ORAL ARGUMENT NOT YET SCHEDULED
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 00-3096
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
xxxxxxx PAUL Xxxxx, III, Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BRIEF FOR APPELLANT
A.J. Kramer
Federal Public Defender
Counsel for Defendant-Appellant
625 Indiana Ave., N.W., Suite 550
Washington, D.C. 20004
(202) 208-7500
District Court
Cr. No. 96-300 (PLF)
CERTIFICATE AS TO PARTIES,
RULINGS, AND RELATED CASES
Pursuant to D.C. Circuit Rule 28(a)(1), appellant hereby states as follows:
A. Parties and Amici
The parties below and in this court are defendant-appellant, xxxxxxx Paul Xxxxx, III, and the plaintiff-appellee, the United States of America. There are no intervenors or amici, either in the district court or this court.
B. Rulings Under Review
In this appeal, appellant challenges the ruling of the district court, the Honorable Paul L. Friedman, denying defendant’s motion to vacate, set aside, and correct his sentence, made pursuant to 28 U.S.C. § 2255. The district court’s decision is reported at United States v. Xxxxx, 109 F.Supp. 2d 18 (D.D.C. 2000).
C. Related Cases
There are no related cases. This case has previously been before this Court in United States v. Xxxxx, 152 F.3d 950 (D.C. Cir. 1998).
ISSUES PRESENTED FOR REVIEW
I. Whether the district court erred in failing to vacate appellant’s conviction and grant him a new trial where the government’s expert drug witness committed perjury in this case and had committed perjury numerous times before, and appellant was not told.
II. Whether the district court erred in failing to vacate appellant’s conviction and grant him a new trial where the government’s drug expert committed perjury at the trial.
III.Whether the district court erred in failing to allow appellant to conduct discovery to determine the extent of the perjury of the government’s drug expert both at appellant’s trial and on previous occasions.
STATUTES AND RULES
The relevant statutes and regulations are reproduced in the
addendum to this brief.
TABLE OF CONTENTS
ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . .iii
STATUTES AND RULES . . . . . . . . . . . . . . . . . . . . . . iv
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . .vii
JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . .1
A. Nature of the Case, Course of Proceedings, and
Disposition in the Court Below . . . . . . . . . . . .1
B. Statement of Facts . . . . . . . . . . . . . . . . . .3
1. Introduction . . . . . . . . . . . . . . . . . . .3
2. The Government’s Case-in-Chief . . . . . . . . . .4
a. The Search of the House . . . . . . . . . . .4
b. Testimony of Johnny St. Valentine Brown . . . 8
c. The 404(b) Evidence . . . . . . . . . . . . .10
3. The Defense Case . . . . . . . . . . . . . . . .13
4. The Government’s Rebuttal Case . . . . . . . . . 16
5. The Government’s Closing Argument . . . . . . . .17
6. The Court of Appeals Opinion . . . . . . . . . . 17
7. The § 2255 Motion . . . . . . . . . . . . . . . 17
8. The District Court’s Decision . . . . . . . . . .19
9. The Certificate of Appealability . . . . . . . . 20
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . .21
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
I. THE FAILURE TO DISCLOSE BROWN’S PERJURY TO DEFENDANT
VIOLATED THE RULE OF BRADY V. MARYLAND . . . . . . . . . .22
A. Standard of Review . . . . . . . . . . . . . . . . . .22
B. The Merits . . . . . . . . . . . . . . . . . . . . . .22
II. THE USE OF PERJURED TESTIMONY BY THE GOVERNMENT RENDERED
DEFENDANT’S TRIAL FUNDAMENTALLY UNFAIR . . . . . . . . . .31
A. Standard of Review . . . . . . . . . . . . . . . . . .31
B. The Merits . . . . . . . . . . . . . . . . . . . . . .31
III.THE DISTRICT COURT SHOULD HAVE ALLOWED THE DEFENDANT
TO CONDUCT DISCOVERY . . . . . . . . . . . . . . . . . . .35
A. Standard of Review . . . . . . . . . . . . . . . . . 35
B. The Merits . . . . . . . . . . . . . . . . . . . . .35
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . .37
CERTIFICATE OF LENGTH . . . . . . . . . . . . . . . . . . . . 38
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . 38
TABLE OF AUTHORITIES
CASES Pg.
*Boyd v. French, 147 F.3d 319 (4th Cir. 1998) . . . . . . . . .32
Bracy v. Gramley, 50 U.S. 899 (1997) . . . . . . . . . . . . .35
*Brady v. Maryland, 393 U.S. 83 (1963) . . . . . . . . . . passim
Butera v. District of Columbia, Civ. No. 98-cv-2794 .17, 18, 19
Fairman v. Anderson, 188 F.3d 635 (5th Cir. 1999) . . . . . . .31
Giglio v. United States, 405 U.S. 150 (1972) . . . . . . . . .33
*Gilday v. Callahan, 59 F.3d 257 (1st Cir. 1995) . . . . . . . 34
Harris v. Nelson, 394 U.S. 286 (1969) . . . . . . . . . . . . 35
*In re Sealed Case, 185 F.3d 887 (D.C. Cir. 1999) . . . . .22, 25
Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) . . . . . .30
*Kyles v. Whitley, 514 U.S. 419 (1995) . . . . . . . . . . passim
*Moore v. Gibson, 195 F.3d 1152 (10th Cir. 1999) . . . . . 26, 35
Napue v. Illinois, 360 U.S. 264 (1959) . . . . . . . . . . . .33
Ramos v. Walker, 744 F.Supp. 422 (E.D.N.Y. 1990) . . . . . . .32
Skaggs v. Parker, 27 F.Supp. 2d 952 (W.D. Ky. 1998) . . . . . 32
*Strickler v. Greene, 527 U.S. 263 (1999) . . . . . . . . .passim
*United States v. Agurs, 427 U.S. 97 (1976) . . . . . . . .passim
United States v. Amaral, 488 F.2d 1148 (9th Cir. 1973) . . . .30
United States v. Anderson, 851 F.2d 384 (D.C. Cir. 1988). . . 30
United States v. Bagley, 473 U.S. 667 (1985) . . . . . 22, 26, 34
United States v. Boney, 977 F.2d 624 (D.C. Cir. 1992) . . . . 30
*Authorities principally relied upon are marked with an asterisk.
