UNITED STATES of America, Plaintiff-Appellant, v. Paul Wayne DERRICK, Defendant-Appellee. Dale L. DuTremble; E. Bart Daniel; Richard Greer, Amici Curiae, and Charleston Post and Courier, Movant; United States of America, Plaintiff-Appellant, v. Jefferson Marion Long, Jr., a/k/a Bud, Defendant-Appellee. Dale L. DuTremble; E. Bart Daniel; Richard Greer; Alva Taylor Brown, Personal Representative of the Estate of Luther Langford Taylor; National Association of Criminal Defense Lawyers, Amici Curiae, and Charleston Post and Courier, Movant; United States of America, Plaintiff-Appellant, v. Larry Blanding, Defendant-Appellee. Dale L. DuTremble; E. Bart Daniel; Richard Greer; Estate of Benjamin J. Gordon, Jr., a/k/a B.J. Gordon; Alva Taylor Brown, Personal Representative of the Estate of Luther Langford Taylor; National Association of Criminal Defense Lawyers, Amici Curiae, and Charleston Post and Courier, Movant, 163 F.3d 799

Vacated and remanded by published opinion. Judge LUTTIG wrote the opinion, in which Judges WIDENER and NIEMEYER joined. Judge WIDENER wrote a separate concurring opinion. OPINION LUTTIG, Circuit Judge: Appellant, the United States of America, appeals from the order of the federal district court for the District of South Carolina, dismissing with prejudice five indictments returned in the aftermath of the so called Operation Lost Trust investigation into political corruption in the South Carolina Statehouse in the early 1990s.

For the reasons that follow, we vacate the opinion of the district court and remand with instructions that the dismissed indictments be reinstated. I. This case arises from an FBI investigation into political corruption in the South Carolina legislature in connection with its consideration in 1990 of the state’s parimutuel betting legislation.

That investigation resulted in the prosecution and conviction by jury of the defendants— Larry Blanding, Paul Wayne Derrick, and Jefferson Marion Long, Jr.— for various offenses, including extortion under color of official right and conspiracy to commit extortion, in violation of the Hobbs Act, 18 U.S.C. § 1951. Defendants Bland-ing’s and Derrick’s convictions (as well as Taylor’s and Gordon’

s) were eventually overturned by this court on appeal on the grounds that the intervening Supreme Court decisions in McCormick v. United States, 500 U.S. 257, 111 S.Ct. 1807, 114 L.Ed.2d 307 (1991), and Evans v. United States, 504 U.S. 255, 112 S.Ct. 1881, 119 L.Ed.2d 57 (1992), rendered defective the jury instructions that were given at their trials. See United States v. Blanding, 1992 WL 138353, 966 F.2d 1444 (4th Cir. No. 91-5871); United States v. Derrick, 1994 WL 34691, 16 F.3d 412 (4th Cir. No. 92-5084).

We affirmed the district court’s award of a new trial to defendant Long based upon the improper playing of inadmissible tape recordings before his jury. United States v. Long, 1994 WL 56993, 19 F.3d 1430 (4th Cir. No. 92-6799). Accordingly, all three cases were remanded to the district court for retrial. Upon remand, defendant Taylor moved for dismissal of his superseding indictment, which had also included defendants Gordon and Blanding, on the grounds of discovery violations and other alleged prosecutorial misconduct.

And in response to these allegations of improper withholding of documents and other wrongdoing, the government decided essentially to “start over on discovery by providing it again.” United States v. Taylor, 956 F.Supp. 622, 626 n. 4 (D.S.C. 1997) (district court order dismissing defendants’ indictments) (quoting 10/18/94 OPR Report at 10). This decision having been made, the government produced to the defendants “all [FBI] 302s that mentioned any co-conspirator named in the new indictment as well as all pre-trial Jencks Act materials.” J.A. at 2688.

This production on November 29, 1993, prompted defendant Gordon also to move for the dismissal of his indictment on the grounds that the government had improperly withheld materials required to be produced under Brady v.Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). On February 22, 1994, the district court granted the government’s motion for continuance in order to allow the Department of Justice’s Office of Professional Responsibility (OPR) to investigate the defendants’ allegations of prosecutorial misconduct.

That investigation, which disclosed no intentional misconduct by the prosecution in these cases, was concluded in October of 1994. Although the Department of Justice found that the prosecution had not engaged in any intentional wrongdoing, the United States Attorney for South Carolina recused his office from further involvement, and attorneys from Public Integrity at Main Justice assumed responsibility for prosecution of the cases.

Thereafter, at an October 20, 1994, status conference, the government agreed to produce to the defendants all FBI 302s and transcripts in its possession relating to the investigation, reserving the right to seek in camera review by the court of any materials the government believed should not be produced. J.A. at 1334, 1341. The district court also ordered the government to produce any existing handwritten interview notes. J.A. at 1348. All of these materials were to be surrendered by December 1,1994, into the evidence room established by the district court. J.A. at 1352-53 (district court discovery order).

Pursuant to its promise at the status conference, the government placed a large number of documents in the evidence room. Additionally, acting upon its reservation of right, the government submitted a number of FBI 302s to the court for in camera inspection and argued that they should not be produced to the defendants. In January and February of 1995, the prosecution learned that the FBI had in its possession tape recordings and FBI 302s relating to the 1988-89 drug investigations of prosecution witness Ron Cobb.

Upon learning of these materials, the prosecution obtained these documents and turned them over to the defendants. Following the above-described productions, the defendants proposed to the court at its April 19, 1995, hearing on pending discovery motions, that the government take every scrap of paper that they have, every internal memorandum, every piece of correspondence, every doodle pad, every videotape, every transcript, every audio tape, everything, put it in the room.

J.A. at 1364-65. (The same day, defendant Derrick filed a motion to dismiss his indictment.) And the following day, over the government’s objections that it had already produced far more documents than required by Brady and federal rules, the district court issued an order “[t]o avoid any further confusion as to what material should and should not be turned over by the government to the ... defendants.” J.A. at 1418, 1419.

That order required the government to produce for in camera inspection by May 8,1995, “all documents and/or materials in [its] possession ... dealing with these cases and not presently available to the defendants in the ‘evidence room’.” J.A. at 1420. In compliance with the court’s order, the government produced, according to the district court, seven file boxes from the Department of Justice, four file boxes from the FBI, and one file box from the Office of Professional Responsibility. See J.A. at 1422.

In a July 25,1995, discovery order entered following its in camera review of the materials produced pursuant to its earlier orders, the district court concluded that the government’s argument that the drug-related audiotapes produced in March of 1995 were not relevant or discoverable under Brady was “ludicrous” because “the drug investigation was hand-in-glove with the corruption investigation known as Lost Trust.” J.A. at 1427.

Arguments such as the one made by the government, the district court said, “cause the court to look very closely at what was withheld by the government that may have jeopardized the rights of these defendants.” J.A. at 1427.

The court also concluded that documents relating to corruption in connection with the capital gains legislation (as opposed to the parimutuel betting legislation that was the subject of the Lost Trust sting operation) were relevant to the defendants’ defense because “one of the key figures in the Lost Trust investigation pled to a RICO violation, one of the predicate offenses of which was the taking of a bribe from the government’s cooperating subject and key Lost Trust witness, Ron Cobb, in relation to the capital gains tax bill.” J.A. at 1428.

As to the documents submitted by the government for in camera inspection, the district court concluded they were in the main, internal administrative documents constituting privileged work products, or are documents that are part of the public record in these cases, or are copies of documents known by this court to have been previously furnished to defendants. The court has found few additional materials therein to which it believes these defendants are entitled under either Brady or ivithin the meaning of the “open file policy” in effect in this district. J.A. at 1430 (emphasis added).

The court ordered the government to produce but ten specific documents in addition to OPR interview notes. J.A. at 1440. The district court subsequently amended its July 25 discovery order a number of times, including once on September 7, 1995. In its September 7 amended order, the court ordered “that should the government come into possession of any evidence which might impact on the alleged capital gains cover-up, such information and/or materials shall be immediately submitted to this court for in camera review.”J.A. at 1457.

