This document is a petition for writ of certiorari filed on behalf of Angela Dee Isley with the Supreme Court of the United States. It seeks review of a decision by the United States Court of Appeals for the Eleventh Circuit regarding the application of Brady v. Maryland. Specifically, the petition argues that the Eleventh Circuit misapplied Brady in two ways: 1) by finding no Brady violation where suppressed evidence was inadmissible but could have led to admissible evidence, and 2) by finding no violation due to the cost and burden of producing favorable evidence. The petition asks the Supreme Court to resolve conflicts on these Brady issues between the Eleventh Circuit and other federal circuits.

1. No. ___________________
______________________________________
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 2009
________________________________________
ANGELA DEE ISLEY
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
__________________________________________
On Petition for Writ of Certiorari
To the United States Court of Appeals
for the Eleventh Circuit
__________________________________________
PETITION FOR WRIT OF CERTIORARI
____________________________________________
ROBERT F. SCHROEDER
Counsel of Record
One Securities Centre
3490 Piedmont Road, N.E.
Suite 1050
Atlanta, Georgia 30305
(404) 842-0131
(404) 842-9750 (facsimile)

2. Counsel for Petitioner
2

3. QUESTIONS PRESENTED
1. Whether the United States Court of Appeals for the Eleventh Circuit
misapplied this Court’s Brady jurisprudence when it concluded that the
Government did not violate Brady where the suppressed evidence, which was
subsequently deemed to be irrelevant and inadmissible, was nevertheless likely to
lead to the discovery of admissible evidence? See Brady v. Maryland, 373 U.S. 83,
83 S. Ct. 1194 (1963); Wood v. Bartholomew, 516 U.S. 1, 116 S. Ct. 7 (1995),
2. Whether the lower tribunal misapplied this Court’s Brady jurisprudence
by concluding that although the suppressed evidence was relevant and material to
the defendant’s defenses, it was too costly and burdensome for the Government to
produce that evidence? See Brady, 373 U.S. at 83.
i

4. PARTIES TO THE PROCEEDINGS
The only parties to this proceeding are Petitioner, Angela Dee Isley, an
incarcerated individual, and Respondent, the United States of America.
RULE 29.6 DISCLOSURE
No corporations or corporate entities are involved in this proceeding.
ii

5. TABLE OF CONTENTS
Questions Presented...................................................................................................i
Parties to the Proceeding...........................................................................................ii
Rule 29.6 Disclosure.................................................................................................ii
Table of Authorities...................................................................................................v
Petition for a Writ of Certiorari to the United States Court of Appeals for the
Eleventh Circuit......................................................................................................1
Opinions Below.........................................................................................................1
Jurisdiction................................................................................................................2
Constitutional Provisions Involved...........................................................................3
Statement of the Case................................................................................................3
Reasons for Granting the Writ.................................................................................11
A. THE COURT SHOULD ISSUE A WRIT OF CERTIORARI TO RESOLVE
THE CONFLICT IN THE FEDERAL CIRCUITS AS TO WHETHER A
BRADY VIOLATION OCCURS WHEN THE GOVERNMENT SUPPRESSES
INADMISSIBLE EVIDENCE THAT IS LIKELY TO LEAD TO THE
DISCOVERY OF ADMISSIBLE EVIDENCE...................................................12
B. THE GOVERNMENT’S OBLIGATION UNDER BRADY IS NOT
EXCUSED BECAUSE THE PRODUCTION OF THE FAVORABLE
EVIDENCE IS COSTLY OR BURDENSOME..................................................22
Conclusion...............................................................................................................24
Appendix
United States v. Isley, 2010 WL 801736 (11th
Cir. March 10, 2010).............App. A.
iii

6. United States v. Isley, Case No. 1:05-CR-621-CAP, United States
District Court, Northern District of Georgia (Aug. 4, 2008).......................App. B.
United States v. Isley, Case No. 1:05-CR-621-CAP, United States
District Court, Northern District of Georgia (Jan. 14, 2008).......................App. C.
iv

7. TABLE OF AUTHORITIES
Cases
Banks v. Dretke,
540 U.S. 668, 124 S. Ct. 1256, 157 L. Ed. 2d 1166 (2004)...................................3
Bradley v. Nagle,
212 F.3d 559 (11th Cir. 2000)..............................................................................14
Brady v. Maryland,
373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)..................................passim
Coleman v. Calderon,
150 F.3d 1105 (9th Cir.) rev'd on other grounds, 525 U.S. 141, 119
S.Ct. 500 (1998).........................................................................14, 16
Ellsworth v. Warden,
333 F.3d 1 (1st Cir. 2003)..............................................................................12, 14
Felder v. Johnson,
180 F.3d 206 (5th
Cir.), cert. and reh. denied, 528 U.S. 1067, 120 S.
Ct. 630 (1999)............................................................................15, 16
Hoke v. Netherland,
92 F.3d 1350 (4th Cir.), cert. denied, 519 U.S. 1048, 117 S. Ct. 630
(1996).........................................................................................13, 15
Kyles v. Whitley,
514 U.S. 419, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995)...............................3, 20
Madsen v. Dormire,
137 F.3d 602 (8th Cir.), cert. denied, 525 U.S. 908, 119 S. Ct. 247,
142 L. Ed. 2d 203 (1998)...........................................................14, 15
Mooney v. Holohan,
294 U.S. 103, 55 S. Ct. 340, 79 L. Ed. 791 (1935)..............................................21
v

