United States v. Carla Strifler & Ronald Wayne Strifler, Also Known as Ronald Wayne Norris, 851 F.2d 1197 (9th Cir. 1988). · Go Syfert
United States v. Carla Strifler & Ronald Wayne Strifler, Also Known as Ronald Wayne Norris, 851 F.2d 1197 (9th Cir. 1988). Cases Citing This Book View Copy Cite
“it would have to be a very naive magistrate who would suppose that a confidential informant would drop in off the street with . . . detailed evidence and not have an ulterior motive.”
87 citation events (36 in the last 25 years) across 18 distinct courts.
Strongest positive: United States v. Soto-Garcia (ca10, 2000-06-22)
Treatment trajectory · 1988 → 2026 · click a year to view as-of
1988 2007 2026
Top citers, strongest first. 50 distinct citers.
discussed Cited as authority (verbatim quote) United States v. Soto-Garcia
10th Cir. · 2000 · signal: cf. · quote attribution · 1 verbatim quote · confidence high
it would have to be a very naive magistrate who would suppose that a confidential informant would drop in off the street with . . . detailed evidence and not have an ulterior motive.
discussed Cited as authority (quoted) United States v. Alvarez (2×) also: Cited "see"
9th Cir. · 2007 · quote attribution · 1 verbatim quote · confidence low
evidence that is merely cumulative is not material.
discussed Cited as authority (rule) Stephen Comstock v. Stefanie Humphries
9th Cir. · 2015 · confidence medium
See United States v. Mejia-Mesa, 153 F.3d 925, 927-28 (9th Cir.1998); United States v. Strifler, 851 F.2d 1197, 1202 (9th Cir.1988); cf. McCormick v. United States, 500 U.S. 257 , 270 n. 8, 111 S.Ct. 1807 , 114 L.Ed.2d 307 (1991) (noting that the Supreme Court “has never held that the right to a jury trial is satisfied when an appellate court retries a case on appeal under different instructions and on a different theory than was ever presented to the jury.
discussed Cited as authority (rule) United States v. John Doe (2×) also: Cited "see"
9th Cir. · 2013 · confidence medium
See Alvarez, 358 F.3d at 1209 (citing Pennsylvania v. Ritchie, 480 U.S. 39, 58 , 107 S.Ct. 989 , 94 L.Ed.2d 40 (1987); United States v. Strifler, 851 F.2d 1197, 1202 (9th Cir.1988)).
discussed Cited as authority (rule) Johnson v. United States
N.D. Iowa · 2012 · confidence medium
See Montgomery v. Bobby, 654 F.3d 668, 679 (6th Cir.2011) (noting "this circuit has repeatedly acknowledged that ‘[e]vidence that is merely cumulative to evidence presented at trial is not material for purposes of Brady analysis.’ ” (quoting Brooks v. Tenn., 626 F.3d 878, 892 (6th Cir.2010))); Lopez v. Ryan, 630 F.3d 1198, 1210 (9th Cir.2011) (" 'Evidence that is merely cumulative is not material.’ ”) (quoting United States v. Strifler, 851 F.2d 1197, 1202 (9th Cir. 1988)); United States v. Turner, 501 F.3d 59, 73 (1st Cir.2007) (holding "[sjuppressed evidence that is merely cumulati…
cited Cited as authority (rule) Lopez v. Ryan
9th Cir. · 2011 · confidence medium
“Evidence that is merely cumulative is not material.” United States v. Strifler, 851 F.2d 1197, 1202 (9th Cir.1988).
cited Cited as authority (rule) United States v. Jonathan Toliver
9th Cir. · 2010 · confidence medium
United States v. Strifler, 851 F.2d 1197, 1202 (9th Cir.1988).
discussed Cited as authority (rule) United States v. Skilling
5th Cir. · 2009 · confidence medium
When, however, a district court rules on whether a defendant should have access to particular information in a government document that has been produced pursuant to Brady , we review for clear error.” (citations omitted)); United States v. Strifler, 851 F.2d 1197, 1202 (9th Cir.1988) (“We adopt the rule that we will reverse for denial of Brady material from a probation file if, on review of the file, we find that the district court committed clear error in failing to release probative, relevant, material information.”). 75 .
discussed Cited as authority (rule) United States v. Boechler
9th Cir. · 2007 · confidence medium