In response to this amended order, the government inquired, J.A. at 1542, and was informed by the FBI that Special Agent Denton had located, “on the 14th floor of the Strom Thurmond Federal Building in a

section of files known as closed files,” J.A. at 1540, an investigative file for the capital gains matter. The government notified the court that it had found this file, placed some of the documents in the evidence room, and, on October 4, 1995, submitted other documents for in camera review by the court. In an order dated October 6, 1995, the district court indicated that the submitted documents “should have been furnished long ago” and, acknowledging that it had “made only a cursory in camera review of the documents,” ordered them produced to the defendants. J.A. at 1460.

On October 18-20,1995, the court conducted an evidentiary hearing on the defendants’ claims of prosecutorial misconduct. During this hearing, which related primarily to the capital gains investigation, Special Agent Denton, after testifying that the FBI maintained “cooperating witness” files, was asked to search his files again for any files relating to Ron Cobb. In conducting this review, Denton found an FBI 302 on Robert Kohn, which was generated after the defendants’ trials and which he produced to the defendants.

Rejecting the defendants’ suggestion that this document had been intentionally withheld, the district court stated: [O]ut of the thousands and thousands of documents that’s passed through this court, I’m not surprised that there’s one that got overlooked, or lost, or whatever it is____ Now, I had not seen that last 302 that was found, and I don’t know if it contains anything that would warrant anybody trying to intentionally hide it. I have already heard the agent say that he didn’t intentionally do it. He doesn’t know how it got misplaced, but he found it, and he gave it up.

I guess he would have been better off if he had just acted like he didn’t find it, but I think he’s trying to comply with the court’s orders, and there have been several of these things that have come up after a more thorough investigation. J.A. at 1929. At the conclusion of the hearing, the district court said that it wanted to re-review the boxes of documents that it had already reviewed in camera and had said in its July 25, 1995 order need not be produced.

On February 6, 1996, the court ordered that all of these documents be produced to the defendants, reasoning that “little, if anything, contained therein can still be classified as ‘sensitive’,” “a wider latitude must be given with regard to materials to be furnished for the purposes of the defendants’ pursuit of their motions to dismiss for prosecutorial misconduct than might be given for trial preparation,” and that “no prejudice will inure to the government should this court order all of these documents furnished to the defendants.” J.A. at 1946-47.

On October 3, 1996, the district court reconvened the hearing on defendants’ motions to dismiss their indictments, and thereafter received additional briefing in support of and in opposition to the motions to dismiss. And, on February 3, 1997, the district court entered its order dismissing the defendants’ indictments with prejudice pursuant to its supervisory power.

Rejecting the government’s contention that the dismissal of the indictments would be unauthorized absent a specific finding that the alleged prosecutorial misconduct prejudiced the defendants, the district court stated: The court is convinced that the totality of the government’s actions in these matters rises to the level of egregious prosecutorial misconduct, and that this is a sufficient finding on which the court can exercise its supervisory power. The government would argue that in using its supervisory power the court must find pattern and prejudice, and that the defendants have proven neither.

The court agrees that the circuits are in disarray on this subject, but believes there is sufficient precedent to dismiss the subject indictments without addressing these issues. 956 F.Supp. at 623; see also id. (district court concluding that “it has the discretion under the doctrine of the court’s supervisory power to dismiss should it find the government’s actions so outrageous as to offend the sensibilities of the court”). From the district court’s order dismissing the defendants’ indictments pursuant to its supervisory power, the United States appealed. II.

As the United States vigorously asserts, the district court’s dismissal of the defendants’ indictments without a finding of prejudice is directly contrary not only to the precedent of this court, but also to clear and well-established Supreme Court precedent. As the Supreme Court held in United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983), a court’s “supervisory powers to discipline the prosecutors of its jurisdiction” may not be invoked to reverse a defendant’s conviction for prosecutorial misconduct where the alleged misconduct was harmless. Id. at 505, 103 S.Ct. 1974.

In Hasting, the Seventh Circuit had, “notwithstanding the harmless nature of the error,” id. at 504, 103 S.Ct. 1974, reversed the defendants’ convictions because the prosecutor had commented on the defendants’ failure to testify in violation of Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106(1965). The Court of Appeals had, through its reversal of the convictions, sought “to discipline the prosecutor — and warn other prosecutors — for what it perceived to be continuing violations of Griffin ” within the circuit. Hasting, 461 U.S. at 504, 103 S.Ct. 1974.

The Supreme Court, however, reversed, holding that a court’s supervisory powers may not be invoked to evade the harmless error rule for constitutional violations because “the interests preserved by the doctrine of harmless error”' — including the interest of the victims in seeing the defendants brought to justice and the public’s interest in the “prompt administration of justice” — “cannot be so lightly and casually ignored in order to chastise what the court viewed as prosecutorial overreaching.” Hasting, 461 U.S. at 507, 509, 505, 103 S.Ct. 1974.

The Court reasoned that invocation of the “[s]u-pervisory power to reverse a conviction is not needed as a remedy when the error to which it is addressed is harmless since by definition, the conviction would have been obtained notwithstanding the asserted error.” Id. at 506, 103 S.Ct. 1974. The Court also noted that concern for “the integrity of the process carries less weight” when the error is harmless because there is “no ‘reasonable possibility’ that [it] contributed to the conviction.” Id. (quoting Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 11 L.Ed.2d 171(1963)).

Finally, the Court explained, “deterrence is an inappropriate basis for reversal where, as here, [the constitutional violation is at best ‘attenuated’] and where means more narrowly tailored to deter objectionable prosecutorial conduct are available.” Id. (footnotes omitted).

It would seem to follow, a fortiori, from the Court’s holding in Hasting that a court may not, without finding prejudice to the defendant, exercise its supervisory power to reverse a defendant’s conviction and require a retrial ba*sed upon prosecutorial misconduct, that a court may not dismiss an indictment altogether on this ground without also finding prejudice. The dismissal of an indictment altogether clearly thwarts the public’s interest in the enforcement of its criminal laws in an even more profound and lasting way than the requirement of a retrial. And, indeed, in Bank of Nova Scotia v.

United States, 487 U.S. 250, 108 S.Ct. 2369, 101 L.Ed.2d 228 (1988), the Court reaffirmed its analysis in Hasting and squarely held that a court has “no authority to dismiss the indictment on the basis of prosecutorial misconduct absent a finding that petitioners were prejudiced by such misconduct.” Id . at 263, 108 S.Ct. 2369. Defendants apparently contend that the Court’s holding in NovaScotia applies only to prosecutorial misconduct that occurs at the grand jury stage. See Appellee’s Br. at 93.

However, although the misconduct at issue in Nova Scotia did occur before the grand jury, see id. at 254, 108 S.Ct. 2369 (“[A]s a general matter, a district court may not dismiss an indictment for [prosecutorial misconduct] in grand jury proceedings unless such errors prejudiced the defendants.”), both the Court’s analysis and the text of its opinion confirm that Nova Scotia’s holding applies equally to prosecutorial misconduct that occurs at the pretrial and trial stages of a prosecution. Specifically, the Court reasoned that all federal courts are bound by Federal Rule of Criminal Procedure 52(

a) to conduct the harmless-error inquiry and that a “court may not invoke supervisory power to circumvent” that inquiry. Id. at 254-55, 108 S.Ct. 2369. As the Court explained, “[t]he balance struck by [Rule 52(a)] between societal costs and the rights of the accused may not casually be overlooked ‘because a court has elected to analyze the question under the supervisory power.’ ” Id. at 255, 108 S.Ct. 2369 (quoting United States v. Payner, 447 U.S. 727, 736, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980)).

Thus, the Court held broadly that “a district court exceeds its powers in dismissing an indictment for prosecutorial misconduct not prejudicial to the defendant,” Nova Scotia, 487 U.S. at 255, 108 S.Ct. 2369. Other Supreme Court cases likewise confirm that a court’s supervisory power cannot be exercised to dismiss indictments for government misconduct absent a showing of prejudice to the defendants. See, e.g., United States v.

Morrison, 449 U.S. 361, 365-67, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981) (holding that dismissal of an indictment was an inappropriate remedy for an alleged Sixth Amendment violation that did not prejudice the defendant, even though the conduct of the government agents was “egregious”); id. at 365, 101 S.Ct. 665 (“[A]bsent demonstrable prejudice or substantial threat thereof, dismissal of the indictment is plainly inappropriate, even though the violation may have been deliberate.” (footnote omitted)); cf. United States v.

