The Court has yet to address, however, whether the Due Process Clause requires such disclosures outside the context of a trial. See United States v. Tadros, 310 F.3d 999, 1005 (7th Cir. 2002) (holding that "[a] violation of the Brady rule occurs only when the government withholds evidence which, had it been disclosed, creates a reasonable probability that the result of the trial would have been different"); United States v. Nash, 29 F.3d 1195, 1202-03 n. 5 (7th Cir. 1994) (refraining from addressing the issue of whether " Brady may be invoked to challenge the voluntariness of the plea where a defendant's (otherwise voluntary plea) was given without knowledge of . . . undisclosed exculpatory evidence"). A recent decision by the Supreme Court, however, indicates that such a claim might be viable in certain cases.
There is nothing but mere speculation that the sixty-one remaining hours of the Vienna intercept contain any Brady material, and under our cases, speculation is not enough to establish that the Government has hidden evidence. United States v. Nash, 29 F.3d 1195, 1202 (7th Cir. 1994) (citation omitted). There is no requirement under Brady that the Government transcribe the entire sixty-five hours of the intercept, much of which contains irrelevant information.
The alleged inconsistency about who reported Daniels to law enforcement “cannot be characterized as anything but minor.” United States v. Nash, 29 F.3d 1195, 1202 (7th Cir. 1994). Any “incremental impeachment value [Daniels] would receive from [this] minor inconsistenc[y] . . . does not raise a reasonable probability that, had the [report] been disclosed to [his] counsel, the outcome of the proceeding would have been different.