8. Spaziano v. Singletary,
36 F.3d 1028 (11th Cir. 1994)..............................................................................14
Strickler v. Greene,
527 U.S. 263, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999).....................................3
United States v. Bagley,
473 U.S. 667, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985).............................3, 4, 20
United States v. Countryside Farms, Inc.,
428 F. Supp. 1150 (D. Utah 1977).......................................................................22
United States v. Derr,
990 F.2d 1330 (D.C. Cir. 1993)...........................................................................13
United States v. Gil,
297 F.3d 93 (2d Cir. 2002)...................................................................................14
United States v. Johnson,
2007 U.S. Dist. LEXIS 41392 (D. Kan. 2007).....................................................22
United States v. Montalvo,
20 F. Supp. 2d 270 (D.P.R. 1998)........................................................................15
United States v. Phillip,
948 F.2d 241 (6th Cir. 1991), cert. denied, 504 U.S. 930, 112 S. Ct.
1994 (1992)......................................................................................14
United States v. Sipe,
388 F.3d 471 (5th Cir. 2004)................................................................................14
United States v. Steffen,
641 F.2d 591 (8th Cir. 1981)................................................................................22
Wood v. Bartholomew,
516 U.S. 1, 116 S. Ct. 7, 133 L. Ed. 2d 1 (1995)....................................i, 2, 15, 18
Wright v. Hopper,
169 F.3d 695 (11th Cir. 1999)..................................................................14, 15, 19
vi

9. Youngblood v. W. Virginia,
547 U.S. 867, 126 S. Ct. 2188, 165 L. Ed. 2d 269 (2006).................................2, 3
Constitution and Statutes
United States Const., Amend. V ...............................................................................3
18 U.S.C.A. § 1341 ..................................................................................................5
18 U.S.C.A. § 1346 ..................................................................................................5
18 U.S.C.A. § 1347 ..................................................................................................5
18 U.S.C.A. § 1957 ..................................................................................................5
18 U.S.C.A. § 3231 ..................................................................................................2
28 U.S.C.A. § 1254 ..................................................................................................2
28 U.S.C.A. § 1291 ..................................................................................................2
Rules
Sup. Ct. R. 10(a)........................................................................................................3
Sup. Ct. R. 13.1.........................................................................................................2
Sup. Ct. R. 29.2.........................................................................................................2
vii

10. IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 2009
_______________________________________
ANGELA DEE ISLEY,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
_________________________________________
PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
__________________________________________
Petitioner respectfully requests that a writ of certiorari be issued to review
the judgment of the United States Court of Appeals for the Eleventh Circuit in this
case.
OPINIONS BELOW
United States v. Isley, 2010 WL 801736 (11th
Cir. March 10, 2010). (App.
A.)
United States v. Isley, Case No. 1:05-CR-621-CAP, United States District
Court, Northern District of Georgia (Aug. 4, 2008). (App. B.)
1

11. United States v. Isley, Case No. 1:05-CR-621-CAP, United States District
Court, Northern District of Georgia (Jan. 14, 2008). (App. C.)
JURISDICTION
The United States District Court for the Northern District of Georgia had
jurisdiction over this case pursuant to 18 U.S.C. § 3231. The United States Court
of Appeals for the Eleventh Circuit (the “Eleventh Circuit”) had jurisdiction
pursuant to 28 U.S.C. § 1291.
The Eleventh Circuit rendered its decision on March 10, 2010. (App. A.) In
doing so, the court of appeals misapplied this Court’s Brady jurisprudence and
created a conflict with other circuits. See Brady v. Maryland, 373 U.S. 83, 83 S.
Ct. 1194 (1963) and the conflict cases discussed below. The jurisdiction of this
Court is invoked pursuant to 28 U.S.C. § 1254(1). Petitioner, who is
contemporaneously filing a motion for leave to proceed in forma pauperis, is
timely filing this Petition for a Writ of Certiorari by United States Mail on or
before June 8, 2010.1
See Sup. Ct. R. 13.1 & 29.2.
This Court has exercised its discretion to review decisions that misapplied
the Court’s Brady jurisprudence. See Wood v. Bartholomew, 516 U.S. 1, 116 S.
Ct. 7 (1995). It has also exercised its discretion to review decisions in an effort to
clarify Brady. See, e.g., Youngblood v. West Virginia, 547 U.S. 867, 126 S. Ct.
1
Petitioner did not file a petition for rehearing and/or petition for rehearing en
banc below.
2