Payner, 447 U.S. 727, 733, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980) (holding that district court cannot invoke its supervisory power to circumvent the Fourth Amendment standing rules by excluding evidence seized illegally and in bad faith by the government in violation of a third party’s — but not the defendant’s — constitutional rights). We, too, have consistently recognized that an indictment may not be dismissed for pros-ecutorial misconduct absent a showing that the misconduct prejudiced the defendant. See, e.g., United States v.

McDonald, 61 F.3d 248, 253 (4th Cir.1995) (holding that indictment should not be dismissed for alleged prosecutorial misconduct before the grand jury that did not prejudice the defendant because “[t]he United States Supreme Court has recognized ... that an indictment maybe quashed on the basis of prosecutorial misconduct, but only where the government’s misdeeds ‘substantially influenced the grand jury’s decision to indict, or if there is grave doubt that the decision to indict was free from the substantial influence of such violations’ ” (quoting Nova Scotia, 487 U.S. at 256, 108 S.Ct. 2369) (internal quotation marks omitted)); United States v.

Lee, 906 F.2d 117, 120 (4th Cir.1990) (“[T]he district court erred in dismissing the indictment [based on the prosecution’s failure to produce a defense witness, who was allegedly ‘within government control,’] because, as the Supreme Court has explained, ‘absent demonstrable prejudice, or substantial threat thereof, dismissal of the indictment is plainly inappropriate, even though the violation may have been deliberate.’ ” (quoting Morrison, 449 U.S. at 365, 101 S.Ct. 665; citing Nova Scotia, 487 U.S. at 254, 108 S.Ct.. 2369)); United States v.

Hastings, 126 F.3d 310, 317 (1997) (holding that, although the government’s improper refusal to comply with a discovery order warranted sanctions, dismissal of the indictment was “an extreme and inappropriate sanction” where the only prejudice to defendant was “inconvenience and slight expense of delays”). And virtually every other circuit to consider the issue post-Hasting and Nova Scotia has also held that an indictment may not be dismissed based on prosecutorial misconduct, absent a showing of prejudice to the defendant. See, e.g., United States v.

Van Engel, 15 F.3d 623, 631-32 (7th Cir.1993) (“A federal judge is not authorized to punish the misconduct of a prosecutor by letting the defendant walk, unless the misconduct not only violated the defendant’s rights but also prejudiced his defense, and neither condition is satisfied here.”); United States v.

Santana, 6 F.3d 1, 11 (1st Cir.1993) (“[T]aken together, Payner, Hasting, and Bank of Nova Scotia form a trilogy admonishing federal courts to refrain from using the supervisory power to conform executive conduct to judicially preferred norms by dismissing charges, absent cognizable prejudice to a particular defendant.”); United States v.

Isgro, 974 F.2d 1091, 1097 (9th Cir.1992) (“In its recent jurisprudence ... the Supreme Court has moved ... toward a rule that a court should not use its supervisory powers to mete out punishment absent prejudice to a defendant.”); id. (“Hasting thus unequivocally rejects the idea that a court may sanction the government for its misconduct without considering first the actual prejudice suffered by the defendant.”). The district court ignored entirely this impressive body of established Supreme Court and appellate court caselaw, failing even to cite to a single one of the cases discussed above.

Instead, the district court relied on a number of district court cases — all of which predated Hasting or Nova Scotia or both, and most of which are easily distinguishable from the present case in any event. See 956 F.Supp. at 657-59, citing to United States v. Omni Intern. Corp., 634 F.Supp. 1414 (D.Md.1986) (dismissing indictment without prejudice); United States v.

Fischbach & Moore, Inc., 576 F.Supp. 1384, 1396 (W.D.Pa.1983) (denying defendant’s motion for release of grand jury transcripts because there was no evidence that the government abused the grand jury process and “no indication of actual prejudice to defendant”); United States v. Lawson, 502 F.Supp. 158, 172 (D.Md.1980) (dismissing indictment without prejudice); United States v. DeMarco, 407 F.Supp. 107 (C.D.Cal.1975); United States v. Banks, 383 F.Supp. 389 (D.S.D.1974). Additionally, the district court relied on three circuit court cases.

Two of these predated Nova Scotia, see 956 F.Supp. at 658, citing United States v. Serubo, 604 F.2d 807 (3d Cir.1979), and United States v. Hogan, 712 F.2d 757 (2d Cir.1983), and the other failed even to cite Nova Scotia or Hasting, see United States v. Kojayan, 8 F.3d 1315 (9th Cir.1993). Obviously, none of the cases cited by the district court can overcome the force of the controlling Supreme Court authority requiring the district court to find prejudice to the defendants before dismissing indictments based on prosecutorial misconduct.

It is hardly surprising, however, that even in the face of these precedents, the district court declined to make any findings that the defendants were, in fact, prejudiced. As the district court itself noted, the bulk of the misconduct it identified related to discovery violations, and the defendants now have all of the discovery materials to which they could possibly be entitled — and considerably more — available to them for use at their retrials. Thus, any prejudice that arguably existed as a consequence of discovery violations is fully remedied by this court’s orders of new trials. See United States v.

Borokinni, 748 F.2d 236, 237 (4th Cir.1984) (rejecting defendant’s claim that his indictment should have been dismissed because the government failed to produce exculpatory material at his first trial because, even “assuming [defendant] was entitled to the materials at his first trial, his remedy for the government’s failure to furnish them was a new trial, not an acquittal”). Similarly, any prejudice to defendants at them original trials that might have resulted from the other alleged misconduct of the government would also be fully cured by retrial.

Defendants contend, nonetheless, that the district court’s dismissal of the indictments was proper because, although the district court found it unnecessary to address whether there was a “pattern” of prosecuto-rial misconduct, see 956 F.Supp. at 623, it in fact found a pattern of misconduct, cf. id. at 657 (finding that the government’s discovery errors “amounted to a pattern of conduct”), and such a pattern is sufficient alone to justify dismissal of the indictments even without a finding of prejudice to the specific defendants before the court.

For this contention, the defendants presumably rely upon the Court’s statement in Nova Scotia that it was not faced with a history of prosecutorial misconduct, spanning several cases, that is so systematic and pervasive as to raise a substantial and serious question about the fundamental fairness of the process which resulted in the indictment. 487 U.S. at 259, 108 S.Ct. 2369; see also Morrison, 449 U.S. at 365 n. 2, 101 S.Ct. 665 (“[W]e note that the record before us does not reveal a pattern of recurring violations by investigative officers that might warrant the imposition of a more extreme remedy in order to deter future lawlessness.”); Santana, 6 F.3d at 11 (noting that the Court may have left open the possibility that the requirement of prejudice is qualified if the misconduct “is plainly improper, indisputably outrageous, and not redressable through the utilization of less drastic disciplinary tools”).

This language may suggest that, despite the Court’s broad language and reasoning in Hasting and Nova Scotia, the Court has not entirely foreclosed the possibility that a pattern of prosecutorial misconduct could be so entrenched and pervasive that it would justify dismissal of indictments without a finding of prejudice to defendants.

Even if such an exception to the requirement of prejudice exists, however, we doubt that the Court would apply it where, as here, alternative sanctions — including publicly chastising the attorneys and recommending them for disciplinary proceedings — were available to the court and were not employed prior to dismissal of the indictments. Cf. Hasting, 461 U.S. at. 506 n. 5, 103 S.Ct. 1974 (noting that the court should select “more narrowly tailored” means to deter objectionable prosecu-torial misconduct).

However, because the district court’s findings can be read to suggest a pattern of serious prosecutorial misconduct that spans at least these several related cases, we have, at the urging of the United States and of the defendants, undertaken a painstaking review of those findings. And, as we explain more fully below, the record does not even support the district court’s individual “findings” of prosecutorial misconduct, much less that there has been an established pattern of prosecutorial misconduct in these cases that would justify the extraordinary sanction of the dismissal of the defendants’ indictments. III.