We will reverse a judgment based on a denial of Brady material “if, on review of the file, we find that the district court committed clear error in failing to release probative, relevant, material information.” United States v. Strifler, 851 F.2d 1197, 1202 (9th Cir.1988).
discussed Cited as authority (rule) United States v. Jaeger (2×) also: Cited "see"
9th Cir. · 2005 · confidence medium
United States v. Strifler, 851 F.2d 1197, 1202 (9th Cir.1988).
discussed Cited as authority (rule) United States v. Rene Blanco
9th Cir. · 2004 · confidence medium
Brady/Giglio information includes “material ... that bears on the credibility of a significant witness in the case.” United States v. Brumel-Alvarez, 991 F.2d 1452, 1461 (9th Cir.1993), amending 976 F.2d 1235 (9th Cir.1992) (quoting United States v. Strifler, 851 F.2d 1197, 1201 (9th Cir.1988)) (alteration in original).
cited Cited as authority (rule) United States v. Pope
M.D. Tenn. · 2004 · confidence medium
United States v. Strifler, 851 F.2d 1197, 1201 (9th Cir.1988), cert. denied, 489 U.S. 1032 , 109 S.Ct. 1170 , 103 L.Ed.2d 228 (1989) (quoted in Martin at 399).
discussed Cited as authority (rule) United States v. Vega
9th Cir. · 2004 · confidence medium
The Brady rule covers exculpatory evidence as well as impeachment evidence, Hanna, 55 F.3d at 1459 , including material “bear[ing] on the credibility of a significant witness in the case,” United States v. Strifler, 851 F.2d 1197, 1201 (9th Cir.1988).
discussed Cited as authority (rule) United States v. Francisco Javier Alvarez, A.K.A. Frank Javier Alvarez, United States of America v. Richard Valenzuela (2×)
9th Cir. · 2004 · confidence medium
Thus, “[a] defendant is entitled to material in a probation file that bears on the credibility of a significant witness in the case.” United States v. Strifler, 851 F.2d 1197, 1201 (9th Cir.1988) (citing Brady, 373 U.S. at 87 , 83 S.Ct. 1194 ).
discussed Cited as authority (rule) State v. French
Haw. App. · 2004 · confidence medium
The Ninth Circuit Court of Appeals has held that “[a] defendant is entitled to material in a probation file that bears on the credibility of a significant witness in the case.” United States v. Strifler, 851 F.2d 1197, 1201 (9th Cir.1988).
cited Cited as authority (rule) United States v. Pace
9th Cir. · 2003 · confidence medium
United States v. Strifler, 851 F.2d 1197, 1201-02 (9th Cir. 1988).
cited Cited as authority (rule) United States v. Francisco Mendoza-Prado, Aka, Paco
9th Cir. · 2002 · confidence medium
We review for clear error, United States v. Strifler, 851 F.2d 1197, 1202 (9th Cir.1988), and find none.
discussed Cited as authority (rule) United States v. Timothy A. Bishop
9th Cir. · 2001 · confidence medium
As we explained in United States v. Strifler, 851 F.2d 1197, 1201 (9th Cir.1988), “[i]t would have to be a very naive magistrate who would suppose that a confidential informant would drop in off the street with such detailed evidence and not have an ulterior motive.” At the suppression hearing, the district court never explored Holmes’ motivation for giving the statements to Detective Hess.
cited Cited as authority (rule) State v. Mitchell
Mo. Ct. App. · 2000 · confidence medium
Id. at 1201 (emphasis added).
discussed Cited as authority (rule) Odle v. Calderon
N.D. Cal. · 1999 · confidence medium
See e.g., United States v. Perdomo, 929 F.2d 967 (3d Cir.1991); Carriger v. Stewart, 132 F.3d 463 (9th Cir.1997); United States v. Auten, 632 F.2d 478 (5th Cir.1980); United States v. Strifler, 851 F.2d 1197, 1201-02 (9th Cir.1988); United States v. Cadet, 727 F.2d 1453, 1467 (9th Cir.1984); accord United States v. Jennings, 960 F.2d 1488, 1490-91 (9th Cir.1992).
discussed Cited as authority (rule) United States v. Shabazz
D. Or. · 1998 · confidence medium
In United States v. Strifler, 851 F.2d 1197, 1201 (9th Cir.1988), the United States Court of Appeals for the Ninth Circuit stated that “[a] defendant is entitled to material in a probation file that bears on the credibility of a significant witness in the case.
discussed Cited as authority (rule) United States v. Beckford