United States v. Bowie, 198 F.3d 905, 909 (D.C. Cir. 1999). . 28
*United States v. Cuffie, 80 F.3d 514 (D.C. Cir. 1996) . . . . 24
United States v. Dunn, 846 F.2d 761 (D.C. Cir. 1988) . . . . .30
*United States v. Espinosa-Hernandez,
918 F.2d 911 (9th Cir. 1990) . . . . . . . . . . . . 36, 37
United States v. Johnny St. Valentine Brown, Jr.,
Cr. No. 00-0035-01 (HHK) . . . . . . . . . . . . . . . . .18
United States v. Mitchell, 996 F.2d 419 (D.C. Cir. 1993). . . 30
*United States v. Smith, 77 F.3d 511 (D.C. Cir. 1996) . . . . .28
United States v. Xxxxx, 109 F.Supp. 2d 18 (D.D.C. 2000) . .3, 19
United States v. Xxxxx, 152 F.3d 950 (D.C. Cir. 1998) . . . . .3
United States v. Thompson, 188 F.2d 652 (D.C. Cir. 1951) . . .27
United States v. Williams, 233 F.3d 592 (D.C. Cir. 2000). . . 27
United States v. Williams, 980 F.2d 1463 (D.C. Cir. 1992) . . 30
United States v. Young, 17 F.3d 1201 (9th Cir. 1994) . . . . .25
Wernert v. Arn, 918 F.2d 613 (6th Cir. 1987) . . . . . . . . .32
STATUTES AND RULES
18 U.S.C. § 922(g)(1) . . . . . . . . . . . . . . . . . . . . 2
18 U.S.C. § 922(v)(1) . . . . . . . . . . . . . . . . . . . . 2
21 U.S.C. § 841(a)(1) . . . . . . . . . . . . . . . . . . . .2
21 U.S.C. § 841(b)(1)(C). . . . . . . . . . . . . . . . . . . .2
21 U.S.C. § 860(a) . . . . . . . . . . . . . . . . . . . . . . 2
28 U.S.C. § 2253 . . . . . . . . . . . . . . . . . . . . . . . 1
28 U.S.C. § 2255 . . . . . . . . . . . . . . . . . . . . . . . 1
Fed.R. App.P. 4(a)(1)(B). . . . . . . . . . . . . . . . . . . .1
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 00-3096
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
xxxxxxx PAUL Xxxxx, III, Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BRIEF FOR DEFENDANT-APPELLANT
xxxxxxx PAUL Xxxxx, III
JURISDICTION
The District Court had jurisdiction under 28 U.S.C. § 2255. The notice of appeal having been filed within the sixty day period of Fed.R.App.P. 4(a)(1)(B), and the district court having issued a certificate of appealability, this court has jurisdiction under 28 U.S.C. § 2253.
STATEMENT OF THE CASE
A. Nature of the Case, Course of Proceedings, and
Disposition in the Court Below
On September 6, 1996, the defendant, xxxxxxx Paul Xxxxx, III, was charged in a five-count indictment with possession of a firearm by an ex-felon,18 U.S.C. § 922(g)(1) (Count One); possession of ammunition by an ex-felon, 18 U.S.C. § 922(g)(1) (Count Two); possession of a semi-automatic assault weapon, 18 U.S.C. § 922(v)(1) (Count Three); possession with intent to distribute cocaine base within 1,000 feet of a school, 21 U.S.C.
§ 860(a) (Count Four); and possession with intent to distribute
cocaine base, 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (Count
Five)(APP 1).
Appellant was tried by a jury commencing on February 3, 1997, before the Honorable Paul L. Friedman. On February 13, 1997, the jury returned verdicts of guilty on all counts.
On April 25, 1997, appellant was sentenced to 92 months imprisonment on Counts One, Two, and Four, to be served concurrently to each other, and a 60-month term of imprisonment on Count Three, to be served concurrently to all other counts. Count Five was dismissed by the district court, as a lesser-included offense of Count Four.
Defendant appealed, and on July 28, 1998, this court reversed the conviction on Count Three (the possession of a semi-automatic assault weapon) for insufficiency of the evidence, and on Count Four (the drug distribution), because the district court had allowed improper cross-examination of a defense witness. United States v. Xxxxx, 152 F.3d 950 (D.C. Cir. 1998)(APP 44).
On October 26, 1998, the district court resentenced
defendant on Counts One and Two, possession of a firearm and
ammunition by a convicted felon, to concurrent terms of eighty-four months imprisonment, to be followed by three years of
supervised release and a $200 special assessment.
Defendant is
currently serving that sentence.
On October 21, 1999, defendant filed a motion to vacate, set aside, and correct his sentence pursuant to 28 U.S.C. §2255 (APP 63). Defendant raised three issues, all of which related to the testimony at his trial of the government’s drug expert, Johnny St. Valentine Brown. The government opposed defendant’s motion (APP 92), and the district court denied it without a hearing on July 14, 2000. United States v. Xxxxx, 109 F.Supp.2d 18 (D.D.C. 2000)(APP 139).
On September 19, 2000, defendant filed a request for a certificate of appealability on all three issues raised in the petition (APP 145). On September 20, 2000, the district court granted the certificate of appealability (APP 176).
B. Statement of Facts
1. Introduction
The case arose from the service of a search warrant at 636 46th Place, S.E. (the “house”). The house was registered to defendant’s mother, Rhonda Lyles, on the public housing list (2/4/97 at 355). At the time of the search, defendant and his mother, his sister Tennille Lyles, and his cousin Darryl Henkle were at the house. Three guns and a small amount of drugs were found in the house in different locations. The government’s theory was that the drugs and guns belonged to both Mr. Xxxxx and Mr. Henkle.
The defense was that defendant had moved out of the house about two months before the search, and had gone to live with his girlfriend, and that the guns and drugs were possessed by Mr. Henkle. Mr. Henkle had been charged with possessing the guns and drugs in juvenile proceedings in Superior Court. He pleaded guilty to possessing the guns and the drug charges were dismissed as part of the plea bargain. At defendant's trial, Mr. Henkle testified that he possessed the guns and some of the drugs.
2. The Government's Case-In-Chief
a. The Search of the House
At approximately 4:00 p.m. on the afternoon of August 8, 1996, officers of the Metropolitan Police Department and agents of the Federal Bureau of Investigation executed a search warrant at 636 46th Place, S.E. (2/4/97 at 246). They found four people in the house (2/4/97 at 249). Defendant was in the kitchen, his juvenile cousin, Darryl Henkle, was in the living room, his mother, Rhonda Lyles, was in the living room sitting on a couch, and his sister, Tennille Lyles, was elsewhere in the house (2/4/97 at 249).
