United States v. Maher Obagi and Mohamed Salah (9th Cir. July 2020)

The Federal Docket

Fifth Amendment/Brady Disclosures – The government must disclose material impeachment evidence before the close of evidence and a defendant can be prejudiced by the government’s failure to timely produce such evidence.

Maher Obagi and Mohamed Salah worked at a mortgage brokerage “that engaged in widespread fraud.” Obagi and Salah were charged with conspiracy to commit wire fraud and bank fraud.

At trial, the government produced multiple witnesses “who purportedly never had cut a deal to avoid prosecution.” Then, during its closing argument, the government commented on the strength of a witness’s credibility due to their never entering into an agreement. During a break between Obagi’s and Salah’s defense closings, the government notified the court and defense counsel that the witness did in fact have an immunity agreement. The government also disclosed over 4,750 pages of materials that arguably impeached the witness.

The district instructed the jury to wholly disregard the witness’s testimony and allowed the trial to continue. Obagi was convicted of conspiracy to commit wire fraud and bank fraud and was sentenced to seventy-eight months’ imprisonment. Salah was convicted of conspiracy to commit wire fraud and bank fraud and was sentenced to fifty-seven months. Both appealed the district court’s decision not to grant a new trial.

The Court agreed with the defendants, holding that there was “a reasonable likelihood that the undisclosed evidence impeaching [the witness] could have affected the judgment of the verdict.” The Court held that, in this case, the “genie was out of the bottle,” and defense counsel should not be expected “at the last minute to reframe [their] defense to incorporate” new impeachment evidence. The Court noted that the failure to disclose was material because the witness was integral to the government’s case; she directly incriminated Obagi, corroborated other witnesses’ testimonies, and was repeatedly referenced in the government’s closing.

The Court also held that prejudice was “especially likely here” because the jury deliberated for three days and delivered a split verdict on Obagi’s charges, demonstrating how close the case was.

The Court also held that, because the district court’s instruction was given after the close of evidence and the government’s closing argument, there is no presumption that the jury would follow the curative instruction. The Court held that, because the jury was not instructed that the government’s “closing was premised on a false narrative” and because the defense had learned after it presented its case “that the truth was something else,” confidence in the jury’s verdict was undermined.

Judge Bumatay dissented, holding that the district court’s curative instructions were sufficient and that the convictions should be upheld.

Appeal from the Central District of California

Opinion by Owens, joined by Molloy (by designation from D. Mont.). Dissent by Bumatay

Click here to read the opinion.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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