E.D. Va. · 1997 · confidence medium
The trial court should then review the file in camera and release to the defendant all information of this character.” 851 F.2d 1197, 1201-02 (9th Cir.1988) (citations omitted), cert. denied, 489 U.S. 1032 , 109 S.Ct. 1170 , 103 L.Ed.2d 228 (1989).
cited Cited as authority (rule) United States v. Storey
D. Kan. · 1997 · confidence medium
United States v. Strifler, 851 F.2d 1197, 1202 (9th Cir.1988).
discussed Cited as authority (rule) United States v. Trevino
4th Cir. · 1996 · confidence medium
Upon evaluating the reports in accordance with the standards set forth in Figurski, the court con- cluded that it need not disclose any of the information contained therein. _________________________________________________________________ 6 In evaluating the probable materiality and favorability of the requested information, the district court may consider, among other things, whether the material may be available from other sources and, if impeachment material, whether the witness will effectively be impeached otherwise. 10 We review only to see whether the district court's decision was clea…
discussed Cited as authority (rule) United States v. Carlos Trevino (2×)
4th Cir. · 1996 · confidence medium
We review only to see whether the district court’s decision was clearly erroneous. 7 United States v. Strifler, 851 F.2d 1197, 1202 (9th Cir.1988), cert. denied, 489 U.S. 1032 , 109 S.Ct. 1170 , 103 L,Ed.2d 228 (1989).
discussed Cited as authority (rule) United States v. Nelson Gomez-Rodriguez
9th Cir. · 1996 · confidence medium
We find that the court did not clearly err by denying Gomez-Rodriguez's request for a downward adjustment. 31 We conclude that none of the issues addressed in this disposition provides a ground for reversing the conviction or vacating the sentence. 32 AFFIRMED. * The Honorable Thomas S. Zilly, United States District Judge for the Western District of Washington, sitting by designation ** This disposition is not appropriate for publication and may not be cited to or used by the courts of this circuit except as provided by Ninth Circuit Rule 36-3 1 The clear error standard used in United States v…
discussed Cited as authority (rule) United States v. Michael Benson, United States of America v. Alexander Peter Steblowsky
9th Cir. · 1996 · confidence medium
United States v. Strifler, 851 F.2d 1197, 1202 (9th Cir.1988), cert. denied, 489 U.S. 1032 (1989). 10 The district court did not abuse its discretion in seating the juror who had served three weeks earlier on the jury in an unrelated criminal case in which Steblowsky's defense counsel had represented the defendant.
cited Cited as authority (rule) UNITED STATES of America, Plaintiff-Appellee, v. Benton D. BURT, Defendant-Appellant
9th Cir. · 1996 · confidence medium
United States v. Strifler, 851 F.2d 1197, 1202 (9th Cir.1988), cert. denied, 489 U.S. 1032 , 109 S.Ct. 1170 , 103 L.Ed.2d 228 (1989).
discussed Cited as authority (rule) United States v. Timothy Alexander (2×)
9th Cir. · 1996 · confidence medium
"Evidence that is merely cumulative is not material." United States v. Strifler, 851 F.2d 1197, 1202 (9th Cir.1988), cert. denied, 489 U.S. 1032 (1989).
discussed Cited as authority (rule) Dwayne Earl Bartholomew v. Tana Wood, Superintendent of the Washington State Penitentiary
9th Cir. · 1994 · confidence medium
In United States v. Brumel-Alvarez, 991 F.2d 1452 (9th Cir.1993), we explained that “Brady information includes ‘material ... that bears on the credibility of a significant witness in the case.’ ” Id. at 1461 (quoting United States v. Strifler, 851 F.2d 1197, 1201 (9th Cir.1988), cert. denied, 489 U.S. 1032 , 109 S.Ct. 1170 , 103 L.Ed.2d 228 (1989)) (ellipsis in Brumel-Alva rez).
discussed Cited as authority (rule) United States v. Jose Martin Maya-Azua
9th Cir. · 1994 · confidence medium
Favorable evidence includes information "that bears on the credibility of a significant witness in the case," United States v. Strifler, 851 F.2d 1197, 1201 (9th Cir.1988), cert. denied, 489 U.S. 1032 (1989), including impeachment evidence.