The officers found contraband in the living room and in two of the bedrooms. In the living room, the officers found a loaded .45 caliber Storm Ruger pistol that had cocaine residue on it (2/4/97 at 259; 2/5/97 at 433) and a loaded .380 caliber Colt pistol under the couch cushions where Rhonda Lyles had been sitting (2/4/97 at 253-254, 259, 267). A film canister containing four ziplocks (.389 grams) of 58% pure cocaine base (2/4/97 at 261; 2/5/97 at 448) and two pistol magazines were under the cushion of another couch (2/4/97 at 261, 268). A magazine speed loader was found underneath that couch (2/4/97 at 262-263). On a shelf were two receipts bearing defendant's name that were dated December 1995, and January 1996, and an automobile registration issued to him that expired in November 1996 (2/4/97 at 264-265).
There were three bedrooms upstairs. The first bedroom on the left was designated as Room C. The room appeared to be a young male's room (2/4/97 at 337). In the open closet of this bedroom the police found a half-zippered gun case that contained a semiautomatic Colt AR-15 assault rifle (2/4/97 at 271; 2/6/97 at 598), a loaded magazine of ammunition for the rifle, and four additional magazines, one of which was loaded (2/4/97 at 270, 272). Also found in the closet was a backpack containing a box of .44 caliber ammunition, a box containing a bulletproof vest and two ski masks, and a videotape box containing nine ziplocks (.890 grams) of 58% pure cocaine base (2/4/97 at 276-278; 2/5/97 at 450). On a shelf in the closet were empty ziplocks and Seal-A-Meal bags (2/4/97 at 279).
From the headboard of the bed in Room C the police found a .9 mm magazine (2/4/97 at 279-280), and a spent .358 shell casing (2/4/97 at 280). Also in Room C were documents bearing the names of defendant and other people who lived in the house or who had previously lived in the house (2/4/97 at 290-291, 335-336; 2/5/97 at 398-399, 403). The seizing officer testified that the documents in the room were "primarily" connected to defendant (2/4/97 at 291). The officers did not seize all of the documents found in the house (2/4/97 at 307, 335-336). Mr. Henkle's social security card and birth certificate were found in Room C (2/4/97 at 291). Some of the documents had the name of Rhonda Lyles, defendant's mother, on them, and some had the name of Robert Lyles, defendant's deceased brother (2/4/97 at 291). The seized documents that were associated with defendant were letters that were postmarked on various days in 1996 (2/4/97 at 284) (Exhibit 29A-N), receipts dated April through June, 1996 (2/4/97 at 284, 286), a bill dated April 25, 1996 (2/4/97 at 287-288), a letter postmarked August 1, 1996 (2/4/97 at 288), a social security card (2/4/97 at 288), a check cashing card (2/4/97 at 289), medical assistance pass cards (2/4/97 at 289), and two photographs depicting defendant (2/4/97 at 286).
Also in Room C, the officers found a page torn from a magazine that advertised a book about an assault weapon (2/4/97 at 283), and $500 in cash, which was in a shoe box under the dresser (2/4/97 at 303). Among the papers in the room was an envelope, written on the back of which was a price list for various amounts of cocaine (2/6/97 at 702-03). The seizing officer did not know if the price list came from the papers of defendant or those of Robert Lyles (2/4/97 at 360). The prices were prices that had been current in D.C. for the past five to six years (2/6/97 at 703).
The bedroom contained male clothing (2/4/97 at 270). The officers did not check the size of the clothing, and there was nothing in the clothing to identify it as belonging to anyone (2/4/97 at 337; 2/5/97 at 404).
From the second bedroom, designated as Room D, the officers found a .9 mm magazine in the closet (2/4/97 at 294, 304), photographs of defendant that had been taken in Room C (2/4/97 at 295-296), and a safe containing $380 (2/4/97 at 297, 302). The key to the safe was around Darryl Henkle's neck (2/4/97 at 297). The bedroom contained women's clothing (2/4/97 at 294).
Defendant's fingerprints were found on several items. One was on a .45 caliber bullet, which was inside the .45 caliber pistol found under the couch cushion in the living room (2/5/97 at 514). Two of defendant's fingerprints were found on the plastic container inside the box of .44 caliber ammunition found in the Room C closet (2/5/97 at 547). One fingerprint was found on the back of the envelope that had the price list of cocaine on its other side (2/5/97 at 545). There were a number of other fingerprints found on various items, which were either of no value or which did not match defendant's prints.
The house is within 1,000 feet of a school (2/5/97 at 571). Rhonda Lyles and Tennille Lyles were listed on the public housing manifest as residents of the house, but defendant was not listed (2/4/97 at 355).
The total weight of all the cocaine base was 1.279 grams (2/5/97 at 446, 450).
b. Testimony of Johnny St. Valentine Brown
The government presented the testimony of a drug expert,
Johnny St. Valentine Brown, who testified extensively about drug
"use, distribution, packaging, pricing, [and] sale" (2/6/97 at
693)(APP 8)
. To establish his credentials as an expert, Brown
testified to being involved in 1,500 drug investigations, and
that he had testified in "excess of some 4000 times in an expert
capacity in some 26 jurisdictions around this country" (2/6/97 at
691-93). Defense counsel stated that he had no questions to ask
about Brown's qualifications, stating, "I have no need to
inquire, Your Honor. We go back" (2/6/97 at 693). Brown stated
that his opinions were based on his long experience, and were not
designated to help one side or the other (2/6/97 at 78).
Brown accepted the fact that he was the "premier drug expert" in the MPD (2/7/97 at 739-40). He testified that he has taught at law schools throughout the area, including Howard and George Washington (2/7/97 at 740). He is sometimes called to testify in more difficult cases (2/7/97 at 740). Brown stated that he testified for the defense at least once a week, and is as zealous in his testimony for the defense as for the government (2/7/97 at 749). He testified that when asked questions he "give[s] an honest answer” (2/7/97 at 749)(APP 38)(emphasis added). He stated that if asked a question, “I’ll give you my answer that is true.” (2/7/97 at 749)(APP 38)(emphasis added).
Brown described in detail about crack and how it is used, packaged, and distributed (2/6/97 at 694-97). He also described in detail the concept of "stash houses," where drugs are hidden, stored, and sometimes sold and manufactured (2/6/97 at 697-98). Brown also explained in detail the meaning of the notations and numbers on what he described as a "drug price list" on which a fingerprint of defendant was found (2/6/97 a 702-03).