12. 2188 (2006); Banks v. Dretke, 540 U.S. 668, 124 S. Ct. 1256 (2003); Strickler v.
Greene, 527 U.S. 263, 119 S. Ct. 1936 (1999); Kyles v. Whitley, 514 U.S. 419, 115
S. Ct. 1555 (1995); United States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375 (1985).
The willingness of the Court to review decisions implicating Brady is
understandable because those decisions directly affect defendants’ due process
rights as guaranteed by the United States Constitution. Petitioner’s Brady rights
should not depend upon the federal circuit in which she finds herself. See S. Ct. R.
10(a). Consequently, a writ of certiorari is warranted in this case.
CONSTITUTIONAL PROVISIONS INVOLVED
The Fifth Amendment to the United States Constitution provides:
No person shall be held to answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment of a Grand Jury, except
in cases arising in the land or naval forces, or in the Militia, when in
actual service in time of War or public danger; nor shall any person be
subject for the same offense to be twice put in jeopardy of life or limb;
nor shall be compelled in any criminal case to be a witness against
himself, nor be deprived of life, liberty, or property, without due
process of law, nor shall private property be taken for public use,
without just compensation.
STATEMENT OF THE CASE
Petitioner, Angela Dee Isley (“Isley”), worked for a durable medical
equipment (“DME”) supply company called Orthoscript, Inc. (App. A at 2.)
Orthoscript had hired Isley to manage its billing operations, which included the
supervision and instruction of other employees who prepared and submitted claims
3

13. for payment to insurance companies and Medicare. (App. A at 2.) Under the
Medicare program, Orthoscript (and other DME suppliers) submitted claims for
reimbursement to a Medicare contractor known as the DME Regional Carrier
(“DMERC”). (Id.) Orthoscript’s DMERC was in Region C, the southeast region,
and it processed and adjudicated Medicare claims for Orthoscript and other DME
suppliers in that region. (See App. A at 2-3.)
The Medicare program uses a coding system called the Healthcare Common
Procedure Coding System (“HCPCS”), under which DME items, like wrist splints
and walking boots, are assigned product codes. (See App. A at 3.) Those product
codes are to be used to bill Medicare for the specific products actually provided to
the Medicare patient. (App. A at 8-9.)
The United States of America (the “Government”) first indicted Isley on
thirty-one counts of Medicare fraud. (App. A at 3.) Specifically, the Government
charged Isley with knowingly and willfully assigning incorrect product codes to
certain orthopedic supplies in order to generate higher payments to Orthoscript
from Medicare than were authorized. (Id.) That original indictment involved the
product codes L3670, L3800, L3907, L2114, L2116, and L1960, which pertained
to wrist splints and walking boots. (Dkt. 1)
Subsequently, the Government moved to dismiss the counts of the original
indictment related to L3670, L2114, and L2116. (Dkt. 132.) Isley opposed that
4

14. motion because the evidence related to L2114 and L2116 was favorable to her and
the dismissal of those counts would materially alter the indictment. (Dkt. 134.)
Thereafter, the Government filed a superseding indictment (the “Indictment”)
charging Isley with fourteen counts of healthcare fraud under 18 U.S.C. § 1347,
thirty-six counts of mail fraud under 18 U.S.C. §§ 1341 and 1346, and three counts
of money laundering under 18 U.S.C. § 1957. (Dkt. 146.)
The Government alleged that between 2001 and 2003, Isley caused her
employer, Orthoscript, to submit claims to Medicare using incorrect product codes.
(Dkt. 146.) The Government asserted that even though prefabricated products
were provided to the patients, Isley billed Medicare using the custom-fabricated
codes, L3800, L3907, and L1960, thereby causing Orthoscript to be reimbursed at
higher rates than the correct, prefabricated codes would allow. (Dkt. 146.) The
Government also alleged that Isley used the United States mail to defraud
Orthoscript by using Orthoscript’s money to pay for her and her partner’s personal
credit card charges. (Dkt. 146.) Finally, the Government alleged that on three
occasions, Isley engaged in money laundering transactions related to the funds
criminally derived from the healthcare fraud. (Dkt. 146.)
Prior to trial and pursuant to Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194
(1963), Isley requested the Government to produce, for the relevant time period, all
medical necessity approvals of claims submitted to DMERCs in the various
5

15. regions of the United States related to the products and codes at issue in the
original indictment. (See App. A at 4-8.) At times, a DMERC would subject a
benefits claim to a medical necessity review, which required the supplier to
provide detailed information about the claim, including the manufacturer’s picture
and description of the product provided to the patient, the manufacturer’s invoice,
and the physician’s medical necessity letter and treatment notes. (App. A at 4.)
The DMERC’s approval of a claim after a medical necessity review is called a
“MNA” (for Medical Necessity Approval). (Id.) Isley argued that certain MNAs
from all the regional DMERCs were exculpatory and material because they
showed that her coding choices for the relevant products were objectively correct
or otherwise demonstrated that her choices were made by mistake and not with
criminal intent. (See App. A at 4-6.) Indeed, Isley argued that Medicare’s product
coding system was vague, ambiguous, and confusing. (Dkt. 34, 35.) Isley asserted
that DMERC’s all over the country were issuing MNAs for claims submitted by
other DME suppliers using the same product codes for the same products during
the same time frame as Orthoscript. (Id.) Indeed, the material Isley sought would
have shown that other DMERC’s were approving numerous claims submitted with
the exact same product codes that Isley used after a medical necessity review that
revealed that the coded products involved were arguably prefabricated, not custom.
6

