Beverly Anne Monroe v. Ronald J. Angelone, Director, Virginia Department of Corrections, Virginia Trial Lawyers Association, Amicus Curiae. Beverly Anne Monroe v. Ronald J. Angelone, Director, Virginia Department of Corrections, Virginia Trial Lawyers Association, Amicus Curiae

In March of 1992, wealthy art collector and notorious philanderer Roger de la Burde died from a single gunshot wound to the head. Following a high-profile trial in Powhatan County, Virginia, his longtime girlfriend Beverly Monroe was convicted of his murder. Monroe later discovered a wealth of exculpatory evidence that the prosecution had suppressed, including impeachment material, leads implicating other suspects, official documents labeling Burde's death a suicide, and statements suggesting that Burde may have been suicidal. On the basis of this new information, Monroe claimed that the prosecution had violated her due process rights, pursuant to the principles established by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

After unsuccessful state court proceedings, Monroe petitioned for a writ of habeas corpus in the Eastern District of Virginia. Following discovery in the federal proceedings, the district court granted the writ, concluding that the prosecution had suppressed material, exculpatory evidence. Monroe v. Angelone, No. 3:98CV254, Memorandum Opinion (E.D.Va. Mar. 28, 2002) (the "Habeas Opinion"). The Commonwealth1 has appealed the court's award of habeas corpus relief, and Monroe has cross-appealed, challenging the court's conclusion that she procedurally defaulted certain aspects of her Brady claim.2 Because the Brady evidence3 on which the court relied is sufficient to warrant its award of habeas corpus relief, we affirm without deciding the procedural default issue.

This murder prosecution was closely contested, and the Commonwealth's evidence of premeditation and malice, essential elements of first-degree murder in Virginia, was particularly sparse. In attempting to portray Monroe as a cold-blooded, calculating killer, the Commonwealth relied primarily on the testimony of Zelma Smith, who told the jury that Monroe sought to obtain an untraceable handgun about a year before Burde's death. Significantly, the Commonwealth suppressed several evidentiary items that would have severely damaged the credibility of this crucial witness. The suppression of this Brady evidence undermines our confidence in the verdict, and there is a reasonable probability that, had the prosecution properly disclosed exculpatory material, the jury would not have convicted Monroe of first-degree murder.

In the early morning hours of March 5, 1992, Monroe and Joe Hairfield, Burde's groundskeeper, discovered Burde's body lying on a couch in the main house of his Powhatan County estate. Burde had died from a single gunshot wound to his forehead, the shot having been fired from his own handgun. The Powhatan County Sheriff's Office and Medical Examiner originally treated Burde's death as a suicide, and very little evidence was collected from the scene. The State Police, however, soon began to suspect foul play, and the ensuing investigation focused exclusively on Monroe.

During his lifetime, Burde held himself out as descended from Polish royalty, and he had gained notoriety for his rumored wealth, his art collection, and his promiscuity. He was reputed to be a ruthless businessman who had amassed a substantial fortune through unorthodox business deals. He had worked for a number of years as a chemist at Philip Morris Incorporated ("Philip Morris"), but after the company forced him into retirement, he concentrated on his real estate investments and his collection of African art. As part of his livelihood, Burde ran a horse farm on his sprawling estate, which was known to local residents as "Windsor."

Monroe had been involved in a romantic relationship with Burde for approximately thirteen years before his death, and she had been with him on the evening of March 4, 1992. Although Burde had affairs with other women, Monroe had been his primary girlfriend in the years prior to his death. In 1992, Monroe was fifty-four years old. She held a masters degree in organic chemistry, and she had been employed for more than ten years in the patent department of Philip Morris. Monroe had close relationships with her three children, whom she had raised after her 1981 separation (and subsequent divorce) from Stuart Monroe. In 1992, Beverly Monroe lived with her adult son, Gavin, approximately thirteen miles from Windsor, and her daughters, Shannon and Katie, visited frequently.