Brown testified that drugs and guns go "hand in hand" because the "drug business is a very dangerous trade" (2/6/97 at 703). The relationship of guns and drugs "is like horse and carriage" and guns are "very popular" in the drug trade as "a show of force" and "a way of intimidating" (2/6/97 at 703).
Brown also testified about the common practice of using juveniles to hold, transport, and sell drugs (2/6/97 at 705). There are several reasons for this, including the lesser penalties to which juveniles are subject (2/6/97 at 705).
Finally, Brown testified about the value of the drugs in the present case, and the fact that a person possessing the amounts would be "a retail distributor" (2/6/97 at 709). He also testified that a user of crack does not store the drug for future use, but instead uses it immediately (2/7/97 at 747).
c. The 404(b) Evidence
Prior to trial, the government filed notice of its intent to introduce evidence of other crimes of defendant, pursuant to Fed. R. Evid. 404(b). The government wanted to introduce three instances of prior gun possessions by defendant, all of which took place in 1992. The government also wanted to introduce a sale of drugs to undercover officers by defendant, during which defendant went into the house.
The court decided to let in one of the prior gun incidents
and the prior drug sale (1/27/97 at 110). The testimony of the
two incidents was introduced at trial. The gun incident occurred
at Free State Arms and Ammunition in Temple Hills, Maryland, on
December 29, 1992 (2/6/97 at 618). Defendant came into the store
with a semiautomatic handgun in a bag, which, he told the owner
of the store, was not working (2/6/97 at 620). The gun shop
owner fixed the gun and defendant drove away in a car with the
gun (2/6/97 at 625). An ATF agent in the store at the time
noticed that the pistol's serial number was scratched off
completely (2/6/97 at 621). Defendant was subsequently stopped
and the pistol was found under the driver's seat, and another
semiautomatic pistol was found behind the ash tray (2/6/97 at
625-26).
Two officers testified about the prior drug sale, which took place on November 7, 1995 (2/6/97 at 642). The undercover police officers, Lorenso James and Wanda Fields, were in a car with James driving (2/6/97 at 643). According to James, who had previously seen defendant and knew his name, defendant and another man were standing outside in the 600 block of 46th Place, S.E. (2/6/97 at 644, 670, 684). Fields asked for crack, and defendant said he could provide 40 ziplock bags for $340 (2/6/97 at 645). Defendant went to the front yard of the house, pulled something out of the grass, and went into the house. Fields had pulled the car to the corner of 46th and G and parked, where defendant came back with only 25 bags, which he sold to them for $200 (2/6/97 at 647-48).
Fields also testified about the transaction, and an audiotape was played from a recorder she had on her person (2/7/97 at 763-64). Fields recounted a similar scenario as James, although Fields testified that there were two or three other people standing with defendant, and she testified that the officers made a right turn at the corner and parked on the adjoining street before defendant came back (2/7/97 at 769, 773). The report filled out by Fields in connection with the purchase had a date of November 7, 1994, rather than 1995 (2/7/97 at 777). Although the drugs had field-tested positively for cocaine base, they had not been tested by the DEA (2/7/97 at 779).
The testimony of Brown was that the transaction could not have happened the way James and Field described it. Brown testified that no crack dealer would sell multiple small bags of crack, because of the possibility that the buyer would likely rob the seller or would be a police officer (2/7/97 at 738). He had never heard, in all his years of experience, of a sale of twenty-five ziplock bags for $200 (2/7/97 at 753).
3. The Defense Case
The defense contended that the contraband belonged solely to the defendant’s cousin, Darryl Henkle, who lived in the bedroom, Room C, in which most of the contraband was found (2/10/97 at 862). Henkle, who had been prosecuted by the Corporation Counsel and had pleaded guilty to possession of the guns (2/10/97 at 867, 922), testified as such. Henkle wanted to clear defendant's name, because defendant should not go to jail for something he did not do (2/10/97 at 868).
Henkle testified that defendant's brother, Robert Lyles, who
had died in 1995, had lived in the bedroom in which most of the
contraband was found and had owned the guns that were seized
(2/10/97 at 863). During the summer of 1996, Henkle's aunt,
Rhonda Lyles,
let Henkle stay in Robert's bedroom and gave
Robert's car to Henkle (2/10/97 at 863, 866, 876). In the car,
Henkle found the gun case with the semiautomatic rifle, two
handguns, and ammunition (2/10/97 at 864, 879). He stored the
rifle in the bedroom and stored the handguns under the couch
cushions on the theory that he could quickly dispose of the
handguns before his aunt found them (2/10/97 at 865).
Henkle testified that defendant did not live at the house at the time of the search, but had moved to his girlfriend's house (2/10/97 at 870). Defendant would come to the house to take his mother to the hospital or to see how she was doing, but would not stay (2/10/97 at 871, 887). Henkle had not shown the guns to defendant, nor had Henkle ever seen defendant use anything in Room C (2/10/97 at 910-12).
Henkle pleaded guilty to gun charges in Superior Court involving the same guns with which defendant was charged (2/10/97 at 918). In exchange, the government dismissed four counts involving ammunition and two drug charges, for which he could not be further prosecuted (2/10/97 at 949).
Many of the other items of evidence also belonged to Henkle. He was a drug seller and had put his drugs under the couch cushion in the film canister (2/10/97 at 865). Henkle stored clothes, his masks, and his .9 mm clip in Room C and kept his safe in Tennille Lyles' bedroom (2/10/97 at 887, 899, 901). Henkle did not recognize some of the things seized from Robert's room, such as papers and letters, the drug price list, and the drugs stored in a videocassette box (2/10/97 at 888-897, 917). The ziplocks in the closet were not his (2/10/97 at 900). He recognized the backpack found in the closet as belonging to Robert, but he had never looked inside it (2/10/97 at 898). The bulletproof vest was in the closet when he moved into the house (2/10/97 at 879).
Defendant's sister, Tennille Lyles, testified that the bedroom designated as Room C belonged to her deceased brother, Robert (2/10/97 at 957). After Robert's death, Darryl Henkle stayed in Robert's bedroom all the time during the summer of 1996 (2/10/97 at 958). Robert's car was delivered to the house sometime during the summer of 1996 (2/10/97 at 963). In June of 1996, defendant moved to the house of his girlfriend, Lolita Little (2/10/97 at 976).