16. The magistrate judge concluded that the MNAs were not exculpatory and,
therefore, the Government had no obligation to produce them. (Dkt. 88.) At first,
the district court affirmed the magistrate’s conclusions. (Dkt. 103.)
Isley continued to try to obtain the MNAs for the codes at issue in the
original indictment through Freedom of Information Act (“FOIA”) requests and
Rule 17(c) subpoenas. (See Dkt. 135, 167.) In the FOIA requests and subpoenas,
Isley expanded her request from just Region C’s MNAs to include the MNAs from
all regions of the United States, Regions A, B, C, and D. (Dkt. 135, 167.) The
Government opposed Isley’s efforts by filing a motion to quash the subpoenas and
a motion in limine related to the other regions’ MNAs. (Dkt. 135, 167.) Isley
responded that the evidence was material to her defense, exculpatory, and could
also be used for impeachment purposes. (Dkt. 141, 188, 189.) Isley further argued
that the MNAs she sought: 1) demonstrate that her coding choices were objectively
correct or the result of innocent mistake, not criminal intent; 2) were necessary for
impeachment; and 3) would lead to the discovery of other material witnesses and
evidence, including DMERC reviewers and DME suppliers who interpreted the
coding requirements the same way Isley did. (See Dkt. 34, 212, 218.)
The district court denied the Government’s motion in limine. (Dkt. 207.)
The court acknowledged that Isley sought the MNAs granted to other DME
suppliers in other regions as direct evidence of mistake or lack of criminal intent as
7

17. well as for impeachment purposes. (Dkt. 207.) The court also decided it would
require the Government to produce the Region C MNAs for the codes and products
at issue at the relevant time. (Dkt. 210; see also App. A at 7-8.) The district court
stated that it would review the Region C information to determine whether it was
exculpatory. (App. A at 7-8.) If it determined that it was, the court would then
decide whether to require the Government to produce the information from the
other regions. (Id.)
After the Government produced the Region C MNAs, the district court
found the Region C MNAs to be exculpatory. (App. C at 2.) The district court
also ruled that while the MNAs from the other regions, Regions A, B, and D, may
be “relevant to some of the defendant’s possible defenses,” the burden and cost of
requiring the Government to produce the other regions’ MNAs (collectively, the
“Other MNAs”) outweighed Isley’s need for such cumulative information. (See
App. A at 7-8 & at 18 n.17; see also App. C at 2.) Nevertheless, the court advised
Isley that she could still seek the Other MNAs through Rule 17(c) subpoenas.
(App. C at 2-3.) Also, because the court found the other regions’ MNAs to be
material to Isley’s defenses, the court ordered that Isley’s Rule 17(c) subpoenas
could not be challenged on relevancy grounds. (Id.)
When Isley continued to try to obtain the Other MNAs through Rule 17(c)
subpoenas, the other regions filed motions to quash. (Dkt. 226, 227, 228.) In their
8

18. papers supporting the motions to quash, Region A reported that it had
approximately 2000 MNAs, Region B stated that it had 812 MNAs, and Region D
said that it had between 1500 and 2500 MNAs.2
(See App. A at 13 (footnote
omitted)). The district court granted the motions to quash on the first day of trial.
(Tr:1:54-55.) Nevertheless, the district court allowed Isley to testify at trial about
her efforts to obtain the Other MNAs and their reported number. (Tr:8:1398-
1403.) Although Isley was able to mention the numbers of the Other MNAs at
trial, the Government did not produce, and was never required to produce, the
Other MNAs themselves. (See App. A at 7-8.)
On April 28, 2008, the jury rendered its guilty verdict as to all counts, except
count twenty, which the Government had dismissed. (Dkt. 265.)
Isley filed a timely Motion for New Trial in which she argued that the
Government violated Brady by not producing the Other MNAs. (Dkt. 267.) While
that motion was pending, the court sentenced Isley to seventy months in prison and
three years of supervised release. (Dkt. 281.) The court also imposed a fine of
$125,000, ordered restitution of $703,814.82, and charged Isley with a special
assessment of $5,200. (Dkt. 281.)
2
Isley does not dispute that these numbers included MNAs for products that were
at issue in the original indictment, but were no longer at issue in the Indictment
under which she was to be tried. (See App. A at 13 & n.15.)
9

19. The district court denied Isley’s new trial motion on August 4, 2008. (Dkt.
280.) Isley timely filed her Notice of Appeal on August 8, 2008. (Dkt. 282.) The
Eleventh Circuit affirmed Isley’s conviction. (App. A.)
In affirming Isley’s conviction, the Eleventh Circuit concluded that the
district court did not abuse its discretion by not requiring the production of the
Other MNAs because Isley did not show that the outcome of her trial would have
been different. (App. A at 16.) According to the Eleventh Circuit, the Other
MNAs were not material “because the evidence failed to establish that she relied
upon any MNA in making the coding decisions charged in the [I]ndictment.”
(App. A at 16-17.) The Eleventh Circuit also said:
Isley believed that the other MNAs would impeach the Government
witnesses by demonstrating confusion and ambiguity in the
application of the billing codes to the subject products. Even if she
could show confusion in the industry, Isley did not demonstrate that
any such confusion affected her decisions because she did not rely
upon the coding decisions in the industry.
(App. A at 17.) Having determined that the Other MNAs were not material
because Isley did not rely upon them, the Eleventh Circuit affirmed the district
court’s denial of Isley’s Motion for New Trial. (App. A at 18.)
The Eleventh Circuit also affirmed the district court’s denial of Isley’s
Motion for New Trial because it agreed with the district court’s conclusion that the
Other MNAs were inadmissible because they would have been nothing more than
cumulative impeachment evidence. (App. A at 17-18.) In doing so, the Eleventh
10

