2d 256, 262 (3d Cir. 1984) ("No denial of due process occurs if Brady material is disclosed in time for its effective use at trial." (quoting United States v. Higgs, 713 F.2d 39, 44 (3d Cir. 1983))). To prove a Brady violation, the defendant must show that "(1) the government withheld evidence, either willfully or inadvertently; (2) the evidence was favorable, either because it was exculpatory or of impeachment value; and (3) the withheld evidence was material." Lambert v. Blackwell, 387 F.3d 210, 252 (3d Cir. 2004). "Evidence is `material' where there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A `reasonable probability" is a probability sufficient to undermine confidence in the outcome." Simmons v. Beard, 590 F.3d 223, 234 (3d Cir. 2009) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)); see also United States v. Pelullo (Pelullo I), 105 F.3d 117, 123 (3d Cir. 1997) (requiring the defendant to show that the alleged Brady violation "resulted in a verdict unworthy of confidence"). However, "the government is not obliged under Brady to furnish a defendant with information which he already has or, with any reasonable diligence, he can obtain himself." United States v. Pelullo (Pelullo II), 399 F.3d 197, 202 (3d Cir. 2005) (quoting Starusko, 729 F.2d at 262). A defendant who proves a Brady violation is entitled to a new trial. See Kyles v. Whitley, 514 U.S. 419, 435, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (stating that, when analyzing a Brady claim, "once a reviewing court . . . has found constitutional error, there is no need for further harmless error review").

Maynard contends that the government violated Brady by failing to disclose the identity of the January 1 arrestees and the records of Weeks's drug treatment. We discuss each of those pieces of evidence in turn.

A. Identity of the January 1 Arrestees

Maynard's first Brady challenge is somewhat unusual in that he contends that the government suppressed the names of the January 1 arrestees even though he received those names during trial, entered them into evidence, and urged the jury to draw an inference that one of them was connected to the murder weapon. Thus, Maynard cannot — and does not — argue that the arrestees' names were exculpatory solely because they showed that someone other than himself could have possessed the AK-A7. Instead, Maynard argues that the government's failure to disclose the arrestees' identities violated Brady because, had he received their names in advance of trial, he could have investigated the individuals and potentially shown that one of them actually possessed the weapon, and perhaps he could even have linked one of them to the murder of Adolph, Sr. However, defense counsel never spoke with any of the arrestees after learning their names, even though one month had elapsed between the end of Maynard's trial and the Court's formal ruling on his Brady challenge, nor did he request an extension of time to conduct such an investigation. We are therefore left to guess whether he could have successfully contacted them and what, if any, information such an investigation might have revealed. Accordingly, and as more fully detailed below, Maynard's Brady claim involving the identities of the January 1 arrestees fails.

1. Suppression, by the Government

The first element of a Brady claim requires the defendant to show that the government suppressed evidence. Lambert, 387 F.3d at 252. The government's Brady obligations attach to all exculpatory evidence in the government's actual or constructive possession. A prosecutor has constructive possession of evidence if, "although [he] has no actual knowledge [of the evidence], [he] should nevertheless have known that the material at issue was in existence." Pelullo II, 399 F.3d at 218 n. 23 (quoting United States v. Joseph, 996 F.2d 36, 39 (3d Cir. 1993)). Thus, under Brady, the government must "take the minimal steps necessary to acquire . . . information" of which the prosecution should be aware, even if it lacks knowledge of the material at the time the defendant requests disclosure. United States v. Risha, 445 F.3d 298, 307 (3d Cir. 2006) (quoting Joseph, 996 F.2d at 40). The prosecutor's good faith or bad faith in failing to disclose the information is irrelevant. Arizona v. Youngblood, 488 U.S. 51, 57, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988).