A careful parsing of the district court’s lengthy opinion reveals that the district court relied for its scores of conclusions as to wrongful withholding of material exculpatory information and other prosecutorial misconduct largely upon only the defense claims of intentional wrongdoing, rather than upon an independént analysis of the record evidence. That is, the district court often merely recites that the defendants contended that certain materials should have been produced, without itself .drawing conclusions as to whether, as a matter of law, the production was required.

For example, the district court does not even purport to determine whether any of the assertedly withheld information was material to the defense, cumulative of information already provided, or readily available to the defendants — all of which are necessary inquiries under Brady and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

In fact, the district court only infrequently makes factual “findings” at all; its opinion rests mostly on implication and innuendo, and much of this is as to matters either extraneous to the proceedings pending before the court or beyond the purview of the federal courts in general. And, when the court does make such findings — none of which are based upon credibility assessments — they are, almost without exception, wholly conclusory: The court either does not explain the basis for the findings or offers what can best be characterized as only a superficial and incomplete analysis of the record evidence.

Indeed, in a number of instances, as we explain, the district court simply erred in its assertion that material was not produced and, in still others, contradicted its own findings and assessments earlier in the proceedings as to whether production was required. The same shortcomings appear in those portions of the district court’s opinion in which it charges the government with misconduct other than the wrongful disclosure of information.

As with the document disclosure portions of its opinion, the district court often did not even make factual “findings” as that term is conventionally understood, employing mere inference and innuendo instead. When the court did make findings, almost never are they adequately supported. And, oftentimes, the district court itself, earlier in the litigation, had specifically rejected the claims of prosecutorial wrongdoing that it ultimately recited as a basis for its decision to dismiss defendants’ indictments.

No doubt many of these errors may be ascribed to the simple fact that the district court became overwhelmed by the sheer volume of documents (and other evidence) in this dispute and by the countless individual claims of entitlement that had to be adjudicated in the course of these decade-long proceedings. Even the government and the defendants themselves were overwhelmed by the magnitude of the litigation.

That the district court may have become overwhelmed by this protracted litigation, however, did not relieve that court of the ultimate obligation to fully support its conclusions with evidence from the record before it. That obligation is always incumbent upon the court and is heaviest where, as here, the court charges a party litigant with intentional wrongdoing. Upon careful review of the district court’s opinion, and of the individual charges of misconduct recited therein, we are convinced that this obligation simply was not properly discharged by the district court. A.

The district court ultimately concluded that “much of the government’s misconduct actually stem[med] from its failure to disclose evidence to the defendants.” 956 F.Supp. at 659. Said the court: The withholding of such a voluminous array of discovery which the government had to know was exculpatory and relevant to the defenses of these defendants is unprecedented before this court. The court finds that these violations are too numerous and too specific to certain issues to be considered simply unintentional or the result of neglect.

Id. at 658-59; see also id. at 657 (rejecting the Office of Professional Responsibility’s finding that “incremental mistakes and misjudgments” by the FBI and prosecutors, and not “intentional and wrongful decisions to conceal,” caused the discovery failures). 1.

Underlying much of the district court’s reasoning that the government had wrongfully withheld material exculpatory information was the court’s apparent belief that the case was tried under a so-called “open file policy,” pursuant to which the government agreed to turn over essentially all of its documents to the defendants in return for the comfort of knowing that neither Brady nor Giglio would be relevant throughout the protracted proceedings.

Thus, the district court began its entire opinion detailing what it perceived to be the “egregious prosecutorial misconduct” as follows: From the outset, these cases were to be tried under what is referred to in this district as an “open file policy.” During its tenure on the bench, this court has conducted numerous criminal trials under this policy and never before has its

interpretation been so challenged as in the government’s present arguments. As a lawyer and a judge, this court’s experience has been that “open file” meant that the government’s entire discovery file would be made available to the defendants for their examination.... It has long been established that when an “open file” policy is declared, the dictates of Brady and Giglio as well as Bills of Particular, become extraneous; all discovery material, except as limited to privileged work product, is made available to the defendants.

This would have come as no surprise to USA Daniel or his assistants, most of whom had prosecuted cases before this court on numerous occasions. [Mjotions to dismiss for prosecutorial misconduct had been filed by one or another of these defendants during the preparation and pendency of their originál trials in 1990 and 1991. One of the primary grounds on which those motions and the more recent motions are based is the wilful withholding of Brady and other exculpatory material. 956 F.Supp. at 632.

Notwithstanding these statements in the district court’s order, it is evident from the record that the government never agreed to conduct these prosecutions under an' “open file policy” in the sense that the district court suggested in its order of dismissal. Not only did the defendants each file numerous discovery requests under Brady, and motions for bills of particular, but the district court closely supervised the discovery, meticulously and painstakingly hearing, considering, and adjudicating each individual dispute.

Indeed, as the government notes, the defendants themselves “essentially abandon! ] the district court’s theory about the ‘open file’ policy.” Reply Br. of United States at 16; see also Reply Br. of Prosecutors Amici at 4; Br. of Appellees at 20 (“Whether or not there was an ‘open file policy,’ the government had clear obligations to comply with Brady v. Maryland,Rule 16, Federal Rules of Criminal Procedure and 18 U.S.C. § 3500 (the Jeneks Act).”).

Both the prosecution and the defense proceeded on the understanding throughout the pretrial and trial proceedings that the government had not opened its files in the manner suggested by the district court. The prosecution made clear early on, in September of 1990, that it only intended to provide those materials required by rule and statute: The Defendant’s “motion for Bill of Particulars” is tantamount to a general discovery request and the majority of the matters inquired about are not properly requested by way of a bill of particulars.

However, the United States does recognize its obligations to provide the Defendant with certain information pursuant to Rule 16 of the Federal Rules of Evidence and 18 U.S.C. § 3500, and the United States intends to conduct discovery in this case in an “open file” manner to the extent that all matters discoverable pursuant to Rule 16 [of the Federal Rules of Criminal Procedure] and 18 U.S.C. § 3500 will be provided to the Defendant prior to trial.

JA. at 317 (United States Response to Taylor’s Motion for Bill of Particulars); see also J.A. at 415-17 (reading same into record at court’s request at October 1990 hearing). At the Blanding hearing on November 19, 1990, the government again repeated its position that it was not proceeding generally under an open file policy: COURT: Do you have an open file policy here? [PROSECUTION]: Well, your honor, I’m always hesitant to say that, in view of the discovery motions that I see coming forward.

Everything that they are entitled to discover under Rule 16, everything under 18 U.S.C. § 3500, and anything the government intends to use at trial, I have produced for them. J.A. at 531-32. And, as late as April 1991, during the Derrick trial, the government continued to assert that it was conducting discovery in the case in an open file manner only “to the extent that all matters discoverable under Rule 16 and Title 18, United States Code,

Section 3500 will be provided to the defendant,” J.A. at 887 (United States Response to Defendant’s Motion for Discovery and Inspection), withholding documents which it believed were not producible under either the rule or the statute, id. at 888-94 (United States Response to Defendant’s Supplemental Motion for Discovery and Inspection). The defense, through defendant Taylor’s counsel, likewise stated repeatedly that it did not believe that the government had opened its files in the manner believed by the district court.

During the court’s October 19, 1990, hearing, in response to the court’s observation that the defense could not have both an open file policy and a bill of particulars, Taylor’s counsel, Joel Collins, stated: I think I understand what you are saying by that, Your Honor. Let me just say I have never believed that we were operating under an open file policy. J.A. at 420; see also id. at 419 (Taylor’s counsel stating his understanding that the case was being tried under bills of particular). And, again in October of 1994, Taylor’s counsel repeated his view that there was no open file policy: MR.

COLLINS: I have never operated on the assumption that there was an open file policy after some time in October of 1990 — ■ THE COURT: But you talked like you think it’s one. MR. COLLINS: We think there ought to be one now, Your Honor. J.A. at 1321. Finally, it is clear from the district court’s own statements and actions that — even if it mistakenly believed such initially — not even the court believed throughout the proceedings that the government had an open file policy, or, at least an open file policy of the kind suggested in its 1997 order.

