United States v. Oruche, Sorenson

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 22, 2007 Decided May 4, 2007

No. 06-3100

UNITED STATES OF AMERICA,

APPELLANT

v.

SORENSON O. ORUCHE,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 01cr00287-01)

Florence Y. Pan, Assistant U.S. Attorney, argued the cause

for appellant. With her on the briefs were Jeffrey A. Taylor,

U.S. Attorney, and Roy W. McLeese, III, Kenneth F. Whitted,

and T. Anthony Quinn, Assistant U.S. Attorneys.

Michael V. O'Shaughnessy argued the cause for appellee.

With him on the brief was Mary C. Kennedy.

Before: HENDERSON, ROGERS and BROWN, Circuit Judges.

Opinion for the Court filed by Circuit Judge BROWN.

BROWN, Circuit Judge: The government charged appellee

2

Sorenson O. Oruche with one count of conspiracy to possess

(with intent to distribute) and to distribute heroin, see 21 U.S.C.

§ 846; four counts of heroin distribution, see id. § 841; and four

counts of interstate travel in aid of racketeering (“ITAR”), see

18 U.S.C. § 1952. The jury convicted Oruche on the conspiracy

count, on three of the heroin-distribution counts, and on one of

the ITAR counts. The jury failed to reach a verdict as to the

remaining counts. Subsequently, the district court granted

Oruche’s motion for a new trial as to all his convictions, finding

Brady violations, see Brady v. Maryland, 373 U.S. 83 (1963)

(Brady), and violations of the Jencks Act, see 18 U.S.C. § 3500.

The government brought this appeal pursuant to 18 U.S.C. §

3731, which authorizes appeal from an order granting a new trial

in a criminal case. We conclude the district court erred and

reverse the new trial order, remanding for further proceedings.

I

In summarizing the trial evidence, we focus on the counts

that resulted in convictions. Count one, the conspiracy count,

was based primarily on evidence offered in support of the other

counts. In support of count two (ITAR), Tequila Williams and

Alvin Ogar testified about a trip they took with Oruche on

September 17, 2000, from Washington, D.C. to New York City.

Williams drove Oruche’s rented Jaguar to an apartment where

Oruche obtained a baseball-sized package of heroin. He called

Williams into the bedroom and directed her to put the heroin in

her purse. Williams did so. Meanwhile, Ogar waited in the

livingroom. Oruche, Williams, and Ogar spent about twenty

minutes at the apartment and then drove back to D.C., leaving

around 11:00 p.m. On the way back, Oruche told Williams he

would “take the beef” if they got pulled over by police. They

arrived in the District early in the morning on September 18,

2000, and Oruche drove to several locations, trying to arrange

a meeting with someone named “Aaron.” After Oruche met

3

with Aaron, he told Williams and Ogar that Aaron would have

killed him if they had not been present.

Count three was a heroin distribution count. Williams and

undercover police officer Robert Arrington testified about this

transaction. Officer Arrington arranged to buy an ounce of

heroin from Williams. On September 21, 2000, Arrington met

Williams in a parking lot and negotiated a price for the heroin.

Williams said she was “waiting for her man” and would be able

to complete the transaction at 3:00 p.m. the same day at a strip

club in the District where Williams worked as a bartender.

Williams left the parking lot and called Oruche, who told her he

was on his way. Officer Arrington arrived at the club at 2:45

p.m. and met with Williams who told him to wait in his car. A

short time later, Oruche arrived in a Jaguar, went inside the club,

and gave Williams the heroin. Williams walked out of the club,

got into Officer Arrington’s car, and sold him 24.1 grams of

heroin for $4,000. Oruche left the club, and Williams later went

to his hotel and gave him the money from the sale. As

corroborating evidence, the prosecution presented audio and

video recordings of Arrington conversing with Williams. In

addition, video recordings showed Oruche entering the club at

3:09 p.m., Williams coming out at 3:18 p.m. to meet with

Arrington, Oruche coming out at 3:22 p.m. and driving away,

and Williams driving away at 3:26 p.m. Evidence of cell-phone

usage also confirmed several calls between Williams and

Oruche on the day of the transaction, including calls at 12:05

p.m., 12:08 p.m., 12:35 p.m., 2:11 p.m., 2:17 p.m., 2:53 p.m.,

3:28 p.m., and 3:45 p.m.

