The opinion of the court was delivered by: Sporkin, District Judge.
MEMORANDUM OPINION ON DEFENDANT'S MOTIONS FOR NEW TRIAL
On May 27, 1999, following a three-day jury trial, Raymond A.
Jones Jr. was convicted on one count of possession with intent to
distribute heroin. This was the second time Jones was tried on
this charge, the first trial having ended in a hung jury. At this
trial, the government offered expert witness testimony from its
"resident narcotics expert" (Tr. 5-26-99 at 3A-3), Detective
Johnny St. Valentine Brown. Jones' counsel stipulated to
Detective Brown's "qualifications, being a resident narcotics
expert qualified as whatever." Detective Brown did not testify at
trial about his qualifications.
Following the trial's conclusion, Detective Brown's credentials
were questioned in an unrelated matter. Particularly it was
learned that Detective Brown, who on many occasions in the past
has held himself out as having a degree in pharmacology, was in
fact the holder of no such degree. On September 30, 1999, Jones
moved for a new trial under Rule 33, arguing that because his
conviction rests on Brown's expert witness testimony, which would
not have been heard by the jury had it been known that Brown had
his expert qualifications in the past. Defendant states the
interests of justice require a new trial.
The government's case against Jones consisted of two fact
witnesses, Officers Cutler and Garvin, and Detective Brown's
expert witness testimony. Officer Cutler testified that on June
16, 1999, he was stationed observing a stairwell at 651 Morton
Street, an apartment building in Washington, D.C. Officer Cutler
was approximately 100 feet away from the stairwell, and observed
the area through binoculars. He testified that he observed Jones
make what appeared to be a drug transaction in the hallway by the
stairwell. Officer Cutler observed Jones take something from a
"stash" (that was later confirmed to contain small ziplock bags
of heroin) and exchange it with another man (the "buyer") for
U.S. currency. Jones then left the building, leaving the "stash"
behind. Officer Cutler testified that he radioed Officer Garvin
to detain the buyer, but the buyer (and whatever he may have
purchased from Jones) was never located. Officer Cutler directed
Officer Garvin to detain Jones, who was arrested outside 651
Morton Street. He did not have any contraband in his possession.
Jones did have $25.00 in cash.
Officer Cutler testified that two weeks prior to the incident
which forms the basis of the charges in this case, he observed
Jones in the hallway of 651 Morton Street. On that occasion, he
observed Jones holding a small plastic bag in his hand, talking
to a man with currency in his hand. When the two men saw Officer
Cutler, they fled the scene. Officer Cutler testified that on May
26, 1998, while in plainclothes, Jones offered something called
"Party with the stars" to Cutler. Upon seeing Cutler's police
radio, Jones again fled the scene. Cutler testified that "Party
with the stars" is a brand name of heroin.
Detective Brown was called by the government as an expert
witness on the use, distribution, packaging, and pricing of
narcotics in the District of Columbia. Detective Brown was asked
to testify about his experiences with the Metropolitan Police
Department as a "resident narcotics expert." As noted, defense
counsel stipulated to Detective Brown's qualifications. (Tr.
5-26-99 at 3A-2-3).
Detective Brown testified about the weight of the seized drugs,
how they were diluted, their brand names, and the use of small
ziplock bags for retail distribution. He stated that "Partying
with the stars" is a brand name of heroin sold in Washington D.C.
He testified that drug dealers rarely carry narcotics on their
persons (fearing police detainment or assaults from drug users),
but rather use a hidden stash from which to make transactions.
Detective Brown also described how typical heroin users would not
buy "in bulk" but rather would purchase one or two small bags at
a time. Finally, he testified that each of the small bags seized
from the stairwell of 651 Morton Street would sell for $20 to $25
on the street. (Tr. 5-26-99 at 3A-9-16).
Jones was convicted on the single count of possession with
intent to distribute heroin. Two months later, on July 23, 1999,
an article in the Washington Post reported that Detective Brown
had resigned from the Metropolitan Police Department "amid
allegations that he has lied under oath about his credentials."
Bill Miller, Accused of Perjury, Police Expert Resigns,
Washington Post, July 23, 1999, at B 1. The article relates that
in a civil deposition, Brown testified that he had a doctorate in
pharmacology from Howard University, and that it was later shown
that he held no such degree from that institution. The government
has confirmed in a report to the Court that Detective Brown does
not hold a bachelor's degree from Howard University, nor a
master's or doctorate degree in pharmacology from Howard. The
government does not suggest that Brown holds any of those degrees
from other institutions.
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 ...