As early as 1990, after extended discussion of the issue on the record with counsel, the district court concluded that, although it had been confused to that date, the parties in fact had not agreed to an open file policy: THE COURT: Skip on down there to where you get to the part you are telling me that you all are having an open door like policy and that you are not responding to his bill of particulars.

What I guess I am trying to say if they have been laboring certainly we haven’t in 100 percent kept up — we have been kind of treating it like it was open file policy when he keeps saying he didn’t get this and that, and I have been making you all give it to him. With a bill of particulars we don’t get involved in any of that. MR. DANIEL (reading from prior submission by government): ... “[T]he United States does recognize its obligations to provide the defendant with certain information pursuant to Rule 16 of the Federal Rules of Evidence and 18 U.S.C.

Section 3500. And the United States intends to conduct discovery in this case in an ‘open file’ manner to the extent that all matters discoverable pursuant to Rules 16 and 18 U.S.C. § 3500 will be provided to the defendant prior to trial.” THE COURT: I guess what I am trying to get to, Mr. Collins, if we are operating under a bill of particulars case, we are doing things one way. I thought we were operating under an open file case. Once you get the responses to that bill of particulars, then you are stuck, he is stuck, everybody is stuck. That is what the case is all about.

I am becoming more and more in favor of bill of particulars myself. I know the U.S. Attorney’s Office and most defendant’s lawyers become more and more opposed to them because it closes out a lot of things that could come to light with an open file policy. I guess my question to you right now is, is it your understanding this case is being tried under this bill of particulars? MR. COLLINS: Yes, sir, it sure is. The government— THE COURT: You don’t have to tell me anymore. MR. COLLINS: May I make a further response to what the U.S. Attorney said? THE COURT: You can make another response.

I am just trying to close it on down and narrow up what we are doing. I wanted you to make sure you are aware as to what you might be narrowing yourself down to. An open file, as you know, is completely different from trying a case under a bill of particulars. THE COURT: What I am telling you is that by them responding to the bill of particulars and what they told you that is the only obligation they have in this case from their own.

That is why you have to be very particular about the questions that you ask in your request for the bill of particulars, that you just can’t — I guess you can’t have an open file policy and a bill of particulars. MR. COLLINS: I think I understand what you are saying by that, your Honor. Let me just say I have never believed that we were operating under an open file policy....

THE COURT: What I am getting at is I don’t know whether that came about as a result of me laboring under the theory you all were working under an open file policy or whether in the bill of paHiculars you paHicularly asked what tapes they were going to use. THE COURT: I guess what I am trying to tell you. I don’t know because I stopped fooling with the bill of particulars and. started treating it like it was an open file policy. They might not have to give you those tapes. I don’t know whether they do or not.

I have to go back to the bill of particulars and see what kind of parameters have been set up, and bound to be set up for the trial of this case. That is what the bill of particulars is all about. You asked the questions and they give you the answers, and both sides are stuck with that and the case goes to trial. THE COURT: ...

I was kind of putting you on notice if in fact some of these other things, and I don’t know how protected or unprotected they are, if we are operating under the bill of particulars, then the court’s rulings up to this point might not necessarily have confined the government to the bill of particulars. I may have gone outside of what they had to do because I thought, and I guess through an error of mine, that we were operating under an open file policy. That is about it. THE COURT: I may have to do some backtracking now because I was under the opinion we were operating under the open file policy.

From here on forward I am going to this bill of particulars. I don’t think anything I ruled earlier could have prejudiced the defendant, and I don’t know what might be coming in the future. You heard me say this more than one time in other cases. I have about come to the conclusion it is a lot better for the court to make a case operate under a bill of particulars rather than fool around with so called open file policies. That way we can eliminate a lot of Brady problems. A lot of problems we can eliminate. That is all.

I just want to know how we are going to run from here on because this case has got to end sometime. THE COURT: ... My only question to you is are we operating on an open file policy or this bill of particulars which was filed, responses to them, September 19th. It is your indication that is what %ve are operating on so I will operate on that throughout the rest of the case. The government better be prepared to have done what they said. I don’t have to worry about anymore open file questions. J.A. at 410-27 (emphases added).

And the district court seems to have carried this understanding — that the case was not being conducted pursuant to an open file policy — through the remainder of the proceedings until the time when it entered its final order of dismissal. Said the district court at the October 20, 1995, hearing, for example: Now, at the very outset of this matter, and I don’t want to get involved with who it might — but I had suggested way back with members of the U.S. Attorney’s Office that I had the highest respect, as much as anybody I know, and we both were of the opinion that we ought to just have what’s an open file.

That’s different to you than me, but we ought to put everything out and let the defendants get whatever they wanted out of it and then let’s get on with the case. Well, the U.S. Attorney’s Office wasn’t twilling to do that, and I’m sure they had their reasons, and I ivasn’t going to order them to do such a thing, because, you know, I have never ordered anybody to have an open file. It seems to me if they want to file bills of particulars and fool around with them all for months at a time, but it looks like we’re working more and more towards me having to do some sort of thing of that nature.

J.A. at 1935-36 (emphasis added). Accordingly, the record — indeed, the court’s own statements — simply does not support the district court’s inexplicable conclusion that the parties had proceeded under a full open file policy from the outset of the case. 2.

The first specific .example of egregious prosecutorial misconduct cited by the district court was the alleged improper withholding of three FBI 302s prepared by Special Agent Clemens and dated June 14, 1989, June 22, 1989, and July 26, 1989, in which Cobb said that he had made payments to many South Carolina legislators over the years other than defendants Taylor, Bland-ing, Gordon, Derrick and Long, but refused to characterize those payments as “bribes.” 956 F.Supp. at 632-34.

The June 14, 1989, FBI 302 states: COBB related that in regards to giving money to State Legislators, he routinely gives two or three hundred dollars to some just to keep them friendly toward him____ COBB stated that TEE FERGUSON, CHARLES A. HARVIN, III and DONNA MOSS were among those who he would give money. COBB indicated this money was not paid for any specific return benefit other than having someone friendly to him on whom he could call. The June 22, 1989, FBI 302 states in pertinent part: RONALD L.

COBB provided a 1989 South Carolina Legislative Manual in which he had checked off all those legislators to whom he had paid money. When asked if these were bribe type payments or campaign contributions COBB replied, “That’s a hard question to answer.” COBB was then asked if those checked off were persons he had given two, three, or four hundred dollars to for no specific reason other than to maintain favorable contact with COBB. COBB indicated that this was the case, and indicated he would give the money to the legislator and that was it.

If the individual then wanted to .claim it as a campaign contribution and report it or just stick it in his pocket, that was of no concern to COBB. Finally, the July 26, 1989, FBI 302 similarly reads: COBB was asked about the manner in which he would pay legislators several hundred dollars. COBB stated that this was sometimes accomplished with cash, and sometimes by check, either from his business or personal account. COBB advised that sometimes payments were made at official fundraisers and sometimes in a social setting as a token of appreciation for support on something.

COBB stated that sometimes a legislator will drop a hint that money is tight and that they could use some cash. COBB added that if it was someone who was friendly toward his interests he would take care of them with a few hundred dollars. COBB emphasized that he did not know and did not care how they handled or reported the money. COBB’s sole interest was to gain friends and supporters of his interests.

The district court noted that the language from these three FBI 302s was included in the FBI Columbia Office’s 1989 prosecution authorization proposal, which confirmed to the court that the government “was totally familiar with the existence of these 302s,” but “yet [the government] did not turn [these 302s] over to the defendants for use at trial.” 956 F.Supp. at 634.

The district court concluded that these FBI 302s could have been used by the defendants to impeach Cobb’s testimony that his payments to them were bribes, and thus to support their defense that the payments were in fact campaign contributions: Evidence of how Cobb often paid various legislators a few hundred dollars to “keep them friendly” and that it was no concern of his how the recipients handled the monies, was not furnished by the government so as to allow the defendants to attempt to impeach Cobb’s testimony that the payments he made to these defendants (excluding Long) were known by him and by them to be bribes. 956 F.Supp. at 660.

At least defendant Long — and apparently defendant Derrick, as well — received both the June 14 and the June 22 FBI 302s prior to trial, a fact not noted by the district court in its opinion. See Br. of Appellees at 40 (acknowledging that Long had access to the June 14 and June 22 FBI 302s). Apparently, the only one of the FBI 302s that these two defendants did not receive was that of July 26. Thus, of the defendants now before the court (Derrick, Long and Blanding), it appears that only defendant Blanding failed to receive all three of these FBI 302s.

