Brester: No Brady violation in failure to disclose plea agreement loss provisions

In U.S. v. Brester, No. 13-15311 (May 20, 2015), the Court held that because Brester was not prejudiced by the failure to disclose his cooperating co-conspirators’ plea agreement provisions limiting their loss amount for sentencing purposes, this non-disclosure did not violate Brester’s rights under Brady v. Maryland. Turning first to the question of whether it had jurisdiction to review the district court’s denial of Brester’s motion for a new trial, the Court noted that Brester had failed to file a second notice of appeal from the denial of this motion. Although the “better practice” is to perfect a separate appeal from the denial of a motion for a new trial, when the government is not prejudiced – here, it briefed the issue on appeal – the Court has jurisdiction. Next addressing the merits, the Court found that the loss amount limitation of the co-conspirators’ plea agreements would merely have been cumulative impeachment evidence, which does not establish “prejudice” under Brady. The Court noted these co-conspirators' admissions, on cross-examination, of their motivation for their testimony against Brester.