cited Cited as authority (rule) United States v. Catherine Kearns, United States of America v. James R. Kearns, Jr.
9th Cir. · 1993 · confidence medium
United States v. Bagley, 473 U.S. 667 , 105 S.Ct. 3375 , 87 L.Ed.2d 481 (1985); United States v. Strifler, 851 F.2d 1197, 1201 (9th Cir.1988).
discussed Cited as authority (rule) United States v. Cesar Armando Echeverria
9th Cir. · 1993 · confidence medium
At other times, the court has reviewed for clear error, see United States v. Strifler, 851 F.2d 1197, 1201-02 (9th Cir.1988), cert. denied, 489 U.S. 1032 (1989), and explained that this standard is appropriate where some, but not all, of a document has been produced.
discussed Cited as authority (rule) United States v. James Vernon Mageean
9th Cir. · 1993 · confidence medium
United States v. Strifler, 851 F.2d 1197, 1202 (9th Cir.1988). 6 In cases reversing a conviction on the grounds of undisclosed impeachment testimony, the Supreme Court has emphasized the crucial nature of the unimpeached witnesses' testimony.
discussed Cited as authority (rule) ca9 1993 (2×)
9th Cir. · 1993 · confidence medium
At other times we have reviewed for clear error, see United States v. Strifler, 851 F.2d 1197, 1201-02 (9th Cir.1988), cert. denied, 489 U.S. 1032 , 109 S.Ct. 1170 , 103 L.Ed.2d 228 (1989), and explained that this standard is appropriate where some, but not all, of a document has been produced.
discussed Cited as authority (rule) United States v. Jearold Kenneth Williams, United States of America v. George Allen
9th Cir. · 1993 · confidence medium
As was noted by this court in United States v. Strifler, 851 F.2d 1197, 1201 (9th Cir.1988), cert. denied, 489 U.S. 1032 , 109 S.Ct. 1170 , 103 L.Ed.2d 228 (1989), “[i]t would have to be a very naive magistrate who would suppose that a confidential informant would drop in off the street with such detailed evidence and not have an ulterior motive.
discussed Cited as authority (rule) United States v. Dick Ozbun Travis
9th Cir. · 1993 · confidence medium
He testified that there were appeared to be gas spigots in the laboratory, that there was a laser in the laboratory, and that there was an object which looked like a bomb or warhead. 10 The district court concluded that "[t]he affidavit sufficiently establishes the reliability of the informant in the areas relevant to the issuance of the warrant" and that "[t]he informant's information was self-corroborating and was corroborated by other evidence in the affidavit." Cf. United States v. Strifler, 851 F.2d 1197, 1201 (9th Cir.1988) ("The omission of material bearing on the informants' credibilit…
discussed Cited as authority (rule) United States v. Marco Anthony Rzeslawski
9th Cir. · 1992 · confidence medium
Given the historical accuracy and detail of Becerra's information and the corroborating evidence in this case, we hold that the omission of information bearing on the Becerra's credibility "was not material because the magistrate was provided sufficient circumstances to have a substantial basis for finding probable cause." United States v. Strifler, 851 F.2d 1197, 1201 (9th Cir.1988), cert. denied, 489 U.S. 1032 (1989). 27 III.
discussed Cited as authority (rule) Martin E. Rivers v. Robert G. Borg, Warden
9th Cir. · 1992 · confidence medium
See United States v. Marashi, 913 F.2d 724, 732 (9th Cir.1990) ("merely cumulative impeachment evidence ... [is] not Brady material"); United States v. Strifler, 851 F.2d 1197, 1202 (9th Cir.1988), cert. denied, 489 U.S. 1032 (1989). 6 Rivers' discovery request for a year's worth of logs on the general theory that the logs might have demonstrated a pattern of police behavior helpful to the defense did not provide a sufficient basis to require the trial court to conduct an in camera review of the logs.
discussed Cited as authority (rule) United States v. Brumel-Alvarez
9th Cir. · 1992 · confidence medium