At Monroe's trial in the Circuit Court of Powhatan County, the Commonwealth introduced evidence that Burde had affairs with other women, that Monroe stood to gain financially from Burde's death, and that Monroe had made inconsistent statements about whether she was present when Burde committed suicide. Further, the Commonwealth offered the testimony of Smith, a multiple felon, who stated that ten months prior to Burde's death, Monroe, identifying herself as "Ms. Nelson," had offered her $800 for an untraceable handgun. The Commonwealth also sought to establish that Burde was upbeat and happy prior to his death and would not have committed suicide. Finally, the Commonwealth presented forensic evidence suggesting that it was unlikely that Burde had shot himself.

In her defense, Monroe presented two alternate explanations of Burde's death, both of which supported her acquittal. First, she sought to show that Burde had committed suicide. Along these lines, witnesses testified to his precarious mental state, describing him as narcissistic and controlling, cruel and abusive to those around him, prone to obsessive and paranoid behavior, and depressed in the weeks and months prior to his death. The evidence showed that Burde's mother had attempted suicide and that Burde himself had discussed suicide in the past. Furthermore, Monroe contended that Burde had reason to be suicidal. For example, he was in danger of being exposed as a fraud in his art dealings, and he was worried about his health. Second, Monroe attempted to show that Burde had many enemies, any one of whom could have killed him. The list of potential suspects included his jilted girlfriends, their husbands, and Burde's children.

In addition to offering alternate explanations for Burde's death, Monroe sought to convince the jury that she was incapable of committing the murder. She testified in her own defense, maintaining that she had not been present when Burde died and that any of her statements to the contrary had been coerced. According to Monroe, she loved Burde, accepted his imperfections, and would never have killed him. Indeed, Monroe was, by all accounts, a calm, gentle, and kind person, and she had an impeccable reputation as an honest and law-abiding citizen. According to numerous witnesses, she had been distraught in the weeks and months following Burde's death. Monroe also presented the jury with alibi evidence, in the form of a receipt and a neutral eyewitness, placing her in a grocery store miles from Windsor around the time of Burde's death.

On November 2, 1992, after a seven-day trial, the jury convicted Monroe of first-degree murder and use of a firearm in the commission of a felony. On December 22, 1992, she was sentenced to twenty years in prison for the murder conviction and an additional two years for the firearm conviction.4

On direct appeal to the Court of Appeals of Virginia, Monroe primarily contended that her statements to authorities were admitted at trial in violation of her Fifth and Sixth Amendment rights. Among other claims, she maintained that the trial court erred in admitting the testimony of Zelma Smith because the prosecution had violated its obligations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), when it failed to disclose material that would have undermined Smith's credibility.5 On this point, Monroe asserted that the prosecution had withheld evidence that it had agreed not to prosecute Smith on a firearms offense in exchange for her testimony against Monroe (the "Smith gun deal").

On May 2, 1995, the Court of Appeals affirmed Monroe's conviction, concluding, inter alia, that the prosecution's suppression of the Smith gun deal was immaterial. Monroe v. Virginia, 1995 WL 250986, No. 2604-92-2, Memorandum Opinion (Va.Ct. App. May 2, 1995) ("Monroe I"). Six months later, in a summary opinion issued on November 1, 1995, the Supreme Court of Virginia refused to grant Monroe's petition for appeal. Monroe v. Virginia, No. 951346 (Va. Nov. 1, 1995).

On April 7, 1997, after an unsuccessful direct appeals process, Monroe filed a habeas corpus petition in the Supreme Court of Virginia, raising numerous challenges to her conviction. First, she contended that she had received ineffective assistance of counsel. Second, she asserted, once again, that her statements to the authorities had been introduced in violation of Miranda and her Sixth Amendment right to counsel. Finally, she maintained that her conviction had been obtained in violation of her due process rights, because of a tainted investigation, prosecutorial misconduct, and the Commonwealth's violation of Brady by its suppression of exculpatory evidence.

In support of her Brady claim, Monroe pointed to nine separate items of suppressed, exculpatory material: (1) the Smith gun deal; (2) the Commonwealth's agreement to help Smith obtain a reduction of an unrelated sentence (the "Smith sentence deal"); (3) Smith's history as an informant ("Smith's informant history"); (4) the identity of witnesses who had seen a dark Bronco/Blazer vehicle speeding from Windsor around the time of Burde's death (the "Bronco witnesses"); (5) the full results of gunshot residue tests (the "residue tests"); (6) the medical records of Krystyna Drewnowska ("Krystyna"), one of Burde's girlfriends, who was pregnant with his child when he died ("Krystyna's medical records");6 (7) a statement by Windsor groundskeeper Joe Hairfield that he had moved the gun when he found Burde's body ("Hairfield's statement"); (8) a medical examiner's report (the "missing examiner's report"); and (9) the source of a letter written by Monroe and used to pressure her in a pre-trial police interview (the "inculpatory letter source").

