This Court is familiar with Detective Brown's career as an
expert witness. A police officer for over twenty years, Brown has
testified in numerous cases as a narcotics expert. While most of
his testimony has been on behalf of the government, on a few
occasions he has even testified for the defense. Detective Brown
has been a witness before this Court on numerous occasions. He is
charismatic and his testimony has generally been well received by
Standard for New Trial — Discovery of New Evidence
This Court has discretion to grant a new trial under Rule 33
upon the discovery of new evidence, under the following
conditions: (1) the evidence must have been discovered since the
trial, (2) the party seeking the new trial must show diligence in
the attempt to procure the newly discovered evidence, (3) the
evidence relied on is not merely cumulative or impeaching, (4) it
must be material to the issues involved, and (5) of such a nature
that it would probably produce an acquittal. United States v.
Lafayette, 983 F.2d 1102, 1105 (D.C.Cir. 1993), citing Thompson
v. United States, 188 F.2d 652, 653 (D.C.Cir. 1951). A new trial
may also be granted when a government witness delivers false
testimony, and the Court is reasonably well satisfied that
without that testimony, the jury might have reached a different
conclusion, if the witness's false testimony is not discovered
until after trial is completed. United States v. Mangieri,
694 F.2d 1270, 1286 (D.C.Cir. 1982), citing Larrison v. United
States, 24 F.2d 82 (7th Cir. 1928) (the "Larrison standard").
The evidence that Brown lied in a deposition about his
education and expert witness qualifications would certainly have
been impeaching of Brown's credibility. More than that, though,
the evidence would have kept Brown from taking the stand at all.
It is clear to this Court, and the government apparently
concedes, that Detective Brown would not have been a witness if
government counsel knew that over the years Brown lied about his
credentials. The issue that remains is whether Brown's testimony
Brown's testimony filled in all of the gaps of the government's
case and was clearly material to the jury's determination.
Without Brown's testimony, the independent evidence against Jones
is highly circumstantial. Jones' offering of "Party with the
stars" to Officer Cutler is damning because Brown identified
"Party with the stars" as a brand of heroin. Jones was not caught
with drugs in his possession — rather he had $25.00. Possession
of U.S. currency is not evidence of a crime in this case without
Brown's testimony that a small bag of heroin costs between $20
and $25. Officer Cutler observed Jones receive some amount of
currency, but could not testify as to what Jones apparently sold
because the buyer (and item sold) were not recovered. Brown's
testimony alone allowed the jury to imply that Jones received $25
for the sale of a small bag of heroin. Although Jones was
observed in possession of the stash in the stairwell at 651
Morton Street, there was no fingerprint evidence connecting Jones
to the heroin. Officer Cutler's two prior run-ins with Jones only
evidence an intent to distribute heroin with Brown's expert
testimony on the brand names and how the drug trade operates. The
Court finds that Brown's testimony was material to Jones'
conviction — indeed, the only difference between this trial and
the earlier trial that ended in a hung jury was the addition of
Brown's expert testimony.
The government maintains that the jury would have reached the
same verdict "even if it had substantially discounted Detective
Brown's testimony." The government's position here misses the
point. The new evidence is not merely that Brown lied under oath
in a civil deposition. The true facts discovered, Brown resigned
from the police department. Had that evidence been available at
the time of Jones' trial, it is inconceivable that Brown would
have been offered as a witness by the government.
Indeed, at oral argument the government conceded this point.
The Court finds that in the interests of justice, for the
reasons stated above, a new trial in this matter is required. The
Court is mindful of the problem now facing the government in the
many cases where Detective Brown gave expert witness testimony on
the drug trade in this city. The government is concerned that a
grant of new trial in this case may have a precedential effect in
those other cases.*fn1 This Court is permitted only to consider
this case, on the facts before it.
The Court notes that Jones filed an earlier motion for new
trial in June 4, 1999, before the revelations concerning
Detective Brown were published. Jones states essentially that the
verdict was against the weight of the evidence, and that the
Court erred in the admission of certain evidence under Rule
404(b). The Court has considered these arguments, and the
government's opposition, and finds that there is no basis for
granting a new trial on the issues raised in that motion, and the
Court denies the earlier motion for new trial.
An appropriate order shall issue.
ORDER GRANTING MOTION FOR NEW TRIAL
This matter comes before the Court on Defendant's motions for
new trial. A hearing was held on Jones' motions on October 27,
1999, and the parties' positions were fully briefed and argued.
For the reasons set forth in the accompanying Memorandum Opinion,
it is hereby
ORDERED that Defendant's motion for new trial, filed on June
4, 1999, is DENIED; and it is further
ORDERED that Defendant's motion for new trial, filed on
September 27, 1999, is GRANTED.