The Brady Violation Brady information includes “material ... that bears on the credibility of a significant witness in the case.” United States v. Strifler, 851 F.2d 1197, 1201 (9th Cir.1988), cert. denied, 489 U.S. 1032 , 109 S.Ct. 1170 , 103 L.Ed.2d 228 (1989).
discussed Cited as authority (rule) ca9 1992
9th Cir. · 1992 · confidence medium
The Brady Violation 71 Brady information includes "material ... that bears on the credibility of a significant witness in the case." United States v. Strifler, 851 F.2d 1197, 1201 (9th Cir.1988), cert. denied, 489 U.S. 1032 , 109 S.Ct. 1170 , 103 L.Ed.2d 228 (1989).
discussed Cited as authority (rule) United States v. Brumel-Alvarez (2×)
9th Cir. · 1992 · confidence medium
At other times we have reviewed for clear error, see United States v. Strifler, 851 F.2d 1197, 1201-02 (9th Cir.1988), cert. denied, 489 U.S. 1032 , 109 S.Ct. 1170 , 103 L.Ed.2d 228 (1989), and explained that this standard is appropriate where some, but not all, of a document has been produced.
discussed Cited as authority (rule) United States v. George W. Lowry, III
6th Cir. · 1992 · confidence medium
While the magistrate was not informed of the informant's probity, the magistrate was given reason to think the informant knew a good deal about what was going on at [the residence]. 36 Id. at 398-99 (quoting United States v. Strifler, 851 F.2d 1197, 1201 (9th Cir.1988), cert. denied, 489 U.S. 1032 (1989)). 37 There is no reason to believe that the magistrate judge in this case may have been seriously misled by affiant's failure to disclose information about the informant which was only of general impeachment value and had no direct bearing on the substance of the informant's information.
cited Cited as authority (rule) United States v. Sandoz
D. Or. · 1992 · confidence medium
United States v. Strifler, 851 F.2d 1197, 1201 (9th Cir.1988), cert. denied, 489 U.S. 1032 , 109 S.Ct. 1170 , 103 L.Ed.2d 228 (1989).
cited Cited as authority (rule) State v. Weide
Mo. Ct. App. · 1991 · confidence medium
United States v. Strifler, 851 F.2d 1197, 1200-1201 (9th Cir.1988), cert. denied, 489 U.S. 1032 , 109 S.Ct. 1170 , 103 L.Ed.2d 228 (1989).
cited Cited as authority (rule) The United States of America v. Dennis L. Martin
6th Cir. · 1991 · confidence medium
United States v. Strifler, 851 F.2d 1197, 1201 (9th Cir.1988), cert. denied, 489 U.S. 1032 , 109 S.Ct. 1170 , 103 L.Ed.2d 228 (1989).
cited Cited as authority (rule) United States v. Ronald Peter Anzalone
9th Cir. · 1989 · confidence medium
United States v. Strifler, 851 F.2d 1197, 1202 (9th Cir.1988), cert. denied, — U.S.-, 109 S.Ct. 1170 , 103 L.Ed.2d 228 (1989).
cited Cited "see" Sterling v. Weaver
9th Cir. · 2005 · signal: see · confidence high
See United States v. Strifler, 851 F.2d 1197, 1201 (9th Cir.1988).
discussed Cited "see" United States v. Herman Phillip Sheets, Jr.
9th Cir. · 1996 · signal: see · confidence high
See United States v. Strifler, 851 F.2d 1197, 1202 (9th Cir.1988), cert. denied, 489 U.S. 1032 (1989) (holding that where the district court reviews the material in camera, we review its determination for clear error).
discussed Cited "see" United States v. Furlong
D. Mont. · 1994 · signal: see · confidence high
See United States v. Strifler, 851 F.2d 1197, 1201 (9th Cir.1988) (magistrate would naturally have assumed that informant was not disinterested citizen), cert. denied, 489 U.S. 1032 , 109 S.Ct. 1170 , 103 L.Ed.2d 228 (1989).
UNITED STATES of America, Plaintiff-Appellee,
v.
Carla STRIFLER and Ronald Wayne Strifler, Also Known as Ronald Wayne Norris, Defendants-Appellants
87-1078, 87-1081.
Court of Appeals for the Ninth Circuit.
Jul 11, 1988.
851 F.2d 1197
Natman Schaye, Tucson, Ariz., for defendant-appellant Carla Strifler., Dave Gerson, Tucson, Ariz., for defendant-appellant Ronald Strifler., Gary C. Korn, Asst. U.S. Atty., Tucson, Ariz., for plaintiff-appellee.
Koelsch, Noonan, O'Scannlain.
Cited by 62 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 80%
Citer courts: Ninth Circuit (1)
NOONAN, Circuit Judge:

Ronald Strifler and Carla Strifler, husband and wife, appeal their convictions of attempting to manufacture methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1), and § 846 and conspiracy to manufacture and/or distribute methamphetamine in violation of the same statutes.

Their appeals raise two issues: the denial of their request for a Franks hearing regarding the affidavit on which the search warrant was based that led to their arrest and conviction; and the amount of Brady material given them by the district court from the probation file of a government witness.

FACTS

On June 16, 1986, Harold W. Davidson II filed a handwritten affidavit with a magistrate seeking a search warrant for the premises known as 22700 West Deal Road, Tucson, Arizona, occupied by a double wide mobile home, two sheds and a travel trailer, with a sign proclaiming, “All trespassers will be eaten.”

In his affidavit, Davidson identified himself as a special agent for the Drug Enforcement Agency, who had been so employed for over 15 years, had been the case agent on over 100 investigations and had obtained over 100 search warrants. He stated that he had been conducting an investigation of Franklin Huber Maxwell, Killane [sic] Jo Maxwell, and Halbert L. Fitzsimmons, Jr. since March 11, 1986 and had identified these persons as the purchasers of precursor chemicals and glass reaction vessels commonly used in manufacturing methamphetamine. The purchases had been made between March 11 and March 31, 1986.

Davidson went on to say that on June 16, 1986 a confidential informant had come to his office in Tucson and told him that on June 12 he had observed four persons at 22700 West Deal Road in the process of manufacturing amphetamine. The informant identified the four as Halbert Fitz-simmons, Rhonda Fitzsimmons, Carla Norris (Carla Strifler’s maiden name) and her husband Ron. According to the affidavit, the informant added that on two occasions between April 1 and June 12, 1986 he had joined these persons in attempting to make methamphetamine. The informant said that at the location were a five gallon boiling flask, a round bottom boiling flask, two kinds of bubble condensers, rubber tubing, various beakers, and a lockbox containing records from the amphetamine manufacturing. These items were some of the same items that'the Drug Enforcement Agency, through its ongoing investigation, had suspected were being used on the premises to manufacture methamphetamine.

On the basis of this affidavit, Raymond T. Terlizzi, United States Magistrate, issued the warrant. Execution of the warrant led to the discovery of laboratory apparatus and records that played a part in the Striflers’ convictions.

Agent Davidson did not disclose in his affidavit that “the confidential informant” was actually Frank Maxwell and his wife Kellene or Kelly Maxwell; that the Max-wells had learned that they were under investigation; that both had been guaranteed by the prosecutor that they would not be prosecuted if they provided information; that Kellene Maxwell had been paid for[*1200] their information; that Frank Maxwell had a long record of convictions for other drug offenses; and that both Maxwells had quarrelled with the Striflers and the Fitz-simmonses. [1]

Before the trial the defendants discovered a report by another Drug Enforcement Agent, Edward DiScenza, dated June 18, 1986 that related to the debriefing of the Maxwells on June 16. According to this report the Maxwells said that they had been present at three attempts at manufacturing drugs during the month of March 1986. The report did not refer to any attempts or observations by the Maxwells in April, May or June.