Maynard contends that the prosecutor's failure to produce the January 1 arrestees' identities before trial constitutes government suppression of exculpatory evidence, and, contrary to the holdings of the District Court and the Superior Court, the record in this case shows that he is correct. The January 1 arrests were handled by the same police department that investigated the murder of Adolph, Sr., and both matters were referred for prosecution to the Office of the Attorney General of the Virgin Islands. The prosecutor in Maynard's case knew that police had apprehended the January 1 arrestees near where they discovered the AK-47, but the prosecutor failed to perform even the most rudimentary search for their names. Despite repeated requests by defense counsel, the prosecutor never reviewed the files associated with the January 1 arrests, nor did he inquire whether anyone in his office knew the names of the arrestees. Indeed, he was so little concerned with meeting a clearly relevant disclosure request from the defense that he changed stories without, it seems, any care at all, saying first that the defense had been given the names, then that the prosecution itself was without the names, and finally that the prosecution had the names but that they were never thought to be relevant to Maynard's case. Under these circumstances, we have little difficulty concluding that the prosecutor's neglect effectively suppressed the identities of the January 1 arrestees. See Wilson, 589 F.3d at 659 (stating that Brady requires disclosure of exculpatory "information in the possession of the prosecutor's office, the police, and others acting on behalf of the prosecution").

The government advances two unpersuasive arguments against a holding that the names were suppressed. First, it argues that the arrestees' identities were located in a separate case file of which the prosecutor had no knowledge. That argument has no merit because the arrest files were in the possession of the Attorney General's office, and documentation in Maynard's file referred to the six arrestees by arrest number. The prosecutor therefore knew that the names were in the government's possession and knew further where to locate the names, even if he had not yet gone to the trouble to do so. See United States v. Perdomo, 929 F.2d 967, 970-71 (3d Cir. 1991) (holding that a prosecutor had constructive knowledge of information held by another arm of the government accessible to the prosecutor).

Second, the government argues that there was no suppression because the prosecutor disclosed the arrestees' names during trial, thereby giving Maynard an opportunity to present their identities to the jury and argue that one of them was tied to the weapon. That argument wrongly presumes that the government is free to dictate the purpose to which the withheld information could be put. Maynard claims that he wanted the names not merely to argue an inference but to be able to investigate a more concrete connection between the January 1 arrestees and the murder of Adolph, Sr. The January 1 arrests meant that six people other than Maynard were possibly linked to the murder weapon, and Maynard hoped that, through his own investigation, he might be able to tie one of them to the weapon or to the murder. That is a legitimate purpose which the prosecutor was not free to frustrate by his cavalier refusal to respond to the defense request for the names of the January 1 arrestees. Cf. United States v. Higgs, 713 F.2d 39, 43 (3d Cir. 1983) ("Determining that the requested information falls under Brady, however, does not resolve the more difficult question of when that information must be disclosed to appellees. Because Brady rests on the requirements of due process, our focus must be on when disclosure is necessary to insure appellees a fair trial."). The government must disclose Brady material sufficiently in advance of trial to enable the defendant to use the evidence in a meaningful fashion, and, in this case, the late hour of the government's disclosure prevented Maynard from using the evidence for any investigatory purpose. Cf. United States v. Lee, 573 F.3d 155, 164-65 (3d Cir. 2009) (concluding that the government's failure to disclose exculpatory evidence prior to trial under Rule 16 of the Federal Rules of Criminal Procedure prejudiced the defendant because he "was deprived of any opportunity to prepare meaningfully for trial"). Accordingly, we conclude that the prosecutor suppressed evidence and that Maynard has successfully established the first element of a Brady violation.