On October 29, 1997, Monroe moved in the Supreme Court of Virginia for discovery to search for other exculpatory material that the prosecution may have suppressed. Further, on November 20, 1997, Monroe sought to amend her state habeas corpus petition to include claims based on evidence she had discovered through an independent investigation. In particular, Monroe had obtained evidence that the Commonwealth had suppressed three other items of exculpatory material:

(1) a March 5, 1992, report made by Dr. Brown of the Medical Examiner's office, which indicated that, based on his examination of Burde's body at Windsor, he concluded that Burde's death was a suicide ("Dr. Brown's first report");

(2) a laboratory request made by Dr. Jefferson, the physician in the Medical Examiner's office who conducted Burde's autopsy, labeling Burde's death a suicide ("Dr. Jefferson's notes"); and

(3) evidence that Burde's ex-wife, Dr. Brigitte Burde, had advised the Medical Examiner's office that Burde had been experiencing personal problems and taking Librium, an anti-depressant medication (the "anti-depressant disclosure").

These items came to light through a Freedom of Information Act request to the Powhatan County Medical Examiner after the conclusion of Monroe's trial (the "FOIA request").

In its order of January 29, 1998, the Supreme Court of Virginia dismissed Monroe's habeas corpus petition and refused, without explanation, to authorize either additional discovery or Monroe's proposed amendment. Monroe v. Dir. of the Dep't of Corr., No. 970666 (Va. Jan. 29, 1998) ("Monroe II"). In dismissing the petition, the court ruled that most of Monroe's claims had been defaulted, pursuant to Slayton v. Parrigan, 215 Va. 27, 205 S.E.2d 680 (1974), because they had not been raised at the earliest opportunity. As for the claims Monroe had preserved, the court ruled that Monroe was not entitled to any relief.

On April 27, 1998, following her unsuccessful state proceedings, Monroe sought habeas corpus relief in the Eastern District of Virginia. Her federal petition largely reiterated the claims she had asserted in her petition to the Supreme Court of Virginia, although she no longer relied, at least for the purposes of her Brady claim, either on the Commonwealth's failure to disclose Krystyna's medical records7 or on the inculpatory letter source. She also replaced the missing examiner's report with Dr. Brown's first report. Furthermore, her federal petition included other material obtained through the FOIA request, specifically Dr. Jefferson's notes and the anti-depressant disclosure. In response, the Commonwealth moved to dismiss her petition, asserting that, under the principles of Slayton, Monroe had procedurally defaulted most of her claims.

On April 26, 1999, the district court dismissed certain aspects of Monroe's Brady claim, agreeing with the Commonwealth that they had been defaulted. Monroe v. Angelone, No. 3:98CV254, Memorandum (E.D.Va. Apr. 26, 1999) (the "Default Opinion"). In particular, the court concluded that Monroe had defaulted her right to rely on the following exculpatory material: (1) Dr. Brown's first report; (2) Dr. Jefferson's notes; (3) the anti-depressant disclosure; (4) the residue tests; and (5) Hairfield's statement. Id. at 9-20.8 The court also ruled, however, that Monroe was entitled to rely on other Brady evidence, including: (1) the Smith gun deal; (2) the Smith sentence deal; (3) Smith's informant history; and (4) the Bronco witnesses.9 Id. at 20. In its Default Opinion, the court also granted Monroe's motion for discovery with respect to her remaining claims. Id. at 21-26.

Over the next year, from April of 1999 until July of 2000, Monroe conducted discovery in search of additional Brady material. As part of this effort, she deposed Smith; Deputy Sheriff Gregory Neal of the Powhatan County Sheriff's Office; Special Agent David Riley of the Virginia State Police; Corinna de la Burde Pugh ("Corinna"), Burde's youngest daughter; Deborah Pollock, a secretary in the Sheriff's Office who had observed some part of Riley's interview of Monroe on March 26, 1992; and Patricia Dilettoso Fisher, another secretary who had observed the same interview. These discovery efforts revealed three other categories of suppressed, exculpatory evidence.

