The opinion of the court was delivered by: Richard W. Roberts United States District Judge
MEMORANDUM OPINION AND ORDER
After being found guilty of narcotics offenses, unlawful use of a communications facility, and aiding and abetting first degree murder while armed, David Wilson filed a motion for judgment of acquittal, and a motion for a new trial alleging that the government failed to disclose exculpatory Brady material and that the government sponsored false testimony. Because the evidence when viewed in the light most favorable to the verdict permitted a reasonable jury to find the essential elements of all the offenses of which Wilson was convicted except for Count 11, his motion for judgment of acquittal will be granted in part and denied in part. Further, because the testimony was not demonstrably false and neither that nor the undisclosed information could reasonably have affected the outcome or the fairness of the trial, Wilson's motion for a new trial will be denied.
Wilson was tried along with five other defendants on a 58-count indictment alleging a narcotics conspiracy among members of the Congress Park Crew and related violations. The jury found Wilson guilty as to some of the charges of unlawful distribution of crack cocaine (Counts 4, 6, 11, 16, 18, 19, 20, and 21), unlawful use of a communication facility (Count 55), and aiding and abetting the first-degree murders of Sabrina Bradley and Ronnie Middleton (Counts 31 and 33). During a ten and one-half-month trial, the government introduced testimony from FBI agents, experts, witnesses who had pled guilty under cooperation agreements with the government, and other witnesses; tape and video recordings; and physical evidence. Viewed in the light most favorable to the verdict, the government's evidence established the following facts.
Wilson sold crack cocaine in the Congress Park neighborhood of Southeast Washington, D.C. On at least seven occasions, he sold crack cocaine to witnesses cooperating with the Federal Bureau of Investigation. One of those cooperating witnesses, Sandra White, was a crack addict who lived in the Congress Park neighborhood for a number of years. In March or May of 2000, she purchased three ten-dollar quantities ("dimes") of crack from Wilson for $25. (Trial Tr., Mar. 12, 2007 p.m. at 2516, 2519; Mar. 13, 2007 p.m. at 2713-17.) On June 28, 2000, White purchased twenty dimes of crack from Wilson for $200. (Id. at 2527-28.) On October 17, 2000, though, she entered Wilson's apartment in Congress Park, where Wilson's co-defendant Desmond Thurston weighed crack on a scale, and she bought the crack from Thurston. (Id. at 2536-37; see infra n.2.)
Season Wood grew up with Wilson and later sold drugs in Congress Park as well. (Trial Tr., Feb. 28, 2007 a.m. at 859-61.) In September 2000, Wood was arrested and began cooperating with the FBI. (Id. at 883-85.) On January 24, 2001, Wilson sold 10.9 grams of crack to Wood for $600. (Id. at 885-892; Feb. 28, 2007 p.m. at 904-05; May 2, 2007 a.m. at 9549.) On February 14, 2001, Wood arranged with Wilson to purchase an ounce of crack from him. (Trial Tr., Feb. 28, 2007 p.m. at 920-22.) However, Wilson did not have enough crack to satisfy Wood's request. Wilson telephoned an associate, Larry Browne, asking Browne to obtain more powder cocaine so that Wilson could satisfy Wood's order (id. at 926-28; Trial Tr., Mar. 5, 2007 a.m. at 1416), and to purchase baking soda. Wood furnished both, and an unidentified person used the baking soda to cook the powder cocaine into crack. (Trial Tr., Feb. 28, 2007 p.m. at 926-933; Mar. 5, 2007 a.m. at 1431.) Wood gave Wilson $1,200 for 19.4 grams of the newly cooked crack cocaine. (Trial Tr., Feb. 28, 2007 p.m. at 920-22, 933; Mar. 22, 2007 p.m. at 3972.)
Gail Parsons moved to Congress Park in 1991, and became addicted to crack. (Trial Tr., Mar. 6, 2007 p.m. at 1809-10.) After she was arrested and charged with narcotics offenses, Parsons began cooperating with the FBI. (Id. at 1818-19.) On March 20, 2001, Parsons purchased a .52 gram piece of crack from Wilson for $80. (Trial Tr., Mar. 7, 2007 a.m. at 1933-34; Mar. 12, 2007 p.m. at 2362; Mar. 22, 2007 p.m. at 4008-09.) On April 5, 2001, Parsons purchased 1.9 grams of crack from Wilson for $200. (Trial Tr., Mar. 7, 2007 p.m. at 1953-54; Mar. 12, 2007 a.m. at 2364-65; Mar. 22, 2007 p.m. at 4008-09.) Additionally, on April 26, 2001, Darlene Irving, another cooperating witness, purchased 2.8 grams of crack from Wilson for $100. (Trial Tr., Mar. 28, 2007 a.m. at 4679, 4685-86; July 10, 2007 p.m. at 17107.)