2. Favorableness and Materiality

The second and third elements of a Brady violation require the defendant to prove that the suppressed evidence was favorable to his defense and material to his case. Lambert, 387 F.3d at 252. To be favorable to the defendant, the evidence must either exculpate the accused or impeach a witness for the prosecution. Wilson, 589 F.3d at 659. To determine materiality, we evaluate the excluded evidence to assess whether there is a reasonable probability that the outcome would have differed had the jury known of the evidence. Bagley, 473 U.S. at 683, 105 S.Ct. 3375. "[T]he Constitution is not violated every time the government fails or chooses not to disclose evidence that might prove helpful to the defense." Kyles, 514 U.S. at 436-37, 115 S.Ct. 1555. Rather, we must determine whether the nondisclosure is so significant that it "undermines confidence in the outcome of the trial." Id. at 434, 115 S.Ct. 1555 (quoting Bagley, 473 U.S. at 678, 105 S.Ct. 3375).

a. Guiding Principles of Law

We have identified three overriding legal principles that guide our Brady analysis. First, Brady is not a discovery rule, and it is neither designed nor intended to enable the defendant to present the most effective case possible. See Wilson, 589 F.3d at 659 ("The purpose of Brady is not to require the prosecution to disclose all possibly favorable evidence to the defense. . . .") . Instead, Brady establishes a constitutional floor for prosecutorial conduct, requiring the government to provide the defendant, at a minimum, with exculpatory information for the purpose of ensuring that the defendant receives a fair trial. Starusko, 729 F.2d at 262. It therefore focuses on safeguarding the defendant's due process rights and regulates prosecutorial conduct only to the extent necessary to protect that right. Id. (characterizing Brady as a "minimum prosecutorial obligation." (citation omitted)). Thus, non disclosure alone is not sufficient to form the basis of a successful Brady challenge. See United States v. Brown, 595 F.3d 498, 509 (3d Cir. 2010) (stating that courts evaluate the merits of an alleged Brady violation "irrespective of the good faith or bad faith of the prosecution" (quoting Brady, 373 U.S. at 87, 83 S.Ct. 1194)). Even suppression resulting from a prosecutor's bad faith or ineptitude does not provide a basis for relief unless the defendant makes an additional showing that the undisclosed evidence is material, i.e., that there is a reasonable probability it will change the outcome of his trial on remand. See Cone v. Bell, ___ U.S.___, 129 S.Ct. 1769, 1783, 173 L.Ed.2d 701 (2009) ("[E]vidence is `material' . . . when there is a reasonable possibility that, had the evidence been disclosed, the result of the proceeding would have been different."); United States v. Agurs, 427 U.S. 97, 110, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) ("Nor do we believe the constitutional obligation is measured by the moral culpability, or the willfulness, of the prosecutor.").

Second, a successful Brady challenge requires the defendant to show that the suppressed evidence is either itself admissible or would have directly led to evidence that would be admissible at a new trial or sentencing. See Ellsworth v. Warden, 333 F.3d 1, 5 (1st Cir. 2003) ("[W]e think it plain that evidence itself inadmissible could be so promising a lead to strong exculpatory evidence that there could be no justification for withholding it."); Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999) ("Inadmissible evidence may be material if the evidence would have led to admissible evidence."). Successful Brady challenges often seem to rest upon discrete pieces of admissible evidence that the government effectively withheld. See, Pelullo I, 105 F.3d at 122-24 (granting a new trial in a corporate fraud case because a law enforcement officer's notes corroborated the defendant's theory that allegedly fraudulent money transfers had been performed for the legitimate purpose of repaying corporate debt); Perdomo, 929 F.2d at 970-74 (concluding that government had suppressed a witness's criminal history and remanding for further fact finding regarding the materiality of that information). Particularly pertinent here, the Supreme Court has suggested that a defendant may predicate a Brady claim upon prosecutorial suppression that causes the defendant to "abandon lines of independent investigation, defenses, or trial strategies that [he] otherwise would have pursued," Bagley, 473 U.S. at 683, 105 S.Ct. 3375, provided that the defendant shows that he would have discovered admissible evidence which calls the outcome of the trial into question. Id. at 684, 105 S.Ct. 3375.