First, the prosecution had failed to provide Monroe's defense with some of Riley's notes on Smith ("Riley's notes"). Riley's notes established that the Commonwealth knew of, but withheld, evidence of Smith's history as an informant. The notes also revealed that Smith had made statements inconsistent with her trial testimony ("Smith's inconsistent statements"),10 and that Smith had advised Riley that her former employer, Eric Lundy, had provided her with the handgun she offered to sell to Monroe (the "Lundy information"). Strikingly, Riley did not contact or interview Lundy because, according to Riley, he assumed that Lundy would deny Smith's allegations and contradict her testimony. Lundy's denial, however, would have supported Monroe's defense by impeaching Smith's credibility.11

Second, Monroe found that the prosecution had failed to disclose Deputy Neal's notes regarding certain statements made by prosecution witnesses. These included:

(1) a statement by Barbara Samuels, Burde's secretary, that "the recent past had been hard for Burde due to personal problems" ("Samuels's personal problems statement");

(2) Samuels's statement that Burde's usual napping position was "on his back with his hands on his head" and that he always napped on the sofa opposite from the one on which he was found ("Samuels's napping habits statement");12 and

(3) Corinna's statement that Krystyna was afraid to take a test to determine the sex of her baby because Burde would not want a baby girl ("Corinna's male heir statement").

Deputy Neal had taken each of these statements in the days following Burde's death, and they support the proposition that Burde was killed either by his own hand or by someone other than Monroe.

Finally, Monroe discovered that the Commonwealth had failed to disclose notes taken by two secretaries who watched Riley interview Monroe on March 26, 1992 (the "secretaries' notes"). During the interview, Riley questioned Monroe about the evening of Burde's death, eventually leading her to acknowledge a vague recollection of being present when Burde committed suicide. Riley did not record this interview, but he had two secretaries, Ms. Pollock and Ms. Dilettoso, take notes from an observation room behind a one-way mirror.13 The secretaries' notes corroborate Monroe's testimony that Riley had manipulated her, and they would have been helpful to Monroe's defense in cross-examining prosecution witnesses who testified about the interview.

On June 27, 2000, the district court referred Monroe's petition to a magistrate judge, pursuant to 28 U.S.C. § 636(b), "for all purposes, including the handling of all pretrial motions, and for an evidentiary hearing if necessary." Monroe v. Angelone, No. 3:98CV254, Order (E.D. Va. June 27, 2000). Soon thereafter, Monroe successfully moved to amend her petition to include the new information obtained during discovery. In response, the Commonwealth moved for summary judgment, and Monroe filed a cross-motion for summary judgment and an opposition to the Commonwealth's motion. In December of 2000, the magistrate judge conducted a two-day hearing on Monroe's petition.14 On April 18, 2001, he issued his Report and Recommendation to the district court, recommending that Monroe's petition be denied. Monroe v. Angelone, No. 3:98CV254, Magistrate's Report and Recommendation (E.D. Va. April 18, 2001) (the "Report").

Monroe filed timely objections to the Report, urging the court to reject the magistrate judge's recommendation and to issue a writ. On September 17, 2001, the court conducted a hearing on Monroe's objections to the Report, and it issued its Habeas Opinion on March 28, 2002. In the Habeas Opinion, the court awarded Monroe a writ of habeas corpus because of the prosecution's failure to disclose exculpatory evidence, including: (1) the Smith gun deal; (2) the Smith sentence deal; (3) Smith's informant history; (4) Smith's inconsistent statements; (5) the Lundy information; (6) Samuels's personal problems statement; (7) Samuels's napping habits statement; (8) Corinna's male heir statement; (9) the secretaries' notes; and (10) the Bronco witnesses. Habeas Opinion at 48-62. In assessing the collective effect of the prosecution's suppression of this evidence, as it was required to do by the Supreme Court's decision in Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), the court concluded that the Commonwealth had violated established Brady principles. Habeas Opinion at 60-62.

