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Case 1:20-cr-00330-PAE Document 549-1 Filed 12/17/21 Page 8 of 24 20 LB1TMAX1 1 did not have an alibi and suggested that a photo lineup was 2 unduly suggestive. 799 F.2d 593, (10th Cir. 1986). The court 5 stated that, if disclosed, "the defense could have 4 cross-examined the detectives about their decision to use the 5 photographs" that they did as well about their failure to 6 corroborate the other suspect's alibi. 7 And the defense cites another Brady violation in 8 Lindsey v. King where the Fifth Circuit found that a police 9 report was material under Brady because it showed key witnesses 10 to a murder had changed their story, which on cross-examination 11 would have meant the destruction of the witness's 12 identification and the discrediting in some degree of the 13 police methods employed in assembling the case against the 14 defendant. Lindsey v. King, 769 F.2d 1034, (5th Cir. 1985). 15 These two examples of focused cross-examination to 16 impeach a witness that testified to the defendant's guilt and 17 thereby throw the product of the government's investigation 18 into doubt are far afield from the specifics of what the 19 defense proposed here. In its brief, the defense seeks to 20 affirmatively -- and I will quote from their brief -- "call FB 2l case agents as witnesses" to ask who they talked to, what 22 documents they subpoenaed, and when. See, defense's response 23 at 40. But as the Second Circuit explained in Saldarriaga, the 24 government's use or non-use of certain investigative techniques 25 does not tend to show the defendant's innocence of the charges. SOUTHERN DISTRICT REPORTERS, P.C. (212%) 805-0220 DOJ-OGR-00008402