In the
Supreme Court of the Republic of Palau
Appellate Division
ARNOLD BUCK,
Appellant,
v.
REPUBLIC OF PALAU,
Appellee.	

Cite as: 2018 Palau 27
Criminal Appeal No. 17-002
Appeal from Criminal Action Nos. 16-053 & 16-108 (consolidated)

Decided:	December 10, 2018

Counsel for Appellant 	        Danail M. Mizinov
Counsel for Appellee   	        Graham G. Leach
	
BEFORE:	Arthur Ngiraklsong, Chief Justice
JOHN K. RECHUCHER, Associate Justice
R. BARRIE MICHELSEN, Associate Justice
Appeal from the Trial Division, the Honorable Lourdes L. Materne, Associate Justice, presiding.
	OPINION
PER CURIAM:
[¶ 1]	Following a jury trial, Arnold Buck was convicted of trafficking and possessing a controlled substance. Mr. Buck appeals his convictions, asserting that they were obtained in violation of his Due Process rights under the Palau Constitution. For the reasons set forth below, we VACATE Mr. Buck’s convictions in part, AFFIRM his convictions in part, VACATE his sentence, and REMAND this case for proceedings consistent with this opinion. 
	Facts
[¶ 2]	Arnold Buck was arrested and charged with three counts of Trafficking of a Controlled Substance in violation of 34 PNC § 3301(a)(b)(5) and three counts of Possession of a Controlled Substance in violation of 34 PNC § 3302(d)(1). See Tr. 79:9–21. Mr. Buck’s charges are related to three “controlled buys” of methamphetamine occurring on February 5th, March 14th, and August 19th of 2016. A controlled buy is a term used by Belau Drug Enforcement Task Force (“Task Force”) officers to describe the procedure by which a confidential informant (“CI”) purchases an illegal controlled substance from individuals under police investigation using marked bills. See Tr. 113:17–24, 280:17–23, 283:11–15. 
[¶ 3]	The prosecution based its case heavily on the testimony of two Task Force CIs, Mike Teman and Shaft Katosang. Mr. Katosang was the CI used for the February 5th and March 14th controlled buys (Criminal Case No. 16-053). See Tr. 284:8–16, 290:7–20. Mr. Teman was the CI used for the August 19th controlled buy (Criminal Case No. 16-108). Tr. 310:9–12. Both Mr. Katosang and Mr. Teman were given incentives to participate in the controlled buys, Mr. Katosang in the form of reduced criminal charges, Tr. 377:22–378:13, and Mr. Teman in the form of monetary compensation, Tr. 322:26–323:5. Both men testified at Mr. Buck’s trial regarding the controlled buys. While it is unclear what information was provided to the defense regarding Mr. Katosang’s immunity agreement, it is undisputed that the prosecution failed to disclose the payments that Mr. Teman received in exchange for his cooperation. See Appellee’s Br. 7–8. This information was revealed mid-trial during the defense’s cross-examination of Task Force Officer Sebalt. Id. at 8. 
[¶ 4]	At the close of the prosecution’s case-in-chief, the defense moved for a judgment of acquittal for all charges based on several different grounds, including an argument that Mr. Buck was improperly pre-targeted for a controlled buy, Tr. 428:1–14, and that the prosecution failed to disclose the payments made to Mr. Teman, Tr. 433:4–434:17. Defense counsel first argued that Mr. Katosang’s testimony should be excluded and a judgment of acquittal granted for the charges against Mr. Buck relating to his testimony about the February 5th and March 14th controlled buys because Mr. Katosang was promised immunity for setting up a controlled buy specifically targeting Mr. Buck. Tr. 428:4–18. Citing United States case law, defense counsel argued that, because of the strong incentive to fabricate evidence, Mr. Katosang’s testimony was too unreliable and allowing it in violated Mr. Buck’s Due Process rights. Tr. 428:21–429:12; Tr. 442:7–13. Relying on the prosecution’s Due Process obligation to disclose evidence favorable to the defense (“Brady evidence”), defense counsel also requested that Mr. Teman’s testimony about the August 19th controlled buy be excluded from the trial and the charges against Mr. Buck relating to Mr. Teman’s testimony be dismissed via a judgment of acquittal. Tr. 434:12–25. 
