The opinion of the court was delivered by: Paul L. Friedman, District Judge.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the defendant's motion pursuant to
28 U.S.C. § 2255, to vacate, set aside and correct sentence.
Defendant's primary argument is that the government's expert witness in
this case, Detective Johnny St. Valentine Brown, was found guilty of
perjury for misrepresenting his credentials as an expert while testifying
under oath at a deposition in a civil case on June 22, 1999, and that the
failure of the government to disclose that fact or to have taken steps to
learn of Detective Brown's similar misrepresentations in the past is a
violation of either Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10
L.Ed.2d 215 (1963), or United States v. Agurs, 427 U.S. 97, 96 S.Ct.
2392, 49 L.Ed.2d 342 (1976). Upon careful consideration of the motion,
the government's opposition and the defendant's reply, the Court finds no
merit to the defendant's argument and denies the motion.
On September 5, 1996, the defendant was indicted for (1) possession of
a firearm by a convicted felon, and (2) possession of ammunition by a
convicted felon, both in violation of 18 U.S.C. § 922 (g)(1) (Counts
One and Two); (3) possession of a semiautomatic assault weapon, in
violation of 18 U.S.C. § 922 (v)(1) (Count Three); (4) possession
with intent to distribute cocaine within 1,000 feet of a school, in
violation of 21 U.S.C. § 860 (a) (Count Four); and (5) possession
with intent to distribute cocaine, in violation of 21 U.S.C. § 841
(a)(1), (b)(1)(C) (Count Five). Following a jury trial, the jury returned
guilty verdicts on all five counts on February 23, 1997. On April 25,
1997, the Court sentenced the defendant to 92 months imprisonment on
Counts One, Two and Four, to be served concurrently to each other, and to
60 months imprisonment on Count Three, to run concurrently with all other
counts. The Court dismissed Count Five because it was a lesser-included
offense of Count Four.
The defendant appealed and, on July 28, 1998, the United States Court
of Appeals for the District of Columbia Circuit reversed the defendant's
conviction for possession of a semi-automatic assault weapon (Count
Three) and reversed and remanded his conviction for possession with
intent to distribute crack cocaine within 1,000 feet of a school (Count
Four) because the prosecutor had been permitted to ask a defense witness
a series of inappropriate questions on cross-examination. See United
States v. Spinner, 152 F.3d 950 (D.C.Cir. 1998). The remaining
convictions for possession of a firearm by a convicted felon (Count One)
and possession of ammunition by a convicted felon (Count Two) were
affirmed. Id. at 962.
On October 22, 1998, the Court resentenced the defendant to 84 months
imprisonment on Count One and 84 months on Count Two, the sentences to
run concurrently with each other, followed by three years supervised
release. On the oral motion of the government, Counts Three and Four were
dismissed. Thus, the only counts of which the defendant remains convicted
are possession of a firearm by a convicted felon and possession of
ammunition by a convicted felon.
The facts developed at trial are quite fully set out in the Court of
Appeals' opinion in this case and in defendant's motion and the
government's opposition. Suffice it to say that there was substantial
evidence of the defendant's guilt of the firearms and ammunition charges
from numerous fact witnesses. Detective Brown was not a fact witness and
testified solely as an expert with respect to the use, distribution,
packaging, pricing and sale of narcotics. To qualify Detective Brown as an
expert, the government asked him about his experience as a narcotics
officer and his prior testimony as an expert witness on hundreds of
occasions. He was not asked and did not testify about his supposed Howard
University degree in pharmacy or his supposed license as a pharmacist. He
testified only about his "practical street experience." Detective Brown
specifically testified that he was not involved in the execution of the
search warrant in this case and had no first-hand knowledge of the
facts. While he did testify briefly about the relationship between drugs
and guns, he was not offered as an expert on guns or ammunition but
solely with respect to the use, distribution, packaging, pricing and sale
of narcotics.