Wilson was particularly close with one of his associates, Maurice Doleman, whose mother helped to care for Wilson when he was growing up. (Trial Tr., Mar. 29, 2007 p.m. at 5089.) Doleman robbed the girlfriend of a member of the 1-5 Mob, a rival gang operating in an area next to Congress Park, and robbed the girlfriend's uncle. (Id. at 5088.) In 1993, as retaliation, the gang member paid Ronnie Middleton, another member of the 1-5 Mob, to kill Doleman. (Id. at 5081.) That same year, Doleman was shot and killed, and members of the Congress Park group, including Wilson, believed that Middleton was the person who shot Doleman. (Id. at 5075-81.) After the murder, Wilson committed himself to killing Middleton to avenge his friend. (Id. at 5095.)
In the early morning of August 17, 1998, Wilson and two other members of the Congress Park group, Antonio Roberson and Antoine Draine, spotted Middleton sitting in his car, a Ford Bronco. (Trial Tr., Apr. 2, 2007 a.m. at 5138, 5145.) Also sitting in Middleton's car were his girlfriend, Sabrina Bradley, and a third individual nicknamed Teeny Man. (Trial Tr., June 7, 2007 a.m. at 14572-73.) After seeing Middleton in his car, Wilson drove to Roberson's house to obtain a .9mm Glock handgun. (Trial Tr., Apr. 2, 2007 a.m. at 5138-40.) Wilson, Roberson, and Draine returned to where Middleton had parked the car, and Roberson opened fire with the gun on the Bronco. (Trial Tr., Mar. 29, 2007 p.m. at 5112-15.) Teeny Man escaped from the car by jumping out a window, but both Middleton and Bradley were wounded. (Id.) Middleton sped off in the car with Bradley to the Metropolitan Police Department 7th District building, where Detective Thomas Webb spoke briefly with Middleton about the shooting. (Trial Tr., June 7, 2007 p.m. at 14635-38.) Rescue workers took Middleton and Bradley to D.C. General Hospital, where they both died as a result of the gunshot wounds they sustained. (Id. at 14663-64.)
During the trial, Wilson moved for a mistrial, or in the alternative, to dismiss Counts 31-34 of the superseding indictment, arguing that the government late disclosed evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). In a separate motion, Wilson again moved for a mistrial, contending that the government failed to correct the false testimony of witness Damien Green in violation of Napue v. Illinois, 360 U.S. 264 (1959). After the government rested, Wilson moved for a judgment of acquittal on all counts. The motion was granted with respect to a crack sale alleged in Count 7, to all other counts. Post-trial, Wilson now renews his motion for a judgment of acquittal with respect to all counts on which he was convicted, and his motion to dismiss Counts 31 and 33.*fn1 Wilson also moves for a new trial on Counts 31 and 33 as an alternative remedy for the alleged Brady and Napue violations, and he has supplemented that motion citing additional evidence that the government failed to disclose as additional Brady violations.
I. MOTION FOR JUDGMENT OF ACQUITTAL
In reviewing a post-verdict motion for judgment of acquittal, a court must look at the entire record, United States v. Byfield, 928 F.2d 1163, 1166 (D.C. Cir. 1991), and "must view the evidence in the light most favorable to the verdict," United States v. Campbell, 702 F.2d 262, 264 (D.C. Cir. 1983), according the verdict "the benefit of all legitimate inferences[.]" United States v. Singleton, 702 F.2d 1159, 1163 (D.C. Cir. 1983). "The evidence in question 'need not exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt.'" United States v. Morrow, Criminal Action No. 04-355 (CKK), 2005 WL 1389256, at *4 (D.D.C. June 13, 2005) (quoting United States v. Maxwell, 920 F.2d 1028, 1035 (D.C. Cir. 1990)). "No distinction is made between direct and circumstantial evidence in evaluating the sufficiency of evidence supporting a guilty verdict." Maxwell, 920 F.2d at 1035. The trial court must give "'full play to the right of the jury to determine credibility, weigh the evidence and draw justifiable inferences of fact.'" United States v. Treadwell, 760 F.2d 327, 333 (D.C. Cir. 1985) (quoting United States v. Davis, 562 F.2d 681, 683 (D.C. Cir. 1977)). The jury's determination will stand unless no reasonable trier of fact could have found all the essential elements of the offense beyond a reasonable doubt when considering the evidence in the light most favorable to the verdict. See United States v. Alexander, 331 F.3d 116, 127 (D.C. Cir. 2003); Morrow, 2005 WL 1389256, at *3.