Third, a defendant's ability to establish a Brady violation by arguing that suppressed evidence would have led to additional exculpatory materials requires more than speculation. See United States v. Aleman, 548 F.3d 1158, 1164 (8th Cir. 2008) (rejecting a Brady claim based on the government's failure to disclose a witness's statement that alluded to other individuals who the defendant could have investigated because the defendant offered nothing more than speculation about what those witnesses would have said); United States v. Ramos, 27 F.3d 65, 71 (3d Cir. 1994) ("We think it unwise to infer the existence of Brady material based upon speculation alone."). The defendant must instead produce some evidence to show that his investigation would have borne fruit. See Agurs, 427 U.S. at 109-10, 96 S.Ct. 2392 ("The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish `materiality' in the constitutional sense."); Ramos, 27 F.3d at 71 (requiring a defendant to raise a "colorable claim" showing the existence of material and exculpatory evidence before granting relief under Brady (quoting United States v. Griffin, 659 F.2d 932, 939 (9th Cir. 1981))).

The Supreme Court's decision in Wood v. Bartholomew, 516 U.S. 1, 116 S.Ct. 7, 133 L.Ed.2d 1 (1995), illustrates the type of speculation that cannot support a right to relief under Brady. In Bartholomew, a habeas case brought under 28 U.S.C. § 2254, the defendant was charged with killing a victim during the course of a robbery. The government administered a polygraph test to a critical prosecution witness in which the examiner asked whether the witness had assisted the defendant in preparing for the robbery. Bartholomew, 516 U.S. at 4, 116 S.Ct. 7. The witness responded that he had not done so, and "the examiner concluded that the responses . . . indicated deception" by the witness. Id. The government withheld the results of the polygraph test. The defendant later sought a writ of habeas corpus on the ground that, had he known of the polygraph results, he likely would have sought to depose the witness prior to trial. Id., at 4-5, 116 S.Ct. 7. The district court denied relief, but the court of appeals reversed because it believed that the defendant "might well have succeeded in obtaining an admission that [the witness] was lying about his participation in the crime," which could have been used to impeach the witness or exculpate the defendant. Id. at 5, 116 S.Ct. 7. The Supreme Court, however, found that no Brady violation had occurred. The Court held that, "[o]ther than expressing a belief that in a deposition [the witness] might have confessed to . . . involvement" in the robbery, the theory of the court of appeals about what the witness might have said was "based on mere speculation." Id. at 6, 116 S.Ct. 7. The defendant had failed to produce any evidence to support the possibility that the witness would have provided exculpatory testimony, id., and it appeared that the challenge was based entirely on information that the defendant hoped to find, not on a showing that such evidence was available and accessible to him.

The polygraph test results were not themselves admissible because state evidentiary laws prohibited their introduction at trial. Bartholomew, 516 U.S. at 5, 116 S.Ct. 7.

Bartholomew thus demonstrates that a defendant may not rest a Brady claim on the mere hope that he will discover exculpatory information. Id. (stating that the court of appeals's "judgment [wa]s based on mere speculation, in violation of the standards we have established" under Brady). Instead, he must make a concrete showing that he has a fair probability of discovering such evidence. See Aleman, 548 F.3d at 1164 (concluding that conjecture about what witnesses might have said cannot support a Brady claim).

We too have rejected conjecture as a basis for a Brady challenge. We have refused relief to a defendant who speculated that preliminary investigation notes destroyed by law enforcement officers might have contained unspecified Brady materials. Ramos, 27 F.3d at 71. We have also found Brady claims to be insufficient when based on the government's failure to disclose evidence that, due to the location and condition of discovery, could only be linked to the case through conjecture, Lambert, 387 F.3d at 264 (concluding that no Brady violation occurred when police were searching for a pair of sneakers discarded in a river but found a partly decayed sneaker on the riverbank because the sneaker appeared to be too old to be connected to the case, and therefore any link to the crime was purely speculative), or when based on unsupported guesswork regarding information that the government might have had in its files, United States v. Am. Radiator Standard Sanitary Corp., 433 F.2d 174, 202 (3d Cir. 1970).