20. Circuit rejected Isley’s argument that even if the Other MNAs were inadmissible,
they were still material because they were likely to lead to the discovery of
admissible evidence. (Id.) The Eleventh Circuit did not specifically address the
district court’s conclusion that even though the Other MNA’s were relevant to
Isley’s defenses, it would be too burdensome and costly for the Government to
produce them. (App. A.)
REASONS FOR GRANTING THE WRIT
A writ of certiorari is warranted in this case because a conflict exists among
the Circuit Courts of Appeals as to whether Brady requires the requested, favorable
evidence to be admissible before it can be found to be material, where that
inadmissible evidence is likely to lead to the discovery of admissible evidence.
The majority of Circuits have answered that question in the negative; they require
the Government to produce even inadmissible evidence where that evidence is
likely to lead to the discovery of admissible evidence. Because that conflict is now
ripe for resolution, this Court should issue a writ of certiorari to resolve the conflict
in favor of the majority and hold that under Brady, the Government must produce
any requested, exculpatory evidence, admissible or not, where that evidence is
likely to lead to the discovery of admissible evidence.
This Court should also issue a writ of certiorari in this case to make it clear
that the Government’s production obligation under Brady is absolute and that the
11

21. cost and burden of producing Brady material is not an excuse for its suppression by
the Government. Because the district court found the Other MNAs to be relevant
to Isley’s defenses, that should have ended the inquiry; the Government should
have been required to produce them. By excusing the Government from producing
the Other MNAs because of the cost and burden – a cost and burden of the
Government’s own making – the district court, as affirmed by the Eleventh Circuit,
has imposed the very good faith analysis upon the Government’s production
obligation that this Court rejected in Brady. Because this result is contrary to the
due process concepts expressed by Brady and its progeny, a writ of certiorari
should issue in this case.
A. THE COURT SHOULD ISSUE A WRIT OF CERTIORARI TO RESOLVE
THE CONFLICT IN THE FEDERAL CIRCUITS AS TO WHETHER A BRADY
VIOLATION OCCURS WHEN THE GOVERNMENT SUPPRESSES
INADMISSIBLE EVIDENCE THAT IS LIKELY TO LEAD TO THE
DISCOVERY OF ADMISSIBLE EVIDENCE
The Circuits are split as to whether the Government has a duty to produce
exculpatory information that is, in and of itself, inadmissible if that inadmissible
evidence is likely to lead to the discovery of admissible evidence. See Ellsworth v.
Warden, 333 F. 3d 1, 5 (1st
Cir. 2003) (describing the split among the Circuits).
This Court should resolve this conflict and conclude that the Government has a
duty under Brady to produce information, even if it might ultimately be determined
12

22. to be inadmissible, so long as that information is likely to lead to the discovery of
admissible evidence.
In this case, the Eleventh Circuit concluded that the Government was not
required to produce the Other MNAs because they were inadmissible and,
therefore, not material. In doing so, the Eleventh Circuit rejected Isley’s argument
that under Brady, the Government must produce even inadmissible evidence where
that evidence is likely to lead to the discovery of admissible evidence. The
Eleventh Circuit’s rejection of Isley’s argument in this regard is consistent with
decisions by the Fourth and D.C. Circuits, which concluded that inadmissible
evidence is immaterial as a matter of law for Brady purposes. See Hoke v.
Netherland, 92 F.3d 1350, 1356 n.3 (4th
Cir.) (ruling that inadmissible evidence is,
as a matter of law, “immaterial” for Brady purposes), cert. denied, 519 U.S. 1048,
117 S. Ct. 630 (U.S. 1996); U.S. v. Derr, 990 F.2d 1330, 1335-36 (D.C. Cir. 1993)
(concluding that because the suppressed information would not have been
admissible, its suppression was not a Brady violation).
In direct conflict, the First, Second, Fifth, Sixth, Eighth, and Ninth Circuits
have stated that the Government has a duty to produce exculpatory information
that is, in and of itself, inadmissible, so long as that evidence is likely to lead to the
discovery of admissible evidence.3
See United States v. Sipe, 388 F.3d 471, 485
3
Other panels of the Eleventh Circuit have also stated that the Government is
obligated under Brady to produce inadmissible evidence that is likely to lead to the
13