The jury convicted Wilson of unlawful distribution of crack cocaine in Counts 4, 6, 11, 19, 20, and 21, and unlawful distribution of five grams or more of crack cocaine in Counts 16 and 18. To prove unlawful distribution, the government had to prove that Wilson knowingly and intentionally distributed a mixture or substance containing a detectable amount of cocaine base, known as crack cocaine. See 21 U.S.C. § 841(a)(1); Criminal Jury Instructions for the District of Columbia § 6.202 (5th ed. revised 2009). For Counts 16 and 18, the government also had to prove that the amount was five grams or more of crack cocaine. Wilson argues that the government did not prove that the substances were crack. (Def.'s Mot. for Consideration of Still Pending Mots. for a New Trial & for J. of Acquittal ("Def.'s Mot.") at 4.)
The D.C. Circuit has concluded that the government "may prove that cocaine base is crack cocaine in a variety of ways." United States v. Pettiford, 517 F.3d 584, 593 (D.C. Cir. 2008). Evidence of smokability is not required to prove that the substance is smokable crack. Id. at 594. For example, testimony that the seized substance was rock-like and off-white or yellowish in color; testimony by a chemist that it was 83% cocaine base; testimony by the seizing officer, experienced in crack cases, that the substance was crack; and testimony by an expert in the packaging and distribution of controlled substances that a photograph of the seized material showed crack and not powder cocaine is sufficient evidence to enable a jury to conclude that a substance is crack. Pettiford, 517 F.3d at 593 (internal quotation marks omitted) (citing United States v. Powell, 503 F.3d 147, 148 (D.C. Cir. 2007)). United States v. Baugham, 449 F.3d 167, 183 (D.C. Cir. 2006), affirmed a conviction supported by evidence that crack was a slang term for cocaine base, that the officer could distinguish between crack and powder cocaine, that the substance recovered in numerous ziploc bags had a white rock appearance, and that the defendant had a reputation as a crack dealer.
Here, the government presented testimony from cooperators who described their transactions with Wilson, FBI agents who discussed the substances retrieved from cooperators after controlled purchases, and chemists who stated the type, purity level, weight, and appearance of the substances. For Counts 16 and 18, Season Wood testified that on January 24, 2001, he purchased four 3.5-gram quantities ("eight-balls") of crack cocaine from Wilson for $600 (Trial Tr., Feb. 28, 2007 a.m. at 874, 885-92; Feb. 28, 2007 p.m. at 904-05), and that on February 14, 2001, he purchased crack cocaine from Wilson for $1,200. (Trial Tr., Feb. 28, 2007 p.m. at 920, 933.) Wood also testified that on February 14, 2001, he purchased for Wilson baking soda, which can be used to make crack, and that the crack he purchased from Wilson was wet and appeared as if it recently had been cooked. (Id. at 927-32.) Larry Browne also testified that on February 14, 2001, he gave cocaine powder to Wilson, watched people cook the cocaine powder into crack, and saw Wilson sell twenty-three grams of crack for $1,200 to a person he later came to know as Season Wood. (Trial Tr., Mar. 5, 2007 a.m. at 1431-42.) Agent Robert Lockhart identified the white rock substances that were recovered from Wood after the controlled purchases on January 24, 2001 and February 14, 2001 as crack cocaine. (Trial Tr., Mar. 21, 2007 p.m. at 3656-58, 3666-68.) Lockhart also testified that he had law enforcement experience with controlled purchases involving crack. (Trial Tr., Feb. 22, 2007 p.m. at 259.) For Count 16, chemist Gwynn Reel testified that the substance weighed 10.9 grams and contained cocaine base with a purity of 73%. (Trial Tr., May 2, 2007 a.m. at 9548-49.) For Count 18, chemist Minh Dang testified that the substance weighed 19.4 grams and contained cocaine base with a purity level of 52%. (Trial Tr., Mar. 22, 2007 p.m. at 3972.) Dang also testified that crack cocaine was the "street" term for cocaine base and that the cocaine base he analyzed in this case had a rock-like form. (Trial Tr., Mar. 22, 2007 p.m. at 3962, 3964.)
For Counts 19 and 20, Gail Parson testified that she purchased a piece of crack cocaine from Wilson for $80 (Trial Tr., Mar. 7, 2007 a.m. at 1933-34) and that she purchased dimes of crack cocaine from Wilson for $200. (Trial Tr., Mar. 7, 2007 p.m. at 1953-54.) Agent Kyle Fulmer testified that he recognized Wilson's voice on audio recordings of those controlled purchases and retrieved white rock substances from Parson after the purchases on March 20, 2001 and April 5, 2001. (Trial Tr., Mar. 12, 2007 a.m. at 2362-65.) For Count 19, Dang testified that the substance weighed .52 grams and contained cocaine base with a purity of 53%. (Trial Tr., Mar. 22, 2007 p.m. at 4008-09.) For Count 20, Dang also testified that the substance weighed 1.9 grams, contained cocaine base with a purity of 75%, and was packaged in thirty-two ziploc bags. (Id.)