Together, these three guiding principles — (1) that the government's failure to disclose does not by itself support a Brady claim, (2) that the defendant must point to materials that are admissible or that would have led to admissible evidence, and (3) that the defendant may not rest his claim on pure conjecture — reveal that, at its core, Brady requires a showing of prejudice. See Banks v. Dretke, 540 U.S. 668, 691, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004) (describing Brady's materiality element as equivalent to a showing of prejudice). The defendant must identify evidence raising a reasonable probability that, were we to remand for a new trial or sentencing, the new proceeding would have a different outcome than the one that occurred in the first instance.

b. Maynard's Speculation about Exculpatory, Material Evidence

Applying those principles to this appeal, we conclude that Maynard has not moved his Brady challenge beyond the realm of conjecture. Maynard rests heavily upon the prosecutor's misconduct to substantiate his claim to relief, and he notes that the prosecutor's failure to discover and disclose the arrestees' identities reflects a refusal to take seriously the obligations imposed by Brady. Maynard repeatedly requested the arrestees' identities, and the prosecutor represented that the government lacked such information, even though there had been no effort to review the files associated with the January 1 arrests.

To be sure, the manner in which the prosecutor approached his responsibilities in Maynard's case deserves, at a minimum, the most unequivocal rebuke, and both the Superior Court and the Appellate Division appropriately took him to task for his lack of professionalism. Since he appears to be a repeat offender, the Superior Court in particular expressed an understandable inclination to punish him, but that does not mean that a Brady claim is well-founded. Maynard is free to file an ethical grievance against the prosecutor with the Supreme Court of the Virgin Islands or with the Virgin Islands Bar Association. See V.I. S. CT. R. 203(f) (establishing procedures for disciplinary complaints against attorneys); V.I. S. CT. R. 205 (creating the Virgin Islands Bar Association and giving it authority to regulate the practice of law). He may also petition for habeas relief, though we of course make no comment on whether such a petition would have merit. In addition, the circumstances of this case should, we think, prompt the Attorney General of the Virgin Islands to take remedial action to ensure that this prosecutor in particular understands and acts upon the scope of his disclosure obligations, including the obligations that flow from Brady.

The prosecutor's failure to disclose the information prompted the Superior Court to say:

[Y]ou can't walk into court at the last minute and produce information that you should have produced, that the defendant asked specifically for on four different occasions, in front of me, at least, and you get up and say you didn't have it.

Your problem is that you cavalierly deal with these cases as if it doesn't matter. You don't have it or produce it, and that's it. You don't seem like you think that you have to investigate.
Any other officer in your department, whatever they have, you have. And I'm getting tired of you, in particular, of these last minute, producing things.
And this is a situation where the defendant has asked you over and over and over, and you get up and say, "Judge, we gave all we have. That's it."
And then in the middle of the trial you're going to produce a document that has the names of people that this defendant could have investigated, who might have some connection to the very gun that was used . . ., and the Court is just supposed to close its eyes to it and proceed. (App. at 293-94.) Like the Superior Court, the Appellate Division indicated that it did not condone the prosecutor's "lackadaisical and cavalier approach to discovery," ( id. at 40), and that it had "serious doubts that the prosecutor . . . complied with" his discovery obligations. ( Id. at 41.)