After granting Monroe a writ of habeas corpus, the court stayed its order pending appeal and released Monroe on bond. The Commonwealth has filed a timely notice of appeal from the Habeas Opinion, and Monroe has cross-appealed. We possess jurisdiction over the court's decision to award habeas corpus relief pursuant to 28 U.S.C. § 1291.

In its appeal, the Commonwealth maintains that the district court failed to give proper deference to the state court adjudications of Monroe's Brady claim, as required by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA").15 Under AEDPA, a federal court must defer to a state court's resolution of a claim that has been "adjudicated on the merits." 28 U.S.C. § 2254(d). Conversely, where a state court has not considered a properly preserved claim on its merits, a federal court must assess the claim de novo.16 Daniels v. Lee, 316 F.3d 477, 487 (4th Cir.2003); see also Cargle v. Mullin, 317 F.3d 1196, 1206 (10th Cir.2003) ("[AEDPA] applies only when there is an antecedent state court decision on the same matter.").

Pursuant to this doctrine, AEDPA's deference requirement does not apply when a claim made on federal habeas review is premised on Brady material that has surfaced for the first time during federal proceedings. Rojem v. Gibson, 245 F.3d 1130, 1140 (10th Cir.2001) (reviewing Brady claim de novo when exculpatory material surfaced for first time in federal habeas proceedings); Williams v. Coyle, 260 F.3d 684, 706 (6th Cir.2001), cert. denied, 536 U.S. 947, 122 S.Ct. 2635, 153 L.Ed.2d 816 (2002) (same); see also Cargle, 317 F.3d at 1206-07 (holding that AEDPA's standard of review does not apply when new issues are considered on federal habeas review); Daniels, 316 F.3d at 487 (suggesting that when "evidence on which [a federal claim] is premised was only discovered [after the conclusion of state court proceedings,] it does not trigger the deference mandate of AEDPA"); Killian v. Poole, 282 F.3d 1204, 1208 (9th Cir.2002) ("AEDPA deference does not apply to [a] claim [when] [e]vidence of the [claim] was adduced only at the hearing before the [federal] magistrate judge.").

Here, certain items of suppressed, exculpatory material first came to light during Monroe's federal habeas proceedings. In particular, Monroe first obtained the following through discovery in federal court: (1) some evidentiary material on the Smith sentence deal (particularly Riley's deposition); (2) some evidentiary material on Smith's informant history (particularly information in Riley's notes); (3) Smith's inconsistent statements; (4) the Lundy information; (5) Samuels's personal problems statement; (6) Samuels's napping habits statement; (7) Corinna's male heir statement; and (8) the secretaries' notes.17 By contrast, the state courts have previously considered: (1) the Smith gun deal; (2) some evidentiary material on the Smith sentence deal; (3) some evidentiary material on Smith's informant history; and (4) the Bronco witnesses. In these circumstances, we are obliged to give deference to decisions of the state courts that the Commonwealth's failure to disclose these last four items of Brady evidence did not constitute a Brady violation.

The prosecution's late disclosure of the other eight items of exculpatory material listed above, however, precluded the state courts from considering those items when they ruled on Monroe's Brady claim. Because no state court was ever presented with these eight items of exculpatory material, we are obliged to make an independent determination of whether they are favorable to Monroe, and whether they were suppressed. Daniels, 316 F.3d at 487; see also Boyette v. Lefevre, 246 F.3d 76, 89 (2d Cir.2001) ("[B]ecause no state court determined whether some documents were Brady materials, we must exercise de novo review of this issue."). In addition, we must determine whether all of the non-defaulted materials — those presented in state court and those presented for the first time in federal court — considered and weighed collectively, made a material difference to the outcome of Monroe's trial. Kyles, 514 U.S. at 436-37, 115 S.Ct. 1555; Cargle, 317 F.3d at 1206-07.