[¶ 5]	The Trial Division denied the motions. The Trial Division first noted that there was “no rule saying that if a specific defendant is targeted then evidence to that fact should be excluded,” Tr. 448:13-14, and regardless, there was evidence to support the conclusion that Mr. Buck was not pre-targeted, Tr. 448:22–24. The Trial Division then concluded that the defense had access to Mr. Teman prior to trial and “[t]his information could have been elicited from Mr. Teman[] well before trial from the defense.” Tr. 452:7–8. The Trial Division further noted that excluding Mr. Teman’s testimony was “not a remedy in this case” because “[h]is testimony is vital, if it is excluded, then the whole August 2016 or the charges relating to the August 2016 Controlled Buy would just fall apart.” Tr. 452:15, 24–27. After the closing of the defense’s case, defense counsel renewed its motion for a judgment of acquittal, which the Trial Division also denied. Tr. 484:18–486:2.
[¶ 6]	The jury found Mr. Buck guilty on all six counts, and he was subsequently sentenced to fifty-seven years’ imprisonment. Commitment Order and Sentencing Order 1–3. Mr. Buck timely appealed.
	Standard of Review
[¶ 7]	Whether suppressed evidence is material under Brady is a question of law, which we review de novo. See Rengiil v. Republic of Palau, 20 ROP 141, 143 (2013) (reviewing the failure to disclose exculpatory evidence de novo). We review the denial of a judgment of acquittal under a clearly erroneous standard. Remengesau v. Republic of Palau, 18 ROP 113, 119 (2011).
	Discussion
[¶ 8]	Mr. Buck raises two separate grounds for relief in his appeal: (1) an affirmative defense of entrapment and (2) failure to disclose Brady evidence in violation of the Due Process clause of the Palau Constitution and the Rules of Criminal Procedure. We address each in turn.
I.	Entrapment
[¶ 9]	Mr. Buck argues that his convictions for Trafficking of a Controlled Substance and Possession of a Controlled Substance in Criminal Case No. 16-053 cannot stand on the basis of entrapment. Entrapment is an affirmative defense with two elements: “(1) improper governmental inducement of the crime, and (2) lack of predisposition on the part of the defendant to commit the criminal act.” Republic of Palau v. Lin Man Chuen, 10 ROP 192, 192 (Tr. Div. 2002) (citing United States v. Gamache, 156 F.3d 1, 9 (1st Cir. 1998)). During trial, defense counsel argued that the testimony of Mr. Katosang should be excluded because “[h]e was told specifically that he had to set up a controlled buy against the defendant Mr. Arnold Buck” and such pre-targeting by police violated Mr. Buck’s constitutional rights. Tr. 428:9–10; id. at 442:1–13. On appeal, Mr. Buck attempts to turn this argument into an entrapment defense. However, there is no evidence that defense counsel sought to present an entrapment defense and no such defense was ever presented to the jury. Therefore, this argument is waived on appeal. See Orrukem v. Republic of Palau, 11 ROP 177, 177 (2004) (“Because entrapment is an affirmative defense and was not raised at trial, Orrukem could not raise an entrapment defense on appeal.”). We affirm Mr. Buck’s convictions in Criminal Case No. 16-053.
II.	Brady Evidence
[¶ 10]	Mr. Buck next challenges his convictions for Trafficking of a Controlled Substance and Possession of a Controlled Substance in Criminal Case No. 16-108, asserting the prosecution violated his Due Process rights by failing to disclose favorable impeachment evidence.