Lolita Little confirmed that defendant began living with her and her mother in June 1996 (2/10/97 at 978). When he moved in, defendant brought all his clothes, but nothing else (2/10/97 at 979). Ms. Little supported defendant financially (2/10/97 at 981).
The prosecutor began her cross-examination of Lolita Little by establishing that she loved defendant (2/10/97 at 982), that in May of 1996 she wrote a letter to defendant in which she complained that he had not been spending enough time with her (2/10/97 at 982, 984-986), and that she was fond of defendant's mother and sister (2/10/97 at 987). The prosecutor then asked a series of questions about the letter Ms. Little wrote to defendant (2/10/97 at 1004-10). Defense counsel argued that in addition to being unduly prejudicial, the evidence was other crimes evidence for which the defense had not received notice (2/10/97 at 992).
Iris Little, Lolita Little's mother, also testified that defendant moved into her house toward the end of June 1996, at 3400 Seventh Street, S.E. (2/10/97 at 1012). Iris Little was an industrial equipment handler for the Department of Public Works, where she had worked for eleven years (2/10/97 at 1013). As a concerned parent, Ms. Little often called her house, talking to defendant three to four times a day (2/10/97 at 1013, 1015). Ms. Little saw defendant in the evenings and in the mornings before work (2/10/97 at 1013).
4. The Government's Rebuttal Case
The government presented two witnesses in rebuttal, and one stipulation. The first witness testified that the Storm Ruger pistol was originally shipped from the manufacturer to a store in Illinois on October 24, 1995 (2/11/97 at 1076-77).
The second witness, defendant’s probation officer, testified that defendant, who was on supervised release from his earlier conviction, had a duty to provide a change of address to his probation officer within seventy-two hours (2/11/97 at 1080). The probation officer had visited defendant at the house in March 1996, and after that he had not reported any change in address (2/11/97 at 1081). The probation officer had visited the house in June 1996, but defendant was not there (2/11/97 at 1081).
Finally, the stipulation revealed that Mr. Henkle's fingerprint did not match the print on the film canister containing drugs, or any of the five prints on a paper taken from Room C, or the print on a magazine for the rifle.
5. The Government's Closing Argument
In its closing argument, the government recounted Brown's testimony about the "connection between guns and drugs" (2/11/97 at 1149) and his testimony that the drugs all came from the "same strain" (2/11/97 at 1149). The government's theory was that defendant and Henkle jointly possessed the drugs and guns (2/11/97 at 1138), and that all the evidence gave the jury the "big picture" (2/11/97 at 1188).
6. The Court of Appeals Opinion
This court reversed the conviction for possession of the semiautomatic assault weapon because the government presented insufficient evidence on that charge. 152 F.3d at 956-59 (APP 50-52). The court reversed the conviction for the drugs because it was improper for the government to cross-examine Ms. Little about the letter she had written. Id. at 960-62 (APP 54-56). The court left intact the convictions for possession of a firearm and ammunition by a felon. Id. at 962 (APP 56).
7. The § 2255 Motion
In Butera v. District of Columbia, Civ. No. 98-cv-2794, a case before Judge June Green, the plaintiff's counsel discovered that Brown had committed perjury during his deposition on June 22, 1999, regarding testimony about his background. In Butera, Brown was to be called as an expert witness for the defense regarding police use of informants and police training.
In light of the revelation about Brown’s perjury, defendant filed the § 2255 motion which is the subject of this appeal, arguing that his trial was tainted by Brown’s testimony (APP 63). Defendant argued that, with respect to Brown’s testimony, the government had violated the discovery rule set forth in Brady v. Maryland, 393 U.S. 83 (1963), and the rule regarding use of perjured testimony of United States v. Agurs, 427 U.S. 97 (1976). Defendant also requested that he be allowed to conduct discovery to bolster his claims. Attached to his § 2255 reply motion defendant submitted a 1983 article from the Washington Post praising Brown’s testimonial efforts, with a prosecutor declaring that Brown could “make or break a case,” and court officials quoted as saying Brown’s “testimony is often the difference between conviction and acquittal” (APP 136-38). The article indicated Brown had been committing the same kind of perjury in 1983 as he had in the Butera case.
While defendant’s § 2255 motion was pending, Brown pleaded guilty to eight counts of perjury in district court in United States v. Johnny Brown, Jr., Cr. No. 00-0035-01 (HHK). In its responsive sentencing memo in Brown’s case, the government stated that “[p]erjury, particularly by a law enforcement officer, is an extremely grave offense that strikes at the very heart of our system of justice.” Memo at p.4. The government stated that Brown’s lies were “certainly intended to affect jurors’...perceptions of him,” and were used to bolster “his qualifications as an expert witness.” Id. The government claimed that Brown “committed a similar perjury offense on an almost daily basis, for nearly two decades.” Id. at 5. On June 2, 2000, Brown was sentenced to twenty-four months in custody for his perjury convictions.
8. The District Court’s Decision
On July 14, 2000, the district court denied the § 2255 motion at 109 F.Supp. 2d 18 (D.D.C. 2000)(APP 139). The district court’s cursory opinion rejecting defendant’s claims contains both legal and factual errors. The court held that there was no Brady violation for failing to disclose Brown’s subsequent perjury in the Butera case because the information was not in he government’s possession at the time of defendant’s trial. 109 F.Supp.2d at 20. The court further found that the “jury’s verdict would not have been any different even had the jury known about Detective Brown’s perjury in other cases.” Id. The court found that Detective Brown’s testimony was “not critical to the jury’s finding of guilt” on the gun counts because as an expert witness he only testified about drugs, “not about guns.” Id.
The court also found that Brown “did not perjure himself in this case” and that defendant did not establish that Brown “testified falsely” in this case. Id. at 21. Therefore, because Brown did “not testify about his credentials” and because “the jury did not hear any false testimony” from Brown, the “defendant’s Agurs argument fails.” Id.
The court further found that in light of the other evidence of defendant’s guilt it “could not find that the jury might have reached a different verdict even if it had discounted Detective Brown’s testimony.” Id. at 21-22.
Although defendant had made a request for discovery to determine the extent and nature of Brown’s perjury and the government’s knowledge of it, the court’s opinion fails to mention discovery at all.