The defendants moved to suppress the evidence obtained by the search warrant on the ground that the affidavit in support of the warrant contained false and misleading information; the motion was denied without an evidentiary hearing. At the trial, Rellene Maxwell testified as to how Ron and Carla Strifler persuaded her and her husband to engage in a plan for making and distributing methamphetamine; how they bought equipment to do it; and how they had engaged in “cooks” on the property belonging to Frank Maxwell’s sister and brother-in-law, the Fitzsimmons. Halbert Fitzsimmons also testified to the cooks on his premises. Government agents testified to finding the equipment for making drugs on the premises and to finding formulas for manufacturing methamphetamine written in Ron and Carla Strifler’s handwriting. Frank Maxwell also testified to his involvement with the Striflers.

By way of impeachment the defense brought out an admission from Rellene Maxwell that the Maxwells had gone to the government because they knew they were under investigation and wanted to get immunity. She further acknowledged that she had been paid between $1,500 and $2,000 for her information. Frank Maxwell also testified that, when he first spoke with the agents, he obtained a promise of limited immunity for himself and his wife. On cross-examination he said that he could not remember how many felony convictions he had but that he had at least two; that he had used “almost every kind” of illegal drugs that exist; that he had started using heroin in 1974; that his probation had been revoked the previous year for using marijuana; and that he had gone to the DEA because he had been told that the DEA was looking for him in connection with the purchases of methamphetamine manufacturing equipment. His only testimony as to a cook in June was that when he went out to the property he “smelled a cook in progress” and saw his brother-in-law pouring out some chemicals.

ISSUES

The Striflers contend that the affidavit contained false statements and made reckless omissions of facts. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). In particular they say that the information bearing on the Max-wells’ reliability was omitted recklessly. They add that the statement that Ron and Carla were seen making amphetamine on June 12 was false because of Frank Maxwell’s testimony at the trial that he did not see the Striflers on June 12. The Striflers further contend that the statements in the affidavit about the informant participating in the manufacturing between April 1 and June 12 was false because Agent DiScen-za’s report shows that the informant participated only in March. If the affidavit were corrected to state the truth, the Striflers say, probable cause to justify the search would have been lacking because the information would have been stale.

The Striflers also contend that there was information in Frank Maxwell’s probation file which should have been released to them under the rule of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194,10 L.Ed.2d 215 (1963).

ANALYSIS

1. The Affidavit.

The Striflers were not entitled to a pre- or post-trial evidentiary hearing be[*1201] cause they failed to make the “substantial preliminary showing” that the asserted misstatements and omissions were material to the magistrate’s determination of probable cause. The omission of material bearing on the informants’ credibility was not material because the magistrate was provided sufficient circumstances to have a substantial basis for finding probable cause. Cf. United States v. Angulo-Lopez, 791 F.2d 1394, 1396 (9th Cir.1986).

Agent Davidson said nothing about the veracity of the source identified as a confidential informant. It would have to be a very naive magistrate who would suppose that a confidential informant would drop in off the street with such detailed evidence and not have an ulterior motive. The magistrate would naturally have assumed that the informant was not a disinterested citizen. While the magistrate was not informed of the informant’s probity, the magistrate was given reason to think the informant knew a good deal about what was going on at 22700 West Deal Road.

Accepting the defendants’ contention that DiScenza’s report was more accurate than Davidson’s affidavit and accepting Frank Maxwell’s trial testimony as more accurate than Davidson’s report of what Frank Maxwell told him, we have statements in the affidavit that need to be corrected. If Frank Maxwell’s trial testimony is believed, he only smelled a “cook” on June 12, 1986. If DiScenza’s report is accurate the Maxwells participated only in March.

With these corrections the affidavit still supports the finding of probable cause. That a person participated in making drugs throughout the month of March and then stopped would not make his information stale in June. It would be reasonable to assume that persons who bought equipment in March and were still at the same place in June would not have disposed of the equipment or the records of their criminal business. Cf. United States v. Landis, 726 F.2d 540, 542 (9th Cir.), cert. denied, 467 U.S. 1230, 104 S.Ct. 2688, 81 L.Ed.2d 882 (1984). As Maxwell had participated in “cooks” with the others it was not unreasonable for him to interpret the smell of chemicals at the same location as indicative that a “cook” was going on or was just over on June 12, 1986.