[¶ 11]	Enshrined in the Fundamental Rights article of the Palau Constitution is one of the most important guarantees that a government owes to those it governs: “The government shall take no action to deprive any person of life, liberty, or property, without due process of law . . . .” See ROP Const. art. IV, § 6. It is from this guarantee that the Brady doctrine originates. This doctrine requires that the prosecution turn over any material evidence favorable to the defense, either because it is exculpatory or impeaches the credibility of a prosecutor’s witness. See Rengiil, 20 ROP at 143–44 (citing Ngiraked v. Republic of Palau, 5 ROP Intrm. 159, 172 (1996)). Since first recognizing that the Palau Constitution incorporates the Brady disclosure requirements in Ngiraked, this Court has repeatedly reaffirmed this doctrine and codified its requirements in the Court’s Rules of Criminal Procedure. See ROP R. Crim. P. § 16(a)(1)(G) (requiring prosecutorial disclosure of “[a]ny material or information which tends to negate the guilt of the defendant as to the offense charged or would tend to reduce the defendant’s punishment thereafter”); Dulei v. Republic of Palau, 2017 Palau 29, ¶ 10 n.2 (2017) (“[T]he Republic has an affirmative obligation under the Due Process clause of Article IV, § 6 of our Constitution to turn over any exculpatory evidence . . . .”); Rengiil, 20 ROP at 143–44 (analyzing whether the prosecution violated Brady by failing to disclose certain documents); Ngiraked, 5 ROP Intrm. at 172 (“Although we have not before had occasion to consider whether the Brady rule applies to the due process clause of the Palau Constitution, we now conclude that it does.”). 
[¶ 12]	Despite adopting the Brady doctrine over twenty years ago, this Court has had few opportunities to define its contours. In doing so today, we consult some of the seminal Brady cases in United States case law. “There are three components of a true Brady violation: The 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 [prosecution], either willfully or inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281–82 (1999); see also Ngiraked, 5 ROP Intrm. at 172 & n.9 (adopting and defining the Brady doctrine as a rule in which “the suppression of exculpatory [or impeachment] evidence by the prosecution . . . violates the due process clause of the [Palau] Constitution where the evidence is ‘material’ to guilt or punishment”). 
[¶ 13]	The first two elements of a Brady claim have clearly been established here. Evidence that Mr. Teman received monetary compensation in exchange for his assistance to the Task Force is demonstrative of a bias that could call into question the credibility of his testimony. Therefore, it is impeachment evidence that is favorable to the defense. And there is no dispute that the prosecution failed to disclose this evidence to the defense prior to trial. See Appellee’s Br. 8 (“[Mr. Buck] discovered the information [regarding] Mr. Teman’s payment during cross examination of Mr. Sebalt, the third of the Republic’s witnesses.”). Therefore, the evidence was suppressed. The only remaining question is whether Mr. Buck was prejudiced by the suppressed of the impeachment evidence, i.e., whether the evidence was “material.”
[¶ 14]	Prosecutorial suppression of Brady evidence only rises to the level of a constitutional Due Process violation if the evidence is “‘material’ to guilt or punishment.” Rengiil, 20 ROP at 144 (quoting Ngiraked, 5 ROP Intrm. at 172). “Further, 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.” Id. (internal quotation marks omitted). “A reasonable probability is a probability sufficient to undermine confidence in the outcome” of the proceeding. Ngiraked, 5 ROP Intrm. at 172 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)).
[¶ 15]	Here, the importance of Mr. Teman’s testimony cannot be overstated. He was the prosecution’s key witness for the August 19th controlled buy. As the Trial Division noted: 
Mr. Teman’s testimony is crucial because without his testimony then there is no evidence linking to the defendant that—the drugs that were recovered. . . . His testimony is vital, if it is excluded, then the whole August 2016 or the charges relating to the August 2016 Controlled Buy would just fall apart.