It is doubtful whether these three FBI 302s — which the Department of Justice’s Office of Professional Responsibility concluded were not intentionally withheld by the prosecution but rather were not produced by the FBI to the United States Attorney’s Office— were even “exculpatory,” or, if so, “material,” and thus producible pursuant to the requirements of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The premise of the suggestion that these documents were exculpatory appears to be that campaign contributions cannot, as a matter of law, be the subject of a Hobbs Act prosecution.

Therefore, the argument goes, if the defendants could — by analogy to the payments made by Cobb to other legislators— show that Cobb’s payments to them were campaign contributions, their Hobbs Act prosecutions could not stand. However, as the Supreme Court has held, campaign contributions may be the subject of a Hobbs Act violation, no less than any other payments, if the payments are made in return for. an explicit promise or undertaking by the official to perform or not to perform an official act.

In such situations the official asserts that his official conduct will be controlled by the terms of the promise or undertaking. This is the receipt of money by an elected official under color of official right within the meaning of the Hobbs Act. McCormick, 500 U.S. at 273, 111 S.Ct. 1807; see also Evans, 504 U.S. at 268, 112 S.Ct. 1881 (“We hold today that the Government need only show that a public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts.”); United States v.

Montoya, 945 F.2d 1068, 1074 n. 2 (9th Cir.1991) (noting in prosecution for receipt of illegal honoraria, not campaign contributions, that “[t]he critical question is whether the payments were induced and whether a quid pro quo exists, not how an official labels the payments in his defense to a charge that the payments were extorted”).

Because the mere characterization of a payment as a campaign contribution does not insulate that payment from Hobbs Act prosecution, it is difficult to discern even how the FBI 302s, reciting the frequency with which Cobb made payments to legislators and Cobb’s refusal to characterize the payments he made to other legislators as either campaign contributions or bribes, could be considered exculpatory.

It is less clear still how these documents could be considered “material,” given that they related to individuals other than the defendants, and the payments received by the defendants as quid pro quo in return for their official votes were recorded on both videotape and audiotape. In any event, the substance of Cobb’s testimony was well known to the defendants. Thus, the defendants were free to question Cobb as to which individual legislators he made payments and the circumstances under which the payments were made.

First, each of the defendants was provided a copy of Cobb’s grand jury testimony, in which he both stated that, over the years, he had routinely made $200-$300 payments to a number of legislators, and declined to characterize the payments as either campaign contributions or bribes. Cobb testified before the grand jury on July 17, 1990, for example, that he had often made payments to legislators: [O]ver the years, its been very customary and not unusual at all to give a guy a couple of hundred bucks, $300 bucks along, because he has helped you. And sometimes he’ll come and say, look man, I’m going out.

I want to do this. Can you help me out a little bit. So that’s not unusual at all. J.A. at 2400. And during the same grand jury appearance, in response to a question from a grand juror, he likewise declined to characterize these payments as either campaign contributions or bribes: Q: Is this — do you consider that when you give [the cash] to [the legislators], do you consider that a political contribution or a bribe when you give it to them?

In other words, when you state your case or whatever and hand them money, do you say, this is a political contribution or a campaign contribution or is this something for you? A: In a situation like that, it’s kind of understood if I pull cash out of my pocket and give it to, Mr. Legislator, and you put it in you pocket, then I don’t know nothing and you don’t know nothing. Id. at 2401.

In addition to receiving Cobb’s grand jury testimony, the defendants also received a copy of a May 1, 1989, FBI 302 in which Cobb was reported to have said that he “ha[d] made many contributions in the $300 to $500 range to elected officials over the years,” and that “most of these contributions would be legal in the strict sense of the word, but his reason for making them was for favorable consideration of his lobbying efforts.” J.A. at 2177. Thus, it is plain that the defendants were fully aware of the very same information included within the FBI 302s from a number of other sources.

Indeed, that Cobb had frequently made payments to other legislators in the past appears to have been a fact well known to all from the inception of the prosecution. The Supreme Court has said that “[t]he 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.” United States v.

Agurs, 427 U.S. 97, 109-10, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); rather, “[t]he 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.” United States v. Bagley, 473 U.S. 667, 678, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). From the foregoing, it is apparent that, in no sense at all, can it be said that the proceeding below would have been different had the defendants been provided the three FBI 302s discussed.

Accordingly, because Brady did not require production of these three FBI 302s, the prosecution’s failure to produce the documents to defendants was not error — much less intentional misconduct. 3. As another example of egregious prosecutorial misconduct, the district court cited to the government’s failure to produce the July 18, 1990, FBI 302s of defendant-legislators James Faber, Frank Earl McBride, and Ennis Maurice Fant, in which each legislator characterized as “campaign contributions” the payments he received from Cobb in connection with the parimutuel betting legislation. 956 F.Supp. at 634.

In a single sentence, the district court stated, without substantive explanation, that “[e]ven had the defendants not been able to utilize these 302s at trial as statements of unavailable witnesses ... it is the opinion of the court that these 302s should have been provided as relevant discovery material.” Id.

As with the FBI 302s of Cobb, in which Cobb admitted making payments to many different South Carolina legislators but refused to characterize the payments as either campaign contributions or bribes, it is difficult as a threshold matter even to discern the relevancy of the Faber, McBride, and Fant 302s to defendants’ Hobbs Act prosecutions. That these three legislators regarded the payments they received as campaign contributions, rather than bribes, would appear to be neither exculpatory nor material for the same reasons that Cobb’s FBI 302s would not have been exculpatory or material.

The exculpatory and material character of these FBI 302s is diminished even further, if not eliminated altogether, by the fact that each of the three legislators were either unindict-ed targets or had actually been indicted and pled guilty at the times of the defendants’ trials; thus, their testimony that they regarded the payments they received, not as bribes, but as campaign contributions, could hardly be considered exculpatory. Moreover, as the district court recognized, the statements by the legislators in these FBI 302s likely would not even have been admissible at trial because they are hearsay. 4.

The district court additionally admonished the government for not producing to the defense certain video and audio recorded conversations dated January 16, 1990, and April 5, 1990, between Cobb and state legislator Robert Kohn, whom Cobb paid to. recruit other legislators to support the parimutuel betting legislation. During the January 16 conversation, the following exchange took place between Kohn and Cobb: COBB: And if we make a showin’ and you’re gonna see what they do, I mean, they, and they’re willin’ to do, they’ll do whatever I ask ‘em to do.

KOHN: See, I, I think that they, we got the thing out of committee with no one doing anything. COBB: Yeah, yeah. KOHN: No money, and you know, just, just doin’ for the issue. Now the Baptist Courier sent their note out last week, I mean, and its gonna be, they’re, they’re gonna follow it. So people that are under the control of Baptist Courier are gonna run. COBB: How many people do you think that we can, that we can get the one-on-one situation with and where we give them the right motivation, like I say, we gotta, you know, we gotta do a good showin’.

KOHN: I’m sure we can, no, we, no I think we can do well on that. KOHN: Let me start, I’ll start first thing in the, well hell, I might even start tonight. COBB: Right. KOHN: (Unintelligible) COBB: You know how to, I mean you know how to work it and cover us, I mean, we don’t want come [sic] over there and say well, here, they’re gonna buy the damn thing. KOHN: No I understand. J.A. at 2337-2340. And during the April 5 conversation, Kohn tells Cobb: I’m not trying to hold back, I mean I realize (unintelligible) I ain’t trying to play that game. (Unintelligible) I’ve been asked for gold coins.

If it doesn’t look like money should be brought up, I don’t do it to hold back money, I just don’t think it’s good to bring it up (unintelligible). I use (unintelligible) some of them I just casual comment about a contribution to their campaign ‘cause see if you have to do that I can write a check and tell them I think their [sic] a good spirited citizen (unintelligible). 956 F.Supp. at 635.

