Brian K. GILLIAM, John A. Daniels, and Ronald L. English, Appellants,
UNITED STATES, Appellee.
Argued Jan. 25, 2013.
[Copyrighted Material Omitted]
Montrell L. Scaife for appellant Brian Gilliam.
Thomas T. Heslep, Washington, DC, for appellant John Daniels.
Jonathan W. Anderson, Public Defender Service, with whom James Klein, Public Defender Service, was on the brief, for appellant Ronald English.
Anne Y. Park, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, Roy W. McLeese III, Assistant United States Attorney at the time the brief was filed, and John P. Mannarino and S. Vinet Bryant, Assistant United States Attorneys, were on the brief, for appellee.
Before GLICKMAN, FISHER and OBERLY, Associate Judges.
GLICKMAN, Associate Judge:
Early on the morning of January 5, 2006, a shooting on 37th Street in Southeast Washington, D.C., left a man named Anthony Knight dead and two others injured. The government prosecuted appellants Gilliam, Daniels, and English for the crimes, charging them with conspiracy to murder Knight and with his first-degree murder while armed along with two counts of assault with intent to kill while armed and related firearms offenses. The case against appellants rested on the credibility of Byron Holmes, an unindicted coconspirator who had agreed to testify against appellants as part of his plea agreement. According to Holmes, appellants pursued Knight after he left a nightclub in Maryland. Holmes claimed that, after splitting up in Maryland, he and appellants reunited in the District at appellant English's
house, armed themselves, and proceeded to 37th Street, where they found Knight and gunned him down.
No one other than Holmes identified appellants as the perpetrators of Knight's murder. Appellants denied having anything to do with it and claimed that Holmes was shielding his actual accomplices. The jurors had difficulty deciding the case— they deliberated for four days, sent three notes indicating they could not agree, and received an anti-deadlock instruction before they reached their verdict. In the end, the jury acquitted appellants of the murder and assault charges but found each of them guilty of conspiracy to murder Knight  and carrying a pistol without a license (CPWL).
Appellants challenge their convictions on multiple grounds. Without having to address all of their claims of error, we conclude that appellants are entitled to a new trial in this close case because they were denied a brief continuance to call a witness who could have rebutted a key element of Holmes's testimony-his assertion that he and appellants met up in the District to arm themselves for Knight's murder.
I. Evidence at Trial
A. The Government's Case
1. The Testimony of Byron Holmes
Byron Holmes was the government's crucial witness. He testified that he knew appellants from the 17th Street S.E. neighborhood where he grew up and had been friends with them for several years before Anthony Knight's murder. Knight was not from their neighborhood, but they all knew him. He was a member of a 37th Street crowd that they often encountered at the Tradewinds Club, a nightclub in Maryland. There was, Holmes explained, a history of hostility between the two neighborhoods. On a recent visit to Tradewinds, 37th Streeters had given Holmes and appellants " jealous looks" ; on another occasion, appellant Daniels had told Holmes, they had watched Daniels and followed him around the club.
On the evening of January 4, 2006, Holmes and Daniels decided to go to a concert at the Tradewinds Club. They drove to the club in Holmes's Chevy Tahoe. Holmes took a Bryco Arms 9mm semiautomatic pistol with him " for protection." At Tradewinds they met up with appellants Gilliam and English, who had driven there in Daniels's green Cadillac. Knight and some of his 37th Street friends were present at the club as well. Holmes noticed Knight and Daniels " mugging" or exchanging " funny" looks.
When the club closed at around 2 a.m., everyone left. Knight departed in a gold-colored Cadillac. Gilliam went with Daniels in the latter's car while English left with Holmes. Holmes gave his handgun to English, who commented disparagingly on Knight's " mugging." As the two vehicles in which appellants and Holmes were riding came to the intersection of Branch Avenue and Silver Hill Road in Maryland, Holmes heard gunshots and felt something bump the rear of his SUV. Yelling " that's them," English jumped out with Holmes's gun in his hand. Holmes heard more gunshots and saw Daniels's car pursuing an " eggshell-colored" Cadillac down Silver Hill Road, with English chasing them on foot. The Cadillac was not the one Knight had driven off in, but it was the same
color, and appellants allegedly mistook it for Knight's vehicle. Holmes, who had stopped his SUV and remained inside it, soon lost sight of Daniels's car. After the shooting ended, Holmes went to pick up English on Silver Hill Road. English, who had shot at the fleeing Cadillac with Holmes's gun, allegedly directed Holmes to take him home so he could retrieve his own firearm.