23. (5th
Cir. 2004) (concluding that inadmissible evidence can still be material under
Brady if it would lead to the discovery of admissible evidence); Ellsworth v.
Warden, 333 F.3d 1, 5 (1st
Cir. 2003) (concluding that the withholding of
inadmissible exculpatory evidence is a Brady violation where that withheld
evidence would have, or could have, led to the discovery of material admissible
evidence); United States v. Gil, 297 F.3d 93, 104 (2d Cir. 2002) (concluding that
inadmissible evidence may be Brady material if it could lead to admissible
evidence); Coleman v. Calderon, 150 F.3d 1105, 1116-17 (9th
Cir.) (“To be
material [under Brady], evidence must be admissible or must lead to admissible
evidence.”), rev’d on other grounds, 525 U.S. 141, 119 S. Ct. 500 (1998); United
States v. Phillip, 948 F.2d 241, 249-50 (6th
Cir. 1991) (noting that inadmissible
evidence may be Brady material if it would lead to the discovery of admissible
evidence), cert. denied, 504 U.S. 930, 112 S. Ct. 1994 (1992); see also Madsen v.
Dormire, 137 F.3d 602, 604 (8th Cir.) (noting that inadmissible evidence is not
evidence at all, but then asking whether its link to admissible evidence is more than
mere speculation), cert. denied, 525 U.S. 908, 119 S. Ct. 247 (1998).
discovery of admissible evidence. See e.g., Bradley v. Nagle, 212 F.3d 559, 567
(11th
Cir. 2000) (“A reasonable probability of a different result is possible only if
the suppressed information is itself admissible evidence or would have led to
admissible evidence.” (citing Spaziano v. Singletary, 36 F.3d 1028, 1044 (11th
Cir.
1994)), cert. denied, 531 U.S. 1128, 121 S. Ct. 886 (2001); Wright v. Hopper, 169
F.3d 695, 703 (11th
Cir. 1999) (“Inadmissible evidence may be material if the
evidence would have led to admissible evidence.”).
14

24. This Court’s decision in Wood v. Bartholomew, 516 U.S. 1, 116 S. Ct. 7
(1995) does not resolve this conflict. As the Fifth Circuit noted in Felder v.
Johnson, how to deal with Brady claims related to inadmissible evidence is a
matter of some confusion in the federal courts. 180 F.3d 206, 212 (5th
Cir.), cert.
and reh. denied, 528 U.S. 1067, 120 S. Ct. 630 (1999). The Fifth Circuit stated:
In Wood v. Barhtolomew, the Supreme Court did not declare squarely
whether inadmissible information could be material evidence under
Brady, even though the circuit courts had already developed various
approaches to the question. The Court first noted that polygraph
results, being inadmissible, were “not ‘evidence’ at all” and “could
have no direct effect on the outcome of trial.” 516 U.S. at 6, 116 S.Ct.
at 10. It proceeded, however, to discuss the merits of the Ninth
Circuit’s attempt to “get around this problem,” and concluded that
“mere speculation” about whether the information could have led
defense counsel to “additional evidence that could have been utilized”
did not meet “the standards that we have established.” Id.
Reactions to Wood have been as varied as the pre-Wood
jurisprudence. Some courts read Wood to mean inadmissible
information cannot be material under Brady. See Hoke v. Netherland,
92 F.3d 1350, 1356 n. 3 (4th
Cir. 1996) (inadmissible statements are
immaterial “as a matter of law”); United States v. Montalvo, 20 F.
Supp.2d 270, 277 (D. P.R. 1998). One Circuit has concluded that
Wood did not affect its practice of allowing inadmissible evidence to
be material if it “would have led to admissible evidence.” See Wright
v. Hopper, 169 F.3d 695, 703 & n. 1 (11th
Cir. 1999). Another has
followed Wood’s methodology, noting inadmissible evidence is “not
‘evidence’ at all,” and then asking whether a link to admissible
evidence is based on more than “mere speculation.” See Madsen v.
Dormire, 137 F. 3d 602, 604 (8th
Cir.), cert. denied, 525 U.S. 908, 119
S. Ct. 247, 142 L.Ed.2d 203 (1998). Still another has done the same
as the Fifth Circuit and hewed to its pre-Wood practice without
discussing Wood’s potential relevance. See Coleman v. Calderon, 150
F.3d 1105, 1116-17 (9th Cir.), rev’d on other grounds, 525 U.S. 141,
119 S. Ct. 500, 142 L.Ed.2d 521 (1998) (per curiam).
15

25. Felder, 180 F.3d at 212 n.7. This post-Wood confusion, which has now ripened
into a true Circuit conflict, should be resolved so that defendants’ due process
rights and the Government’s Brady-related obligations are clear with respect to the
production of exculpatory evidence that may itself be inadmissible, but that would
lead to the discovery of admissible, material evidence.
The need for that resolution is all the more important in this case. Even if
the Other MNAs were inadmissible as cumulative impeachment evidence, which
Isley denies, they would certainly have led to the discovery of other material
witnesses, including but not limited to medical necessity reviewers and DME
suppliers from the other regions that used or approved the same codes for the same
products for which Isley was being prosecuted. There is nothing speculative about
this fact. In addition, there is no doubt that those witnesses would have had to
testify at trial that they either used or approved the same codes for the same
products during the same time frame as Isley. It is also likely, and not speculative,
that the Other MNAs and the witnesses to which they led would have permitted the
defendant to conduct other discovery that may have led to the discovery of
communications between the medical necessity reviewers (the Government’s
agents) and DME suppliers regarding the propriety of using those codes for those
products. Indeed, there was evidence of those types of communications related to
the Orthoscript MNAs. They may even have led to express statements from those
16