Regardless of what ought to be done in disciplining the prosecutor, however, it still remains that Brady is not violated every time the government withholds information from a defendant. United States v. Veksler, 62 F.3d 544, 550 (3d Cir. 1995) ("[N]ot every failure to disclose evidence favorable to the defense requires a reversal of a conviction."). Brady requires vacatur of the conviction only if the withheld evidence undermines confidence in the integrity of the verdict. See Dist. Atty's Office for the Third Judicial Dist. v. Osborne, ___ U.S. ___, 129 S.Ct. 2308, 2335, 174 L.Ed.2d 38 (2009) ("[T]he [government] violates due process when it suppresses `evidence favorable to an accused' that is `material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.'" (quoting Brady, 373 U.S. at 87, 83 S.Ct. 1194)). We must therefore consider whether Maynard suffered prejudice as a result of the prosecutor's neglect. In other words, we must determine whether Maynard has identified exculpatory evidence sufficient to raise a reasonable probability that his trial or sentence would have been different had the evidence been presented in court. Bagley, 473 U.S. at 682, 105 S.Ct. 3375. Our review shows that he has not.

Insofar as the names of the January 1 arrestees were themselves exculpatory, Maynard presented them to the jury and urged jurors to conclude that one of the arrestees was linked to the weapon or to the murder. During closing arguments, Maynard's counsel suggested that the names "show[ed] that somebody else, other than Kenrick Maynard, possessed the firearm that shot Adolph Hyman, . . . Sr." (App. at 546-47.) Thus, Maynard had and took the opportunity to link other individuals to the murder weapon using the identities of the January 1 arrestees.

As to whether the government's suppression of the arrestees' names deprived Maynard of evidence that he could have collected before trial to link one of the arrestees to the AK-47 or to the murder, the decision is less clear, but ultimately we conclude that Maynard has failed to show that the names would have directly led to the discovery of such evidence. He has not shown that he could have located the January 1 arrestees, much less that they possessed information that would have altered the outcome of his trial. The arrests occurred over six months after Adolph, Sr.'s death, and no evidence of record suggests that any of the arrestees ever possessed the murder weapon at any time. Indeed, the arrestees were released from custody because the government could not link them to the gun in any way.

Like the defendant in Wood, Maynard has predicated his Brady arguments not on an evidentiary showing that he could have obtained exculpatory information from the arrestees but on a mere hope that he would have done so. His challenge rests entirely upon the assumption that he could have located the arrestees, that one of them knew about and would have been willing to speak with him about the weapons, and that the conversation would have given him information that shed new light on who used the AK-47 six months earlier, when Adolph, Sr. was killed. We should not make such speculative leaps without some evidentiary footing, and Maynard has given us nothing of the kind.

Maynard had the opportunity to seek out the January 1 arrestees pending the Superior Court's disposition of his Brady motion following trial. However, even though he had their names and time to look for them, he never undertook the investigation that he had so zealously claimed was essential to his defense. If he thought he lacked the amount of time necessary for an investigation, he could have requested a continuance, but he did not do so. In short, he had the chance to move his Brady challenge beyond the realm of conjecture but neglected to do so. See Pelullo II, 399 F.3d at 209 (imposing burden of establishing a Brady challenge upon the defendant).

One final point convinces us that denying relief on the Brady claim pertaining to the January 1 arrestees is appropriate, namely, the weight of evidence against Maynard. See Bartholomew, 516 U.S. at 8, 116 S.Ct. 7 (considering the strength of the government's case when evaluating materiality under Brady). Both Adolph, Jr. and Weeks testified that they were acquainted with Maynard prior to the shooting of Adolph, Sr. Both testified that they saw him firing the weapon that killed Adolph, Sr., and they described in detail their opportunity to witness the murder. They both positively identified Maynard at trial. Neither of them expressed uncertainty about his culpability at any point during pretrial investigation or questioning at trial. Jurors also heard testimony that the six arrestees were apprehended at the time the AK-47 was discovered, and Maynard encouraged them to draw an inference that one of these six individuals was linked to the weapon or was responsible for the murder. Jurors nevertheless found Adolph, Jr. and Weeks's account of the murder to be credible. We will not second guess that finding of credibility. United States v. Ozcelik, 527 F.3d 88, 94 (3d Cir. 2008) ("We must `defer to the jury's assessment of witness credibility* and recognize that `the government's proof need not exclude every possible hypothesis of innocence.'" (quoting United States v. Bala, 236 F.3d 87, 93-94 (2d Cir. 2000))).