Even on the assumption that the defendants are correct and the assumedly inaccurate statements are rewritten, the magistrate had before him the affidavit of an experienced investigator indicating purchases of specific precursors by named individuals whose innocent use of them was controverted by an informant who knew these individuals had been doing “cooks” in March and who claimed to have smelled a “cook” a few days before he came to Davidson. The corrected affidavit would have supported the warrant. The alleged errors were not material. The trial court did not err in denying the motion for a Franks evidentiary hearing.

2. The Probation File

A defendant is entitled to material in a probation file that bears on the credibility of a significant witness in the case. See Brady v. Maryland, 373 U.S. at 87, 83 S.Ct. at 1196-97 (1963). The trial court should then review the file in camera and release to the defendant all information of this character. See Moore v. Kemp, 809 F.2d 702, 730 (11th Cir.); cert. denied, — U.S. -, 107 S.Ct. 2192, 95 L.Ed.2d 847 (1987). Judge Marquez followed this procedure here and released the information in the file that he found relevant. The Striflers object that he did not release enough Brady material but acknowledge that they cannot say what else should have been released because they did not and do not have access to the file.

We ask first -what is the standard for reviewing the trial court’s ruling as to what to release. The court’s ruling is unusual in the sense that, unlike most other rulings, the defendants do not have within their own control means to show whether the trial court may have erred. Only an appellate court, with access to the file, is in a position to say whether the trial court’s decision was correct. This characteristic of some Brady reviews makes it important for the trial court to indicate on the record what material was released after its in camera review. It is equally important for the appellant to indicate in the excerpt of record the information he or she received so that this court, comparing the file with the material received, can make its decision[*1202] as to whether all the Brady material was released.

The trial court deciding what is Brady material is not in the same position as a prosecutor responding to a request for Brady material. Cf. United States v. Lehman, 792 F.2d 899, 901 (9th Cir.), cert. denied, 479 U.S. 868, 107 S.Ct. 232, 93 L.Ed.2d 158 (1986). The ruling of the court is a ruling on evidence. The trial court must release what it finds relevant, material and probative as to the witnesses credibility. See Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972). It need not release evidence that is not material. Cf. United States v. Bagley, 473 U.S. 667, 682, 685, 105 S.Ct. 3375, 3383, 3385, 87 L.Ed.2d 481 (1985). Evidence that is merely cumulative is not material.

We adopt the rule that we will reverse for denial of Brady material from a probation file if, on review of the file, we find that the district court committed clear error in failing to release probative, relevant, material information. Frank Maxwell’s criminal record was in the file. It was, as another district judge had earlier observed, “a horrible record.” Normally, the criminal record of a witness is available to the prosecutor and, as it bears on the witness’s credibility, must be turned over to the defendant. The criminal record cannot be made unavailable by being made part of the probation file. Consequently, it was clearly erroneous for the trial court not to make available to the defense Frank Maxwell’s entire criminal record. In addition, the probation file contained material which would have permitted the defendants to cross-examine Frank Maxwell further on his and his wife’s motives for informing against the Striflers, particularly with regard to the alleged June 12 “cook.” The file contains, among other things, probation reports showing a tendency in Maxwell to “overcompensate” for actual or perceived problems; reports of the long-standing financial needs of the Maxwells; and reports of repeated instances of Frank Maxwell’s lying to authorities. This information would have provided a basis for impeaching Maxwell especially on the issue of whether he invented the existence of suspicious activities at the Fitzsimmons’ ranch on June 12, 1986.

As to Count IV of the indictment, Frank Maxwell was a significant witness. Count IV charged a conspiracy lasting until June 16. Only Frank Maxwell provided testimony showing that the conspiracy lasted to that date. Consequently, denying to the defense information bearing on Frank Maxwell’s credibility was not harmless. The Striflers’ conviction on Count IV must be reversed.

Abundant circumstantial evidence and the testimony of Halbert Fitzsimmons and Kellene Maxwell supported the Striflers’ convictions on the other crimes charged. There is not a reasonable probability that, had all the relevant material on Frank Maxwell been made available, the result of the trial on those counts would have been different. United States v. Bagley, 473 U.S. at 684, 105 S.Ct. at 3385.

AFFIRMED as to Counts I, II, and III. REVERSED as to Count IV.

1

. Before trial, the government appears to have been less than forthcoming in disclosing to the defense the incentives tendered the Maxwells.