Again without any explanation, and in a single conclusory sentence, the district court recited merely that, [t]hese tapes, as well as the numerous other audio and video tapes furnished to the defendants on November 29, 1993, certainly must be viewed as exculpatory evidence which could have been used to further the defense put forth by these defendants that they considered the monies they received from Cobb to be campaign contributions. Id. at 636.

Presumably the district court concluded that, as legislator Taylor had argued, the January 16 tape established that the payments he received were not a quid pro quo for his support of the parimutuel betting legislation because this bill had been voted out of his committees prior even to institution of the sting operation. See id. at 635.

It cannot be determined what underlay the district court’s conclusion that the April 5 tape of the telephone conversation between Kohn and Cobb should have been produced, except that Taylor’s name appeared in the FBI 302 that reproduced the transcript of the telephone conversation and it “[was] impossible for the court to ascertain whether [Taylor] was present at the time the [quoted] statement was made to Kohn.” Id. at 635.

Because Taylor’s name “[did] appear in the cover FD-302, yet he was not furnished this tape or the FD-302 and transcription prior to his trial,” the district court reasoned that the tape was wrongfully withheld. With respect to the January 16 tape, it appears that the district court was simply incorrect that it had not been produced by the government. • In fact, as Taylor’s counsel Joel Collins candidly acknowledged in open court, J.A. at 420, the tape had been produced for inspection pursuant to the district court’s order, but he simply had not had an opportunity to view it.

Apart from the fact that defense counsel was provided access to the January 16 tape, it is hard to imagine, as with the FBI 302s of Cobb and of the three co-conspirator legislators, how this tape is exculpatory or material. Even assuming that Taylor supported the parimutuel betting legislation in committee the previous spring, see J.A. at 2338 (statement of Kohn that “nobody’s really done anything since the committee last spring voted on the thing”), it was still possible that he violated the Hobbs Act by receiving money in return for his continued support of the legislation on the floor of the Statehouse.

The receipt of money, even for official action that would have been taken anyway, violates the Hobbs Act, as we held in United States v.Paschall, 772 F.2d 68 (4th Cir.1985), cert. denied, 475 U.S. 1119, 106 S.Ct. 1635, 90 L.Ed.2d 181 (1986). It is unclear whether the April 6 tape, in particular, was produced to the defense, but, in any event, it was neither discoverable nor ordered produced by the district court.

Not only is the conversation recorded on this tape not (at least not evidently) exculpatory, describing only the care with which Kohn decided whether or not to raise with legislators the question of money in return for their votes, but the record establishes clearly that, at the October 11, 1990, evidentiary hearing conducted by the court, the government offered to provide this and all other tapes to the court for its review and determination of whether exculpatory information was included, an offer which Taylor’s counsel rejected. See J.A. at 353 (statement of Mr.

DuTremble that “I am willing to provide the court with all tapes. And the government’s position is let the court make an independent determination, that is, as to what is or is not exculpatory”); id. at 343 (statement by Joel Collins that “I would like the record to show that we would like to withdraw our consent to the in camera review of potentially exculpatory evidence.”).

Furthermore, the order entered by the district court at the conclusion of its full eviden-tiary hearing on October 11, 1990, during which this and the other tapes were discussed, required only that the government produce for defense inspection “videotapes” in the government’s possession, and thus did not cover the April 6 tape, which was an audiotape. See J.A. at 395-97 (district court order). 5.

The district court also relied in part for its dismissal of the defendants’ indictments on the nonproduction of copies of nine checks written by Cobb to various South Carolina legislators in amounts ranging from $100-$650.

The district court noted that the defendants argued that copies of these checks would have “eorroborate[d] the information ... from the FD-302s of June 14, 1989, June 22, 1989, and July 26, 1989, and that this information would have served to refute Cobb’s testimony at the trials that the payments he made to these defendants were definitely known by them to be bribes.” 956 F.Supp. at 634 (citation omitted). Again, the district court offered no analysis or reasoning in support of its conclusion that these documents should have been produced.

The court simply repeated that the defendants argued that copies of these checks would have aided them in them defense. We are unable to divine how these checks written by Cobb to legislators other than the defendants would be exculpatory or material. “Corroboration” of the fact that Cobb had made many payments over the years to other legislators was unnecessary, as there was ample evidence of this fact and the fact was not disputed; nor is it apparent how these cheeks would have served to refute any suggestion by Cobb that his payments to the defendants were bribes.

Even the district court did not initially order production of these checks when, in 1995, they, and other materials, were provided to the court for in camera inspection. When, upon subsequent motion, the court concluded that these documents “were not properly identified by the court in its original in camera review,” J.A. at 1112, 1443 n. 1 (district court order of Sept. 7,1995), and should be produced, id. at 1444, 1455, the district court stated only that “[a]t this point, ... the court simply states that it is of the opinion that these documents should now be turned over to the defendants.” Id. at 1444. 6.

The district court rested its dismissal of defendants’ indictments also upon the government’s failure to produce all of its files bearing on Cobb’s drug use from 1988, forward: The full scope of Cobb’s drug usage was often sought by the defendants in their quest for discovery materials which might impeach Cobb’s testimony at defendants’ trials.

On November 29, 1993, the defendants received a minimum of six FBI documents which revealed that Cobb had been under investigation by the FBI for drug violations since early 1988, and that he had used cocaine on at least two other previously unknown occasions in May of 1989, after he went to work for the FBI. Several of these documents indicate that Cobb was reputed to be a cocaine “trafficker” and implicated others, such as Greer and Kohn.

In contrast to representations by the government on the record in open court that they had given the defendants each and every tape they had, some 50 audiotapes and 118 FD-302s, which contain evidence bearing on Cobb’s drug usage and trafficking, were received by defendants in February of 1995. 956 F.Supp. at 650 (district court op.; citations omitted).

As a consequence of the nondisclosure of these documents, the district court concluded, [a]ll of the defendants ... were unable to impeach Cobb’s testimony and confront him with the fact that he had been involved in drugs on more occasions and over a longer period of time than' disclosed, and that his involvement in drugs was so deep that he had earned the reputation of a “trafficker.” Id. at 651. These documents were, as the district court noted, not produced to the defendants prior to their trials.

Additionally, it appears that the defense also did not receive, prior to trial, the information relating to Cobb’s drug use in May of 1989. However, each of the defendants did receive copies of Cobb’s grand jury testimony in which he detailed his drug purchases from and for South Carolina legislators and his personal use of cocaine during 1987-88, including his personal use of cocaine with the individual legislators. See J.A. at 2402-16 (grand jury testimony). Before the grand jury, Cobb testified essentially that he had gotten together with a group of individuals every week or so during 1987-88 to do drugs.

See, e.g., J.A. at 2414; see also id. at 2407 (statement by Cobb that “you would have a little get together with people who use cocaine. And certainly I would use it, and I did it, too.”). Cobb also testified before the grand jury that he had actually used cocaine in 1989, and as late as the latter part of 1989. J.A. at 2414-16.

As the district court noted, in addition to Cobb’s substantial grand jury testimony concerning his cocaine purchases and use, “Cobb’s drug usage on the dates of October 13, October 18 and November 18, 1989, was disclosed at the [defendants’] trials,” Cobb’s “indictment for possession of cocaine on February 2, 1990, and January 11, 1991, was returned a few days prior to the Bland-ing/Gordon trial,” and Cobb “pled guilty to these incidents prior to the Derrick and Long trials.” 956 F.Supp. at 649-50.

Moreover, as the Department of Justice explains, each defendant was also apprised of Cobb’s “drug-related arrest in 1989, including the fact that it occurred while Cobb was attempting to purchase a kilogram of cocaine.” Br. for the United States at 65. Additionally, Cobb testified during the Blanding and Gordon trial that he had used or provided cocaine to South Carolina legislators 50-60 times.

Against the backdrop of the considerable amount of evidence known by or provided to the defendants about Cobb’s personal cocaine use and distribution over the years, including use in 1989 after his employment with the government began, it is impossible to conclude that the investigatory documents generated in 1988, prior even to the initiation of the Lost Trust investigation, and the documents revealing only a handful of previously unknown personal uses in May of 1989 and in 1990 and 1991, were anything but cumulative and immaterial. 7.