Tr. 452:8–11, 452:24–27. We agree. Given the critical nature of Mr. Teman’s testimony, any evidence undermining his credibility could easily mean the difference between a conviction and an acquittal. While there can be no serious dispute that the payments to Mr. Teman were material Brady evidence, Appellee argues that no Brady violation occurred because that “information was presented to the Jury during the course of the trial.” Appellee’s Br. 7. According to Appellee, “[i]f the error had not been discovered until after the completion of trial the result may be different but that is not the case here.” Id. at 8. 
[¶ 16]	It is true that not every delayed disclosure of impeachment or exculpatory evidence constitutes a prejudicial Brady violation. See United States v. Warren, 454 F.3d 752, 760 (7th Cir. 2006) (“Late disclosure does not itself constitute a Brady violation.”). However, neither is Due Process satisfied merely because the evidence was disclosed during trial. See Blake v. Kemp, 758 F.2d 523, 532 n.10 (11th Cir. 1985) (“In some instances disclosure of Brady material during trial may be sufficient. However some Brady material must be disclosed earlier. This is because of the importance of some information to adequate trial preparation.” (alterations omitted)). “[E]xculpatory evidence must be produced by the prosecution in time for effective use at trial.” McMeans v. Brigano, 228 F.3d 674, 684 (6th Cir. 2000) (internal quotation marks omitted). Therefore, we must ask whether there is a reasonable probability that the result of the trial would have been different if the prosecution had disclosed the payments made to Mr. Teman before the third day of a four-day trial. We conclude there is. 
[¶ 17]	Knowing prior to trial that the prosecution’s key witness was “being paid to produce evidence,” see Tr. 223:22–25, opens an entirely new area of investigation into the legitimacy of the investigation and possible defense strategies. And while the defense was able to elicit some impeachment evidence, it remains unclear how much Mr. Teman was paid for this controlled buy, how many other controlled buys he participated in, how many of those controlled buys he received payment in, whether the payment agreement included a requirement that Mr. Teman testify, or dozens of other questions that could bring the credibility of Mr. Teman’s testimony into question. It is impossible to know what information could have been discovered if the prosecution had complied with its Due Process obligations and given the defense more than twenty-four hours to properly investigate such critical evidence. But we are convinced there is a reasonable probability that a good defense attorney could have raised reasonable doubt in at least one juror. 
[¶ 18]	We are troubled by another aspect of Appellee’s argument. In essence, Appellee contends that Mr. Buck would have been better off if he had not discovered the suppressed evidence until after his trial. This is a dangerous argument to make. It asks this Court to sanction the government’s attempted suppression of a criminal defendant’s Due Process rights merely because that defendant was savvy enough to uncover the suppressed evidence mid-trial. This, we refuse to do. See Banks v. Dretke, 540 U.S. 668, 696 (2004) (“A rule thus declaring ‘prosecutor may hide, defendant must seek,’ is not tenable in a system constitutionally bound to accord defendants due process. . . . Prosecutors’ dishonest conduct or unwarranted concealment should attract no judicial approbation.”).  
[¶ 19]	Having found that the prosecution’s suppression of Mr. Teman’s compensation violated Mr. Buck’s constitutional Due Process right to Brady evidence, we turn now to the relief he is entitled. Mr. Buck asks this Court to dismiss the charges against him “in the interest of Justice.” Appellant’s Br. 22. While we are troubled by the Attorney General’s actions, we do not believe such an extreme sanction is warranted in this case. Instead, we vacate Mr. Buck’s convictions in Criminal Case No. 16-108 and remand the case to the Trial Division for a new trial. See Monroe v. Angelone, 323 F.3d 286, 293 n.3 (4th Cir. 2003) (“[A] Brady violation usually entitles a defendant to a new trial.”).   
	Conclusion
[¶ 20]	We VACATE Mr. Buck’s convictions for Trafficking of a Controlled Substance and Possession of a Controlled Substance in Criminal Case No. 16-108, AFFIRM his convictions for Trafficking of a Controlled Substance and Possession of a Controlled Substance in Criminal Case No. 16-053, VACATE his sentence, and REMAND this case for proceedings consistent with this opinion.