Furthermore, Maynard fled the Virgin Islands immediately after the shooting of Adolph, Sr., supposedly to escape the individuals who had attacked him on July 4, 1999, but whom he could not identify. He never indicated why the attack threatened him so severely that he moved 1, 500 miles away, nor has he explained why he changed his identity. He asked jurors to believe that he upended his entire life based on a single incident perpetrated by individuals he did not know and for reasons he did not understand. The jury rejected that explanation and, on this record, we are in no position to disagree. See United States v. Green, 25 F.3d 206, 210 (3d Cir. 1994) ("[E]vidence of a defendant's flight after a crime has been committed is admissible to prove his consciousness of guilt.").

In sum, Maynard's conjecture about what an investigation of the January 1 arrestees might have shown is insufficient to demonstrate that an investigation would have led to evidence that was exculpatory and material to his defense. Accordingly, the Appellate Division was correct to affirm the Superior Court's denial of Maynard's Brady claim with respect to the arrestees' identities.

One might argue that the denial of Maynard's Brady challenge will create an incentive for prosecutors to withhold the names of key witnesses or other individuals who possess evidence pertinent to a case. That concern is, we hope, unfounded. The Supreme Court has noted that "because the significance of an item of evidence can seldom be predicted accurately until the entire record is complete, the prudent prosecutor will resolve doubtful questions in favor of disclosure." Agurs, 427 U.S. at 108, 96 S.Ct. 2392. A sensible prosecutor has no incentive to withhold the names of potential witnesses because, in doing so, the prosecutor creates a risk that the defendant will later establish that those witnesses possessed material and exculpatory information. Although that risk did not materialize in this case, rejecting Maynard's Brady challenge does not mean that another defendant in a similar position would be unable to advance a meritorious Brady challenge.

B. Medical Records of Weeks's Drug Use

Maynard alleges that the government violated Brady by failing to obtain and produce evidence of Weeks's drug use in the possession of the Department of Health. Assuming that Weeks's treatment records qualified as Brady materials, they nevertheless fail to support a claim to relief because Maynard could have discovered them through the exercise of reasonable diligence. Pelullo II, 399 F.3d at 202 ("[T]he government is not obliged under Brady to furnish a defendant with information which he already has or, with any reasonable diligence, he can obtain himself." (quoting Starusko, 729 F.2d at 262)). After the prosecutor allegedly tried and failed in his attempt to obtain those records from the Department of Health, defense counsel subpoenaed them on the first day of trial. The Department promptly brought the records to the courthouse the following day, but it was too late for defense counsel to put them in evidence.

These circumstances, though unfortunate, demonstrate that Maynard could have obtained the records prior to trial. Defense counsel was aware two weeks before trial that a court order would be necessary to acquire the records, but he did not subpoena them until after trial commenced. See United States v. McKenzie, 768 F.2d 602, 608 (5th Cir. 1985) (concluding no Brady violation because the defendant could have subpoenaed a videotape allegedly withheld by the government from the witness who had custody of it); see also Perdomo, 929 F.2d at 973 "( Brady does not oblige the government to provide defendants with evidence that they could obtain from other sources. . . ."). Because Maynard's counsel could have obtained the records prior to trial through the exercise of reasonable diligence, those records cannot serve as the basis for relief under Brady. Accordingly, Maynard is not entitled to a new trial based on the government's failure to obtain and produce records of Weeks's drug treatment.

IV. Conclusion

Though we do not entirely agree with the reasoning provided by the Appellate Division, the Court was correct in its conclusion that neither the suppression of the January 1 arrestees' identities nor the government's failure to obtain and produce Weeks's drug treatment records provides a basis for relief under Brady. Thus, the Court properly affirmed the Superior Court's denial of Maynard's post-trial motion. We will therefore affirm the judgment of the Appellate Division of the District Court.