The district court also concluded that the government had wrongfully failed to produce to defendant Taylor a December 6, 1989, videotape of legislator Kohn selling Cobb $500 worth of cocaine and using cocaine. The district court said that it had referenced this issue “to show the cumulative effect on the defense of potentially impeachable material not being fully or timely disclosed.” 956 F.Supp. at 651.

Again, we are at a loss to understand the reason for the district court’s inclusion of this incident as an example of “egregious prose-cutorial misconduct,” because the district court itself, in its own opinion, recognized that the prosecution had apprised Taylor’s counsel of the tape by letter before trial and that, as with the other video tapes, see discussion swpra, Taylor’s counsel, simply had not had time to view the tape: Taylor concedes that he received a letter from the government very shortly before trial telling him that the government had evidence of Kohn giving cocaine to Cobb.

He argues that he was deeply involved in preparing for trial; and that since this is all that he was told, he did not take the time to pursue it. 956 F.Supp. at 651. The district court even noted that “[although it is the government’s responsibility to disclose evidence to the defendants in a timely and honest manner, it is also the responsibility of the defense to review that evidence when it is disclosed.” Id. In any event, it is doubtful whether the tape would have been admissible at trial, given that Kohn testified at trial to his extensive drug and alcohol use.

Id (district court noting that “Kohn’s involvement in the extensive use of cocaine and alcohol was admitted by him during the trials”). B. Through innuendo only, and without any explanation as to any conclusions it drew, the district court also suggested in its order that FBI Special Agent Clemens and Ron Cobb perjured themselves concerning an October 18, 1990, early-morning visit by Clemens and Cobb to the home of Steven H.

Smith, a close friend of Senator Lindsay, and a telephone call that morning to Lindsay by Clemens and Cobb, during which the issue of Cobb’s payment of $10,000 to Senator Magnum and Senator Lindsay in connection with the Oil Jobber’s Bill was discussed. (All of the defendants knew of this visit and call before their trials; accordingly, the issue is not disclosure, but, rather, possible wrongdoing by the prosecution and the FBI agent involved.) The district court intimated that Clemens lied when he testified that the purpose of the telephone call was to inform Lindsay that Cobb was going to testify as to the $10,000 payment the following day at the Luther Taylor trial, and that Cobb similarly lied (at least initially) that this was the purpose of the telephone call.

Clemens testified at the district court’s February 28, 1991, evidentiary hearing that the purpose of the visit and the telephone call was to enable Cobb to tell Lindsay of Cobb’s expected testimony about the payment the next day so that Lindsay, Cobb’s close friend, would not first learn of the testimony through the media. J.A. at 823-25. Clemens testified that when Cobb became too emotional to carry on the telephone call with Senator Lindsay, he (Clemens) informed Lindsay of Cobb’s impending testimony as to the Lindsay payment. J.A. at 839-40.

Cobb likewise testified that the purpose of the telephone call was so that he could tell Lindsay that he was going to testify about the payment before Lindsay learned of the testimony from the media. J.A. at 812-14 (testimony of Cobb). Cobb denied that the purpose of the telephone call was to determine, with Lindsay, how to characterize the $10,000 payment. J.A. at 814-15 (testimony of Cobb).

Following this testimony by both Clemens and Cobb in February of 1991, the district court denied Blanding’s and Gordon’s motion to dismiss their indictments on the ground that Clemens and Cobb had perjured themselves and that the purpose of the telephone call was to coordinate witness testimony. In April of 1991, after the Blanding and Gordon trial, when Taylor was seeking bail pending appeal, Smith also testified to the October 18 events.

He detailed his understanding that Cobb wanted to characterize the $10,000 payment as a legal fee, but that Agent Clemens insisted that he could not do so because the payment was not for legal services. J.A. at 911-12, 917 (testimony of Smith). This was the state of the record until four and a half years later, in October of 1995, when Smith testified to the events again. At this hearing, without explaining its omission from his testimony years earlier, Smith testified repeatedly that Cobb had been authorized by the United States Attorney to characterize the $10,000 payment as an attorney’s fee.

J.A. at 1563-64, 1569, 1582-83 (testimony of Smith). He also testified repeatedly that Cobb was refusing to characterize the payment truthfully absent permission to do so from Lindsay. J.A. at 1565-66,1569,1583 (testimony of Smith). Cobb, too, in his testimony during the same hearing, suggested that someone in the United States Attorney’s Office had told him that he could characterize the payment as a legal fee. J.A. at 1617-19, 1637-41.

Based upon the latter testimony of Smith, which the district court viewed as consistent with Smith’s February 1991 testimony, and of Cobb, the district court stated that Smith’s testimony: indicates that SA Clemens, himself was not entirely truthful in his testimony at the hearing on February 27, 1991, when. he described the purpose of the visit [of October 18] as one only to give information to Lindsay. Further, it indicates that Cobb also was not truthful in his testimony at the February 1991 hearing. 956 F.Supp. at 648.

The court characterized as “shocking” both the involvement of Clemens in the early morning visit and the October 1995 testimony by Cobb that the United States Attorney had authorized him to call the' $10,000 payment an “attorney’s fee.” Id.

As to Cobb’s 1995 testimony about the payment characterization, the district court expressly declined to “make a specific finding as to Cobb’s truthfulness,” and therefore a finding as to whether United States Attorney Daniel authorized Cobb to term the payment an “attorney’s fee.” In fact, the district court said that it was “loath to give credence to Cobb’s testimony over the statements of these prosecutors.” Id. at 649.

And, of course, not only did Smith repeatedly testify that Clemens had insisted that Cobb tell the truth about the payment, but Cobb never testified in any proceeding that the payment was an “attorney’s fee.” Therefore, there is no basis for concluding that the United States Attorney engaged in any wrongdoing in connection with Cobb’s characterization of the $10,000 payment to Senator Lindsay.

As to Clemens’ participation in the early morning visit to Smith’s house and the telephone call to Senator Lindsay, the government admits that such was “unorthodox and, in retrospect, ill-advised.” Br. of United States at 96. But there is nothing to suggest that Clemens engaged in wrongdoing.

Indeed, to the contrary, Smith, upon whose testimony the district court relied for the suggestion of wrongdoing, repeatedly testified that Clemens and Cobb had been arguing over whether Cobb would tell the truth— as Clemens insisted — or characterize the payment as a legal fee, and that Clemens, throughout the evening, had insisted that Cobb tell the full truth. J.A. at 912, 1583, 1588. Smith even said the following of Clemens: Q: Did you see Mike Clemens in any way at all that night act in an inappropriate way? A: No. I saw Mr. Clemens trying to. perform in the most appropriate way.

Q: And I believe that your opinion of Mike Clemens’ actions on that night were all above — everything he was doing was aboveboard? A: My opinion of Mike Clemens that night and on every occasion I have ever met him are very high. He was trying — he was trying to set — and he was trying to make things the truth and right in the day’s following testimony. J.A. at 1589. The district court did not even say what purpose Cobb’s telephone call to Lindsay served other than the one identified by Cobb and Clemens.

And there is clearly insufficient evidence from which to infer a purpose for Cobb’s telephone call to Lindsay other than that to which Cobb and Clemens initially testified. Both Cobb and Clemens testified that the purpose was not to obtain permission from Lindsay to characterize the payment in a particular way, and, of course, Smith was not a party to the telephone call, but only present in the room when the call occurred.

See, e.g., J.A. at 1569 (Smith noting that when Cobb was on the telephone with Lindsay “I was then talking to Agent Clemens over on the other side, so it was kind of out one ear and the other----”). And obviously there is no basis for concluding that Clemens’ testimony was necessarily false based upon Smith’s 1995 testimony as to the purpose of the telephone call, because that testimony was based (if not upon the partial conversations he heard contemporaneously) upon Cobb’s statements to Smith, not on the call itself.

As the government notes, “if Smith’s testimony was based on his conversation with Cobb, it does not show that Clemens testified falsely when he stated his own understanding regarding the ‘purpose’ of the call.” Br. of United States at 97. The only other possible basis for concluding that there was more to the telephone call than Clemens and Cobb testified is the district court’s observation that “Lindsay was no stranger to publicity, and a notice to him that his name might appear in the media as a result of Cobb’s testimony would certainly not warrant a telephone call to a dying man in t

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