For Count 4, Sandra White testified that she purchased three dimes of crack cocaine from Wilson for $25. (Trial Tr., Mar. 12, 2007 p.m. at 2519.) When asked by the government whether this transaction occurred on "March 25, 2000," White responded "yes." (Trial Tr., Mar. 12, 2007 p.m. at 2516). Agent Fulmer later testified that, based on police records, the transaction in Count 4 occurred on "May 25, 2000." (Trial Tr., Mar. 13, 2007 p.m. at 2713-17.) While the government introduced conflicting evidence of the transaction date, it is the "right of the jury to determine credibility, weigh the evidence and draw justifiable inferences of fact." Treadwell, 760 F.2d at 333 (internal quotation marks omitted). A reasonable jury could have found that White was testifying about the transaction alleged in Count 4.
To support the conviction on Count 6, White testified that on June 28, 2000 she purchased twenty dimes of crack cocaine, packaged in twenty ziploc bags, from Wilson for $200. (Trial Tr., Mar. 12, 2007 p.m. at 2527-28.)
Agent Fulmer supported White's testimony by testifying that law enforcement collected white rock substances from White after she was sent to make controlled purchases on May 25, 2000 and June 28, 2000. (Trial Tr., Mar. 13, 2007 p.m. at 2713-17, 2723-24.) For Counts 4 and 6 respectively, Dang testified that the substances from White's transactions were .21 grams containing cocaine base with a purity level of 86% and packaged in three ziploc bags, and 1.4 grams containing cocaine base with a 91% purity level and packaged in twenty ziploc bags. (Trial Tr., Mar. 22, 2007 p.m. at 3995, 3998.)
For Count 21, Darlene Irving testified that on April 26, 2001 she purchased "coke" from Wilson and had discussed with Wilson whether to take the substance in "one big rock" or in dimes. (Trial Tr., Mar. 28, 2007 a.m. at 4685-86.) Dang testified that the substance from the April 26, 2001 purchase was 2.8 grams containing cocaine base at 81% purity level. (Trial Tr., July 10, 2007 p.m. at 17107.) Lockhart identified a photograph of drugs recovered from Irving's April 26, 2001 purchase and testified that the photograph depicted crack cocaine packaged in multiple ziploc bags. (Trial Tr., July 12, 2007 a.m. at 17440-41.) Viewing all of this evidence in the light most favorable to the government, a reasonable jury could have concluded that Wilson knowingly and intentionally distributed crack cocaine as alleged in Counts 4, 6, 16, and 18 through 21.
For Count 11, White testified that she gave money to Desmond Thurston in exchange for cocaine*fn2 on October 17, 2000. (Id. at 2536-37.) Although it was not Wilson who actually sold White the drugs, Count 11 charged Wilson with violating 18 U.S.C. § 2, aiding or abetting in the distribution of crack. Under an aiding and abetting theory, the government must show "'(1) the specific intent to facilitate the commission of a crime by another; (2) guilty knowledge on the part of the accused; (3) that an offense was being committed by someone; and (4) that the accused assisted or participated in the commission of the offense.'" United States v. Washington, 12 F.3d 1128, 1136 (D.C. Cir. 1994) (quoting United States v. Harris, 959 F.2d 246, 262 (D.C. Cir. 1992), abrogated on other grounds by United States v. Stewart, 246 F.3d 728, 732 (D.C. Cir. 2001)). The government must "'show some affirmative participation which at least encourages the principal offender to commit the offense[.]'" United States v. Kelly, 552 F.3d 824, 831 (D.C. Cir. 2009) (quoting United States v. Monroe, 990 F.2d 1370, 1374 (D.C. Cir. 1993)). White testified that the drug transaction occurred in Wilson's apartment, that Thurston measured the cocaine on a scale in the apartment, and that Wilson was with Thurston in the apartment's bedroom just prior to Thurston completing the drug sale. (Trial Tr., Mar. 12, 2007 p.m. at 2536-37.) This evidence, viewed in the light most favorable to the verdict, merely shows Wilson's presence at the scene but does not support any affirmative participation by Wilson in the offense or prove that his mere presence was intended to help in the commission of the offense.*fn3
The government has not cited any additional evidence that establishes that Wilson encouraged Thurston to conduct the sale, and Wilson's motion for judgment of ...