Holmes testified that as he arrived at English's house at 18th and A Streets, S.E., he received a call on his cell phone from Daniels. Daniels wanted to know where Holmes and English were so that he and Gilliam could rejoin them. Holmes claimed he told Daniels they were in the alley behind 18th and A.
When Daniels drove up a few minutes later, Holmes saw that the front of Daniels's car was damaged. Daniels explained that he accidentally had rammed the back of Holmes's Tahoe when " they were shooting." English, accompanied by Gilliam, went into his backyard and returned carrying a book bag. Daniels retrieved two boxes of ammunition from his car and appellants piled into Holmes's Tahoe. All four men were armed: Holmes had his Bryco 9mm pistol, Daniels had a .40 or .45 caliber handgun, and English withdrew a MAC-10 semiautomatic handgun from his book bag for himself and a gun for Gilliam. Holmes could not see the gun Gilliam received from English, but he heard Gilliam cock and load it.
Holmes drove the three men to 37th Street. At the intersection of 37th and Ely Streets, he observed a gold-colored Cadillac stopped in the street near a pickup truck. A few people were standing next to the two vehicles. Anthony Knight was one of them. At that point, English said " [t]hat was them" and began firing out the window. English then jumped out, followed by Daniels and Gilliam, while Holmes remained sitting at the wheel of his SUV awaiting their return. Holmes heard more shooting. The gold Cadillac started to drive away and Holmes fired at it. When the shooting ceased, he looked back and saw Gilliam and English kneeling down and Daniels standing near them. Appellants then got back into his SUV and told Holmes to " go, go, go, go."
Holmes drove back to 18th and A Streets. On the way, he saw English and Daniels reload their guns and heard Gilliam do the same with his. In the alley behind English's house, before the four men split up, they cleaned out the Tahoe. English told Holmes that he and Knight had exchanged gunfire, and that when he ran out of bullets after wounding Knight, Daniels and Gilliam were " right there to finish him off."  Later that day, Holmes met again with English and Daniels. Daniels said he had lost his ID and asked whether Holmes had seen it; Holmes had not.
Holmes was arrested in November 2006. When questioned by detectives, he initially denied any involvement in Knight's murder, but under further interrogation Holmes eventually confessed and implicated appellants. Holmes also showed the police where he had hidden his gun (the Bryco) and they recovered it. He subsequently pleaded guilty to second-degree murder and conspiracy to murder and agreed to testify against appellants. Holmes was awaiting his sentencing when he took the stand at appellants' trial.
2. Other Evidence
Although Holmes was the only witness at trial who could identify appellants, other witnesses corroborated aspects of his testimony. The driver of the Cadillac attacked on Branch Avenue testified that he was shot at by a man in the passenger seat of a green Cadillac STS, and the owner of a car repair shop testified that Daniels brought his dark green Cadillac STS in on January 5, 2006, for repair of damage to its front. A witness to the Branch Avenue shooting described the man she saw jump from a truck and the passenger she saw shooting a gun out the window of a green car. To some extent her descriptions of the two men and their vehicles matched the appearances of English, Gilliam (though he offered evidence to the contrary), Holmes's Tahoe, and Daniels's Cadillac (though the witness thought the car she saw was a Honda Civic).
None of the surviving witnesses to the shootings on 37th Street could describe the attackers. However, a wallet containing Daniels's driver's license and other identification was found lying in the street by one of the first police officers to arrive at the scene. The government also presented evidence that some of the bullets and cartridge cases recovered at the scene of the 37th Street shooting had been matched to a MAC-10 seized two months later when police stopped a car that English was driving.
B. Defense Cross-Examination and Evidence
Appellants claimed they were not present when Knight was killed and were being scapegoated for a murder that Holmes actually committed with other individuals.  Appellants cross-examined Holmes vigorously. They impeached him with the lies and inconsistencies in the stories he told the police following his arrest, and they explored Holmes's motive to curry favor with the government in order to secure the benefits of his plea agreement, i.e., a reduced sentence. Holmes admitted that the police had pressured him and promised him leniency. He agreed that the detectives, unhappy with his initial answers, began to " feed" him " details about their version of the event" and were the first to suggest that appellants were the perpetrators. Holmes confirmed that it was a detective who suggested the outlines of the story he eventually told (" And then she tells you, look, you could simply have been giving some friends a ride and it went haywire; right?" ).
Before Holmes implicated appellants, he gave the detectives interrogating him the name of another friend from the 17th Street neighborhood, James " Whitey" ...