9. The Certificate of Appealability
In his request for a certificate of appealability, defendant
attached an article from the City Paper of July, 2000, which
revealed in detail Brown’s pathological lying, and which showed
that Brown had apparently committed perjury far beyond simply
lying about his credentials (APP 160-174). The article also
revealed that the police department knew of lies on Brown’s re-employment application with the police department at least as far
back as 1995 (APP 162). As noted above, the district court
granted the certificate of appealability one day after the
request was filed (APP 176).
SUMMARY OF ARGUMENT
Johnny St. Valentine Brown was a prolific and pathological perjurer. He committed the ultimate perjury in the present case when he ironically vouched for his own credibility by stating that he always gives honest answers on the witness stand and that he answers all questions with answers that are true.
The government’s use of this master of mendacity as an expert witness rendered defendant’s trial fundamentally unfair. The disclosure rule of Brady v. Maryland was violated because defendant was not advised of Brown’s perjury in the present case or of his previous perjury. The perjured testimony also violated the rule of United States v. Agurs.
The evidence in this case was hardly overwhelming. Henkle had pleaded guilty to possessing the same guns for which defendant was convicted, and in exchange charges regarding the ammunition and drugs were dismissed. Henkle testified that defendant did not possess the guns and ammunition, and this testimony was supported by other witnesses. The Brady and Agurs violations, therefore, require a new trial.
Alternatively, if the court finds that a new trial is not warranted on this record, the district court erred in denying defendant’s request for discovery to determine the nature and extent of Brown’s perjury, as well as the knowledge by others of Brown’s lying.
ARGUMENT
I. THE FAILURE TO DISCLOSE BROWN’S
PERJURY TO DEFENDANT VIOLATED THE
RULE OF BRADY V. MARYLAND
A. Standard of Review
Whether the government has breached its obligations under Brady is a question of law that is reviewed de novo. In re Sealed Case, 185 F.3d 887, 893 (D.C. Cir. 1999).
B. The Merits
In Brady v. Maryland, 373 U.S. 83, 97 (1963), the Supreme court held that suppression by the prosecution of evidence favorable to an accused violates due process where the evidence is material to guilt or punishment. In Strickler v. Greene, 527 U.S. 263 (1999), the Court explained that
We have since held that the duty to disclose such evidence is applicable even though there has been no request by the accused, United States v. Agurs, 427 U.S. 97, 107, 96 S.Ct. 23292, 49 L.Ed.2d 342 (1976), and that the duty encompasses impeachment evidence as well as exculpatory evidence, United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). Such evidence is material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." id., at 682; see also Kyles v. Whitley, 514 U.S. 419, 433-434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). Moreover, the rule encompasses evidence "known only to police investigators and not to the prosecutor." Id., at 438. In order to comply with Brady, therefore, "the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in this case, including the police." Kyles, 514 U.S., at 437.
These cases, together with earlier cases condemning the knowing use of perjured testimony, illustrate the special role played by the American prosecutor in the search for truth in criminal trials.
Id. at 280-81(footnote omitted)(emphasis added). The Court summarized by explaining
There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.
Id. at 281-82.
As discussed above, Brown has committed perjury on a
prodigious scale, including in the present case. Such evidence
obviously fulfills the first two requirements for a Brady
violation. First, evidence of committing perjury and falsifying
credentials while previously testifying for the government would
be impeaching evidence. Second, the evidence of Brown's prior
perjury was not revealed to defendant, and it clearly comes
within the inclusion of Kyles and Strickler of evidence “known
only to police investigators and not to the prosecutor.”
In United States v. Cuffie, 80 F.3d 514 (D.C. Cir. 1996), this court addressed the government's failure to disclose that one of its witnesses, a former police officer who became a codefendant, had committed perjury at a previous proceeding. The court noted that the
government properly concedes also that the fact of Moore's perjury would have been admissible, on cross-examination concerning Moore's truthfulness, as a specific instance of his conduct probative of untruthfulness. See Fed.R.Evid. 608(b).
Id. at 517 (footnote omitted). The court conducted the Brady analysis and determined that the withheld evidence was material. In reaching its conclusion, the court stated:
undisclosed impeachment evidence can be immaterial because of its cumulative nature only if the witness was already impeached at trial by the same kind of evidence.
Id. at 518 (footnote omitted). The court concluded that:
In light of the axiomatic importance of truthful testimony for the integrity of judicial proceedings, undisclosed evidence of a witness' prior perjury has a significant impact on the fairness of the trial.
Id.
The district court’s analysis of the Brady issue in the
present case was wrong in every respect. The district court’s
opinion falsely states that Brown did not perjure himself in this
case. In fact, Brown clearly did commit perjury at least twice
when he testified that when asked questions he gives an honest
answer, and that his answers are true.
The district court also found there was no Brady violation
because the government did not know about Brown’s perjury at the
time of this trial.
The district court’s opinion ignores, and
does not even cite, Kyles and Strickler, which clearly hold the
government responsible for information known only to the police
and not revealed to the prosecutor. The distinction between the
police and the United States Attorney’s Office is “of no moment
to its obligations under Brady.” In re Sealed Case, 185 F.3d at
981 n.2.
In United States v. Young, 17 F.3d 1201 (9th Cir. 1994), one agent, who was on vacation when the trial took place, testified that she had told the prosecutor before trial about a fact about which another agent at trial testified wrongly. The prosecutor did not recall the conversation. Id. at 1203. The court stated:
However, a government's assurances that false evidence was presented in good faith are little comfort to a criminal defendant wrongly convicted on the basis of such evidence. A conviction based in part on false evidence, even false evidence presented in good faith, hardly comports with fundamental fairness. Thus, even if the government unwittingly presents false evidence, a defendant is entitled to a new trial "if there is a reasonable probability that [without the evidence] the result of the proceeding would have been different." Endicott, 869 F.2d at 455 (citing United States v. Bagley, 473 U.S. 667, 678-80, 105 S.Ct. 3375, 3381-82, 87 L.Ed.2d 481 (1985)).
Id. at 1203-04.
In Moore v. Gibson, 195 F.3d 1152, 1165 (10th Cir.1999), the court employed Brady analysis in evaluating a claim that the police had planted evidence, although there was no assertion that the prosecutor had any knowledge thereof, because “[k]nowledge of police officers or investigators will be imputed to the prosecution.” Id. at 1164. Because of the importance of the evidence to the circumstantial case, the court found the allegations of planted evidence would be material, "if proved." Id. at 1166.