26. reviewers that the DME suppliers were authorized to use those codes for those
products at that time – even though the true nature of those products was revealed
in the medical necessity information submitted to the DMERC. Thus, it is not
mere speculation that the production of the Other MNAs would have led to the
discovery of other admissible, relevant evidence. Indeed, the district court ruled
that the Other MNAs were relevant to Isley’s defenses. (App. C.) Consequently,
the Government’s failure to produce the Other MNAs upon Isley’s request for
them violated Isley’s due process rights. As a result, a writ of certiorari is
appropriate in this case.
A writ of certiorari is also warranted because the Eleventh Circuit’s
threshold conclusion that the Other MNAs were not material under Brady because
Isley did not rely upon them is incorrect.4
Reliance is not an element of a Brady
violation, nor should it be. Likewise, reliance is not required to show the
materiality of the information the Government suppressed. Indeed, in Brady, the
defendant did not even learn about the suppressed statement by a third party
admitting guilt until after he was tried, convicted, sentenced, and his conviction
had been affirmed on appeal. 373 U.S. at 84. Thus, the defendant need not even
4
At this juncture, Isley does not quarrel with the Eleventh Circuit’s conclusion that
the evidence showed she did not rely upon any particular MNA in making her
coding decisions; she simply disputes that she had to have relied upon the Other
MNAs before the Government was required to produce them under Brady.
17

27. be aware of the suppressed evidence, much less rely upon it, before a Brady
violation can be found. See id.
Here, it is undisputed that the Government (through the other region’s
DMERCs) had untold numbers of MNAs in its possession pertaining to the very
codes at issue in the Indictment. (See App. A at 13 & n.15.) Region A reported
that it had 2000 MNAs, Region B reported that it had 812 MNAs, and Region D
reported that it had between 1500 and 2000 MNAs. (See id. at 13.) Even if some
of the Other MNAs pertained to codes other than those charged in the Indictment,
it cannot be disputed that the other Regions represented that they had a significant
number of MNAs specifically related to the codes and products for which Isley
was to be tried.
To the extent the other Regions possessed MNAs related to the very codes
charged in the Indictment, it is undisputed that those MNAs were favorable and
exculpatory in that they would provide at least some direct evidence that Isley’s
coding choices were either correct, objectively reasonable, or the result of a
reasonable mistake – the very same mistake made by other DME suppliers and
professional medical necessity reviewers in the other regions. The district court
found this to be the case. (App. C.) And that finding is true whether Isley relied
upon the Other MNAs or not.5
Also, because reliance is not a requirement under
5
Even the district court recognized that Isley’s defenses were not all dependent
upon reliance. (See Tr:10:1762; Dkt. 245.) One of the instructions the court gave
18

28. Brady, the Other MNAs, which would have led to the discovery of other
admissible evidence, were material whether Isley relied upon them or not.
The Government’s own actions demonstrate just how material the Other
MNAs actually were. Pretrial, the Government dismissed the L2114 and L2116-
related charges from the original indictment. (Compare Dkt. 1 with Dkt. 146.)
The Government dropped those charges because the majority of Region C MNAs
that had been produced by that date pertained to those two codes, L2114 and
L2116. (Dkt. 212 at 18-19.) Thus, the Government appears to have been
concerned that the L2114 and L2116-related MNAs would undermine its
prosecution of the original indictment and produce acquittal at least as to those two
codes. It also appears to have been concerned that an acquittal as to those codes
might create reasonable doubt in the juror’s minds as to the other codes charged.
Given the Government’s own reaction to the Region C MNAs, a reasonable
probability exists that the jury would have viewed the Other MNAs related to the
codes charged in the Indictment the same way the Government viewed the L2114
to the jury specifically acknowledged that the Government had the burden of
proving, beyond a reasonable doubt, that Isley’s statements or claims “were not a
reasonable interpretation of any applicable codes, rules or regulations.” (Id.) In
accordance with that instruction, the Other MNAs would have shown that the
DMERC’s and DME suppliers throughout the United States interpreted and
applied the same codes for the same products during the same time frame in the
exact same manner as Isley. Therefore, the jury could have concluded that Isley’s
interpretation of the product codes vis a vis the products at issue was objectively
reasonable. The Other MNAs would establish this fact whether Isley relied upon
them or not.
19

29. and L2116 MNAs from Region C. This is true whether Isley relied upon any of
the MNAs in making her coding choices or not. Thus, the Eleventh Circuit’s
threshold conclusion that the Other MNAs were not material because Isley did not
rely upon them was in error. Indeed, had the Other MNAs been produced, they
would have put the whole case in such a different light as to undermine the
confidence in the verdict. See Kyles, 514 U.S. at 434 (citing United States v.
Bagley, 473 U.S. 667, 668, 105 S. Ct. 3375 (1985)). This is particularly true when
the Other MNAs are considered in light of the other admissible evidence to which
the Other MNAs would have led.
Moreover, by requiring a defendant to rely upon the suppressed-yet-
favorable evidence before a Brady violation can be found, the Eleventh Circuit
weakened the Government’s production obligation under Brady thereby eroding
the due process rights of defendants under the United States Constitution. See
Brady, 373 U.S. at 87 (holding that suppression by the prosecutor of evidence
favorable to an accused upon request violates the Due Process Clause where the
evidence is material either to guilt or punishment, irrespective of the good or bad
faith of the prosecutor); see also United States v. Bagley, 473 U.S. 667, 676, 105 S.
Ct. 3375 (1985) (extending Brady to impeachment evidence). Therefore, this
Court should issue a writ of certiorari to the Eleventh Circuit to avoid the improper
erosion of defendants’ due process rights under the United States Constitution.
20