In making this "materiality" determination, the third step in any Brady analysis, we are unable to accord AEDPA deference on an item-by-item basis to the four items of exculpatory material considered in state court, because we are obliged to assess the materiality of exculpatory evidence "collectively, not item by item."18 Kyles, 514 U.S. at 436, 115 S.Ct. 1555; see also Cargle, 317 F.3d at 1206-07 (holding that AEDPA does not apply to cumulative error analysis when no state court has considered all the material considered by federal courts). In these circumstances, we have no way of deferring to an earlier state court adjudication on materiality because no state court considered all of the Brady material presented here. As a result, we must make an independent assessment of whether the suppression of exculpatory evidence — including the evidence previously presented to the state courts — materially affected Monroe's first-degree murder conviction.19

In our consideration of the district court's judgment, we review legal conclusions de novo and findings of fact for clear error. See Quesinberry v. Taylor, 162 F.3d 273, 276 (4th Cir.1998). Although the magistrate judge, rather than the district court, conducted the evidentiary hearing on Monroe's petition, we review the district court's findings, rather than the magistrate judge's recommendations. LoConte v. Dugger, 847 F.2d 745, 750 (11th Cir.1988); see also Wimmer v. Cook, 774 F.2d 68, 73 (4th Cir.1985) ("[W]hile ... the magistrate may conduct the evidentiary hearing in the case, he lacks judicial authority to make on his own a final determination."); cf. United States v. Raddatz, 447 U.S. 667, 683, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980) (holding that district court is ultimate decisionmaker).

The prosecution's failure to disclose evidence favorable to an accused "violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87, 83 S.Ct. 1194. Moreover, the prosecutor's duty encompasses both impeachment material and exculpatory evidence, and it includes material that is "known only to police investigators and not to the prosecutor." Kyles, 514 U.S. at 438, 115 S.Ct. 1555. Along these lines, "the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf." Id. at 437, 115 S.Ct. 1555. Significantly, a Brady violation has three essential elements: (1) the evidence must be favorable to the accused; (2) it must have been suppressed by the government, either willfully or inadvertently; and (3) the suppression must have been material, i.e., it must have prejudiced the defense at trial. Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999).

As explained below, the suppressed evidence on which the district court relied in awarding habeas corpus relief establishes a Brady violation, which renders it unnecessary for us to reach the issue of procedural default raised by Monroe in her cross-appeal. To be clear, we are considering only the following evidence (the "Habeas Evidence") in our assessment of Monroe's Brady claim:

(1) the Smith gun deal;

(2) the Smith sentence deal;

(3) Smith's informant history;

(4) Smith's inconsistent statements;

(5) the Lundy information;

(6) Samuels's personal problems statement;

(7) Samuels's napping habits statements;

(8) Corinna's male heir statement;

(9) the secretaries' notes; and

(10) the Bronco witnesses.

In light of the foregoing, we turn to whether the Habeas Evidence establishes the three essential elements of a Brady violation, as articulated by the Supreme Court in Strickler v. Greene.

First, we agree with the district court that each item of Habeas Evidence was favorable to Monroe. Most, if not all, of the Habeas Evidence could have been used to impeach prosecution witnesses. In particular, the prosecution failed to disclose five separate items of impeachment material on its key witness, Zelma Smith, including: (1) the Smith gun deal; (2) the Smith sentence deal; (3) Smith's informant history; (4) Smith's inconsistent statements; and (5) the Lundy information.20 Similarly, the statements given to Deputy Neal — including Samuels's personal problems statement, Samuels's napping habits statement, and Corinna's male heir statement — could have been used to impeach other prosecution witnesses.21 Along similar lines, the secretaries' notes would have been helpful in cross-examining prosecution witnesses who testified about the March 26, 1992, interview. Finally, the Bronco witnesses — had their identities been disclosed — could have been called to testify that they had observed a suspicious vehicle speeding away from Windsor about the time of Burde's death.22 Thus, each item of Habeas Evidence was favorable to Monroe's defense.

The second element of a Brady violation requires us to determine whether the prosecution suppressed the Habeas Evidence. As the Supreme Court has pointed out, suppressed evidence is "information which had been known to the prosecution but unknown to the defense." United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Initially, the Commonwealth insisted that the identity of the Bronco witnesses was disclosed to Monroe's defense before trial, but it has now dropped this contention, admitting that "[t]he fact of this report was disclosed to the defense in discovery, but the Johnson's [sic] identity apparently was not." Appellant's Br. at 27. In any event, the district court found that the identity of the Bronco witnesses was not disclosed, Habeas Opinion at 49, and its finding on this point is not clearly erroneous.