The district court in the present case also concluded that
even if there was a Brady violation, the jury’s verdict would not
have been “any different.” 109 F.Supp.2d at 20. The correct
inquiry is whether "'there is a reasonable probability' that the
result of the trial would have been different if the suppressed
[evidence] had been disclosed to the defense."
Strickler, id.
at 289. The materiality of the evidence "is not gauged by a
sufficiency-of-the-evidence test," because "it makes no
difference...whether the testimony of other witnesses might have
been sufficient to convict" defendant. United States v. Smith,
77 F.3d 511, 512 (D.C. Cir. 1996). Once there is a "reasonable
probability of a different result," the inquiry is over. Id. at
514. “[I]t does not have to be more likely than not that the
defendant would have been acquitted had the evidence been
disclosed.” United States v. Bowie, 198 F.3d 905, 909 (D.C. Cir.
1999).
The district court’s opinion omits any mention of the fact that Henkle pleaded guilty to the gun charges in Superior Court and that he testified at trial that the guns and ammunition belonged to him, not to defendant. The district court’s opinion also omits mention of the defense witnesses who testified that defendant had moved out of the house about two months before the search, and that Henkle stayed in the bedroom where most of the contraband was found, something Henkle himself confirmed.
Also missing from the court’s opinion is an accurate summary of Brown’s testimony. Brown testified extensively about drug “use, distribution, packaging, pricing, [and] sale” (2/6/97 at 693). Brown specifically testified about guns, stating that drugs and guns go “hand in hand” because the “drug business is a very dangerous trade” (2/6/97 at 703). The relationship of guns and drugs “is like horse and carriage” and guns are “very popular” in the drug trade as “a show of force” and “a way of intimidating” (2/6/97 at 703).
Brown’s testimony was very important, because he testified regarding the connection between guns and drugs. The government specifically relied upon this testimony in its closing argument to connect defendant with the drugs and guns. The suppressed evidence of Brown’s pervasive and prolonged perjury on behalf of the government would have had a major impact on the jury had it been revealed.
Furthermore, this case is unique in that Henkle had already pleaded guilty to possessing the guns in Superior Court and testified in this case that they were his. Thus, Brown’s testimony connecting the drugs and guns was very important. With respect to the drug count, this court reversed that conviction because of the improper cross-examination of Ms. Little. While this court did not find such error harmful with respect to the gun and ammunition convictions, now the prejudice from the Brady violation regarding Brown’s testimony must be added. This clearly establishes a reasonable probability of a different result.
Furthermore, defense counsel declined the opportunity to cross-examine Brown about his qualifications, apparently because of experience with Brown‘s expert testimony. If Brown perjured himself in those prior cases, or if defense counsel’s deference to Brown arose from other instances of perjury, the failure to cross-examine was a further direct consequence of the failure to reveal the prior perjury.
The government has argued over the years that expert testimony such as that given by Brown in this case is very important for the government in proving its case. See, e. g., United States v. Mitchell, 996 F.2d 419 (D.C. Cir. 1993); United States v. Williams, 980 F.2d 1463 (D.C. Cir. 1992); United States v. Boney, 977 F.2d 624 (D.C. Cir. 1992); United States v. Dunn, 846 F.2d 761 (D.C. Cir. 1988). It demonstrates an alarming hypocrisy for the government to now argue that such testimony is immaterial, especially where Brown’s effect on a jury has been so dramatically described.
This court has recognized the effect of expert testimony on a jury:
“[T]here is often an inherent danger with expert testimony unduly biasing the jury ‘because of its aura of special reliability and trust.’” [United States v. Anderson.] 851 F.2d 384, 393 (D.C. Cir. 1988)(quoting United States v. Amaral, 488 F.2d 1148, 1152 (9th Cir. 1973), cert. denied, 488 U.S. 1012, 109 S.Ct. 801, 102 L.Ed. 2d 792 (1989).
Boney, 977 F.2d at 631. There is a “gatekeeping requirement” before a district court admits expert testimony. Kumho Tire Co. v. Carmichael, 526 U.S. 137(1999). The Court in Kumho stated:
The objective of that requirement is to ensure the reliability and relevancy of expert testimony. It is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.
Id. at 152. When an expert, especially a government expert in a criminal case, has perjured himself perhaps thousands of times, that perverts, not ensures, the reliability of the testimony. That is what has occurred in this case, and therefore, defendant should be granted a new trial.
II. THE USE OF PERJURED TESTIMONY BY THE GOVERNMENT
RENDERED DEFENDANT’S TRIAL FUNDAMENTALLY UNFAIR
A. Standard of Review
A claim involving the use of perjured testimony presents “a mixed question of law and fact,” with review of the “underlying facts for clear error and the conclusions from the facts de novo.” Fairman v. Anderson, 188 F.3d 635, 640 (5th Cir. 1999).
B. The Merits
In United States v. Agurs, 427 U.S. 97, 103 (1976), the Court stated that “a conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgement of the jury.” This is an easier standard of materiality to meet than under Brady, because use of perjured testimony involves not only “prosecutorial misconduct,” but also “more importantly,” it involves “a corruption of the truth-seeking function of the trial process.” Id. at 104.
Brown’s perjury involves the corruption of the truth-seeking process described in Agurs, and his testimony raises issues of whether the government “should have known” the testimony was perjured on this, or previous occasions. Kyles v. Whitley, 514 U.S. 419, 433 (1995). If the government should have known of the perjury, the Agurs test applies. By the government’s own admission, Brown committed perjury on a daily basis for over two decades. The government should have known of such pervasive perjury.
In addition, Agurs is clearly implicated because Brown was a police officer, and “knowingly false or misleading testimony by a
law enforcement officer is imputed to the prosecution.” Boyd v. French, 147 F.3d 319, 329 (4th Cir. 1998)(emphasis added). Other courts have also applied the Agurs test to perjury by a police officer. See, e. g., Wernert v. Arn, 918 F.2d 613, 617 (6th Cir. 1987)(using Agurs test where police officer “falsely testified that he had received a bachelor’s degree in pharmacy from the University of Toledo and that he possessed other scientific credentials he did not in fact have”); Skaggs v. Parker, 27 F.Supp.2d 952 (W.D. Ky. 1998)(the court used the test for knowing use of perjured testimony where the state’s ballistics examiner falsely stated that he had a bachelor’s degree from a certain university); Ramos v. Walker, 744 F.Supp. 422, 429 (E.D.N.Y. 1990)(using test for perjured testimony where state’s serologist gave “misleading,” although “not completely untrue,” testimony regarding his educational credentials).