30. Indeed, Brady’s ultimate goal is to ensure that the defendant has full access
to information that may bear upon her guilt or punishment. According to this
Court:
The principle of Mooney v. Holohan6
is not punishment of society for
misdeeds of a prosecutor but avoidance of an unfair trial for the
accused. Society wins not only when the guilty are convicted but
when criminal trials are fair; our system of the administration of
justice suffers when any accused is treated unfairly. An inscription on
the walls of the Department of Justice states the proposition candidly
for the federal domain: “The United States wins its point whenever
justice is done its citizens in the courts.” A prosecution that withholds
evidence on demand of an accused which, if made available, would
tend to exculpate him or reduce the penalty helps shape a trial that
bears heavily on the defendant. That casts the prosecutor in the role
of an architect of a proceeding that does not comport with standards of
justice, even though, as in the present case, his action is not “the result
of guile,” to use the words of the Court of Appeals.
Id. at 87-88 (footnote and citation omitted). In this case, by not producing the
Other MNAs upon Isley’s request, the prosecutor became an architect of a
proceeding that does not comport with the standards of justice this Court has
expressed. This is because, even if we accept the Eleventh Circuit’s conclusion
that they were inadmissible, the Other MNAs were likely to have led to the
discovery of other evidence that would tend to exculpate Isley or may have
reduced Isley’s penalty to the extent the jury may have concluded that at least as to
some of the codes charged in the Indictment, the codes were vague or ambiguous
in relation to the products at issue. Because a Circuit conflict exists as to this
6
294 U.S. 103, 55 S. Ct. 340, 79 L.Ed. 791 (1935).
21

31. issue, however, this Court should issue a writ of certiorari to resolve the first
question presented.
B. THE GOVERNMENT’S OBLIGATION UNDER BRADY IS NOT EXCUSED
BECAUSE THE PRODUCTION OF THE FAVORABLE EVIDENCE IS
COSTLY OR BURDENSOME
This Court should also issue a writ of certiorari to answer the second
question presented. In Brady, this Court held that “the suppression by the
prosecution of evidence favorable to an accused upon request violates due process
where the evidence is material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution.” 373 U.S. at 87, 83 S. Ct. at 1196-97.
The Government’s burden under Brady is absolute. United States v. Johnson, 2007
U.S. Dist. LEXIS 41392, *17 (D. Kan. 2007). The fact that it may be burdensome
to produce Brady evidence is no excuse; it must be supplied. United States v.
Countryside Farms, Inc., 428 F. Supp. 1150, 1154 (D. Utah 1977). Consequently,
in deciding what evidence should be produced, the prosecution must resolve all
doubts in the defendants’ favor. Id.; see also United States v. Steffen, 641 F.2d
591, 594 (8th
Cir. 1981).
To allow a prosecutor to decide not to produce favorable, material evidence
merely because it would be too expensive or too burdensome to produce would be
to impose a good faith requirement on Brady that this Court expressly rejected.
See Brady, 373 U.S. at 87. The prosecutor may believe in good faith that the
22

32. production would be too costly or burdensome, but that does not excuse the
suppression of evidence under Brady. Rather, under those circumstances, the
Government must choose between prosecution and production.7
This is
particularly true where, as here, the district court expressly found the Region C
materials to be exculpatory and concluded that the Other MNAs were relevant to
Isley’s defenses. (App. C.) Therefore, this Court should issue a writ of certiorari
to explain that the Government is not excused from producing Brady material
merely because it is too costly or burdensome.
7
Although Isley acknowledges that there may be a situation where the cost or
burden of production may substantially outweigh the benefit of that production,
this case was far from that point. Even if it would have taken several months and
hundreds of thousands of dollars to produce the Other MNAs, see App. C, this cost
and burden does not outweigh Isley’s right to a fair trial. Isley’s very liberty was at
stake. Had this been nothing more than a complex commercial case between
private corporations, this discovery would have been ordered notwithstanding the
cost and burden. As a result, the cost and burden to the Government would have to
be substantially higher before the Government should be permitted to criminally
prosecute a defendant while holding back evidence that is favorable and material to
the defendant on the ground that it is too expensive or too burdensome to produce.
23

33. CONCLUSION
Given all of the above, this Court should grant certiorari, consider this case
on the merits, and answer the questions presented. Consequently, this Petition for
a Writ of Certiorari should be granted.
Respectfully submitted,
_____________________
Robert F. Schroeder
Counsel of Record
One Securities Centre
3490 Piedmont Road, N.E.
Suite 1050
Atlanta, Georgia 30305
(404) 842-0131
(404) 842-9750 (facsimile)
Counsel for Petitioner
Dated: June 4, 2010
24