The defendant is not entitled to relief under Brady v. Maryland because
the government did not suppress or withhold information about Detective
Brown's perjury in the civil case. It is undisputed that Detective Brown
did not commit perjury in that civil case until more than two years after
the defendant's trial in this case. Nor, the government represents
without contradiction, did the government possess information about
Detective Brown's possible perjury concerning his academic credentials or
pharmacy license in other cases. Because such information was not in the
government's possession at the time of trial, the government could not
have disclosed it. Accordingly, there was no Brady violation. Compare
United States v. Cuffie, 80 F.3d 514, 517 (D.C.Cir. 1996) (government
knew of prior perjury and did not disclose).
Even if one accepts the notion that the government "should have known"
about the perjured testimony that presumably took place in other cases,
or should have taken steps to learn about it, the Court would not grant
the defendant's motion because the Court cannot conclude that the jury's
verdict would have been any different even had the jury known about
Detective Brown's perjury in other cases. First, as noted, Detective
Brown was not a fact witness but an expert on narcotics who testified
about the use, distribution, packaging, pricing and sale of narcotics,
not about guns. Furthermore, the issue in this case was whether the
defendant had sufficient connection to the house and to the rooms in
which the guns, the ammunition and the drugs were found; it was a case
about possession and not about the intent with which the defendant
possessed the drugs. Detective Brown's testimony therefore was not
critical to the jury's finding of guilt. In any case, the narcotics
conviction was reversed on appeal and therefore, assuming the jury
followed the Court's instruction to consider each count of the indictment
separately, Detective Brown's testimony should have had no bearing on the
jury's consideration of Counts One and Two at all.
Second, Detective Brown did not perjure himself in this case. He was
never asked about nor did he testify about his academic credentials and
thus, unlike the situation presented in the civil case, he never had the
opportunity to say (falsely) that he had received a degree in pharmacy at
Howard University or that he was a licensed pharmacist. There was no
false testimony before this jury. Finally, Detective Brown's role was not
material in view of the numerous fact witnesses who testified about the
execution of the search warrants, the location of the items seized and
the fingerprint evidence linking the defendant to the contraband —
matters about which he acknowledged he had no knowledge. Compare United
States v. Cuffie, 80 F.3d at 517-18. In sum, the defendant has not
established that Detective Brown testified falsely in this case or that
his testimony was material to defendant's conviction.
As for defendant's argument under United States v. Agurs, 427 U.S. 97,
96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), that the government somehow should
have known that Detective Brown perjured himself on prior occasions and
should suffer the consequences for not knowing, the law does not support
the grant of relief on this basis. "[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 judgment of the jury." United States v. Agurs,
427 U.S. at 103, 96 S.Ct. 2392; see also Napue v. Illinois, 360 U.S. 264,
269-72, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); United States v. Burch,
156 F.3d 1315, 1328-29 (D.C.Cir. 1998), cert. denied, 526 U.S. 1011, 119
S.Ct. 1155, 143 L.Ed.2d 220 (1999). In this case, however, no false
testimony was presented at all, let alone knowingly. Detective Brown did
not testify under oath about his academic credentials or his supposed
status as a licensed pharmacist, and the defendant has not established
that any of Detective Brown's trial testimony in this case was false.
Since Detective Brown did not testify about his credentials — the
subject matter about which he lied during his civil deposition two years
after the trial in this case — and because the jury did not hear
any false testimony from Detective Brown, the defendant's Agurs argument
falls.
Both Judge Hogan and Judge Harris have considered post-trial motions in
cases where it was established that Detective Brown in fact testified
falsely about his academic credentials and where defendants were
convicted of narcotics offenses, Judge Hogan on a motion for new trial
and Judge Harris on a motion to vacate, set aside or correct sentence
under 28 U.S.C. § 2255. In view of the strength of the evidence
before each of them, however, and the lack of materiality of Detective
Brown's testimony to the convictions, both judges denied the motions
before them. As Judge Harris said:
Detective Brown was an expert, not a fact, witness,
and petitioner does not point to how Detective Brown's
testimony was "extraordinarily material." Second, the
strong direct evidence that defendant committed the
charged offenses was sufficient readily to convince
not just one, but two successive juries of defendant's
guilt. Furthermore, the fact that Detective Brown
falsified his credentials does not detract from the
knowledge of how drug dealers operate that he gained
during his extensive law enforcement and street
experience.
For these reasons, the defendant's motion pursuant to
28 U.S.C. ยง 2255 to vacate, set aside and correct sentence ...