In the district court in the present case, the government did not argue that Brown’s perjury was not prejudicial error under the Agurs standard. Instead, the government argued that Brown had not committed perjury at all. The district court found that “because the jury did not hear any false testimony from Detective Brown, the defendant’s Agurs argument fails.” 109 F.Supp.2d at 21. Of course, as discussed above, Brown did in fact testify falsely, at the very least when he twice vouched for his own honesty.
As this court recently recognized in Williams, an Agurs violation is almost per se reversible error:
The Supreme Court [in Agurs] directed federal courts to overturn convictions based on the government’s knowing use of perjured testimony if there is “any reasonable likelihood that the false testimony could have affected the judgment of the jury.”
. . .
The Agurs test, which repeats prior Supreme Court law, see Giglio v. United States, 405 U.S. 150, 154-55 (1972); Napue v. Illinois, 360 U.S. 264, 269-70 (1959), is quite easily satisfied. The phrases - “reasonable likelihood,” “could have affected” - “mandate a virtual automatic reversal of a criminal conviction.” Stofsky, 527 F.2d at 243.
233 F.3d at 594(emphasis added). The factual discussion above demonstrating the prejudice from the Brady violation, applies as well to the Agurs claim. Given the importance of Brown’s testimony linking the guns and drugs, there is much more than “any reasonable likelihood” that his perjury “could have affected the judgment of the jury.” Reversal of defendant’s conviction is clearly mandated.
As the court explained in Gilday v. Callahan, 59 F.3d 257, 267 (1st Cir. 1995), in distinguishing a Brady claim from one involving perjured testimony:
A standard of materiality more favorable to the defendant applies, however, when previously undisclosed evidence reveals that the prosecutor knowingly used perjured testimony or, “equivalently,” knowingly failed to disclose that testimony used to convict the defendant was false. Bagley, 473 U.S. at 678-80, 105 S.Ct. at 3381-81. In such situations, “‘a conviction...is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury’,” Kyles, U.S. at n.7, 115 S.Ct. at 1565 n.7 (quoting United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 2397, 49 L.Ed. 2d 342 (1976)(emphasis added).
Thus, where false testimony is involved, a defendant is given “the benefit of a friendly standard” of materiality, although the government can still try to meets its burden of showing that the error was harmless beyond a reasonable doubt. Id. at 268 & n.11. Again, the discussion of the prejudice from the Brady violation demonstrates why a new trial is warranted under that standard. Because Agurs is an easier hurdle for a defendant, a new trial is even more clearly warranted under this test.
III.THE DISTRICT COURT SHOULD HAVE ALLOWED
THE DEFENDANT TO CONDUCT DISCOVERY
A. Standard of Review
A district court’s decision to allow discovery under Rule 6 of the Rules Governing Section 2255 Proceedings is reviewed for abuse of discretion. Bracy v. Gramly, 520 U.S. 899, 909 (1997). Where a defendant has made “specific allegations” supporting a claim for relief, it is an “abuse of discretion not to permit any discovery.” Id.
B. The Merits
In Moore v. Gibson, 195 F.3d at 1165, the court stated:
A federal habeas petitioner will be entitled to discovery only “if, and to the extent that, the [district court] judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise.” Rule 6(a), Rules Governing Section 2254 Cases; see also LaFevers, 182 F.3d at 723. “‘[W]here specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is...entitled to relief, it is the duty of the court to provide the necessary facilities and procedures for an adequate inquiry.’” Bracy, 520 U.S. at 908-09, 117 S.Ct. 1793 (quoting Harris v. Nelson, 394 U.S. 286, 300, 89 S.Ct. 1082, 22 L.Ed. 2d 281 (1969)).
At a minimum in this case, the district court should have allowed defendant to conduct discovery. In Moore, the court held that the district court erred in not allowing discovery where the record “lends some support, and does not contravene, petitioner’s allegations which, if proved, would warrant habeas relief.” Id. at 1166. In the present case, there were abundant allegations of Brown’s perjury. The district court did not even address the issue in its opinion. The government’s opposition to any discovery hardly enhances the integrity of the system that was sullied by its own expert.
In United States v. Espinosa-Hernandez, 918 F.2d 911 (9th Cir. 1990), the district court relied upon the testimony of the case agent in finding that a witness was unavailable to testify. The government did not dispute that the agent made false statements in his grand jury testimony and in the affidavit for the complaint. Id. at 913. After the conviction of the defendant, the agent was also indicted for making false statements on his job application. Id. The district court had denied defendant's new trial motion and request for discovery.
The court of appeals reversed, stating:
For example, discovery might lead to the conclusion that Urso committed perjury in Espinosa's trial or a related proceeding.
* * * *
Discovery into the investigation might show that Urso has committed perjury in a proceeding similar to Espinosa's trial. If so, the discovered evidence would be beyond that of mere impeachment and a new trial would be necessary to "remove the taint" from Espinosa's conviction.
Id. at 913-14. The court further stated:
Discovery might also enlighten the District Court as to when the United States Attorney's office first learned of the disturbing allegations against Urso. Depending upon when this information was learned, Espinosa might succeed in obtaining a new trial based upon the government's failure to disclose evidence that could have been used to impeach a government witness.
Id. at 914.
The same considerations as in Espinosa-Hernandez apply to the present case. The district court should have allowed defendant to conduct discovery.
CONCLUSION
Defendant’s rights under Brady v. Maryland and United States v. Agurs were violated at his trial. Defendant therefore respectfully requests that this court reverse the decision of the district court and vacate his remaining convictions and remand the case for a new trial. At a minimum, this court should remand the case so discovery can be conducted.
Respectfully submitted,
A. J. Kramer
Federal Public Defender
625 Indiana Avenue, N.W.
Washington, D.C. 20004
(202) 208-7500
I HEREBY CERTIFY that the foregoing brief for appellant xxxxxxx P. Xxxxx, III, complies with the type-volume limitations set forth in Fed. R. App.P. 32(a)(5)(A), (6),(7)(B) and Circuit Rule 32(a)(2). This brief contains 8729 words.
A. J. KRAMER
I HEREBY CERTIFY that two copies of the foregoing Brief of Appellant and one copy of the accompanying Appendix were on this th day of January, 20001, served by hand-delivery upon John R. Fisher, Chief, Appellate Division, United States Attorney's Office, 555 Fourth Street, N.W., Washington, D.C. 20001.
A. J. KRAMER