Count five was another heroin distribution count. David

Marley, a paid government informant with a significant criminal

record, and Special Agent Mark Ross from the Drug

Enforcement Administration (DEA) both testified. Marley

became associated with Oruche; Oruche trusted him because

4

they were both African. In May 2001, Oruche solicited Marley

to sell heroin for him. Oruche said he did not want to deal in

amounts less than one hundred grams, which he would sell for

$11,000. Marley contacted Special Agent Ross, and he and

Ross began setting up heroin purchases. On June 12, 2001,

Marley met Oruche in Oruche’s vehicle, while Ross watched

from a distance. Oruche gave Marley 176 grams of heroin and

told Marley he wanted $16,000 in return. After Oruche left,

Ross picked up Marley and took the heroin. Three days later,

Marley went to Oruche’s apartment and gave him $6,000 in pre-

recorded DEA funds, as a partial payment toward the $16,000

purchase price. During this visit, Marley saw five one-hundred-

gram “balls” of heroin lying on Oruche’s bed. On June 26, 2001

and July 3, 2001, Special Agent Ross met directly with Oruche,

paying him first $6,000 and then $4,000 in pre-recorded DEA

funds, thereby satisfying the $16,000 debt owing from the June

12th transaction. As corroborating evidence in relation to this

count, the prosecution presented tape recordings of

conversations between Marley and Oruche.

Count nine was a third heroin distribution count. Marley

and Special Agent Ross testified. On July 16, 2001, Marley

went to Oruche’s apartment and received a portion of a sweater

into which “straws” containing a significant amount of heroin

had been interwoven with the sweater yarn. Oruche asked

Marley to extract the heroin from the sweater. Marley took the

sweater and gave it to DEA officials who later determined it

contained 212.9 grams of heroin (about half a pound). Marley

and Oruche also discussed the removal of the heroin over the

telephone, and this telephone call was recorded. Later the same

day, Special Agent Ross called Oruche, and in a three-way

telephone conversation between Ross, Oruche, and Marley, Ross

told Oruche he wanted to buy two-hundred grams of heroin.

Oruche agreed to make the sale. That evening, law-enforcement

agents arrested Oruche at a rental car office near Union Station.

5

As noted, these counts resulted in convictions. On August

22, 2003, about a year after the convictions, the district court

conducted a “Kastigar hearing” to determine whether the

government had derived any of its evidence from an allegedly

involuntary police interview with Oruche. Cf. Kastigar v.

United States, 406 U.S. 441, 460 (1972) (government has burden

of proving its evidence is not derived from testimony as to

which the defendant had received Fifth Amendment immunity).

At this hearing, held before a different judge than the judge who

presided at Oruche’s trial, prosecutors and law-enforcement

officials testified about a “debriefing” session held with Tequila

Williams shortly after her arrest on December 6, 2000.

Detective Barbara Lyles identified a page of handwritten notes

she had recorded during the debriefing session, along with a

second page on which she had rewritten and expanded the notes

written on the first page. (She claimed to be “almost positive”

she rewrote the notes the same day as the debriefing.) The word

“Tungy” (a name) appears on the first page of notes. Directly

under the word “Tungy” is the word “coke.” To the left of the

word “Tungy”—in the margin and not clearly associated with

the word “Tungy”—is the word “Heroin.” Touching the “T” of

the word “Tungy” is an ambiguous stroke of the pen, shaped like

two sides of a triangle. Oruche argues this stroke of the pen is

an arrow pointing from the word “Heroin” to the word “Tungy.”

The page also includes a few notations in Tequila Williams’s

handwriting. Specifically, Williams wrote three telephone

numbers and also the words “O” and “Girlfriend (Leslie)” on

Detective Lyles’s notes. The prosecution provided these notes

to the defense only a few days before the Kastigar hearing.

On December 2, 2003, the defense filed a motion for a new

trial based on Brady and the Jencks Act, asserting Williams’s

cross-examination could have been much more effective if the

defense had known about Williams’s possible second source for

heroin. This argument gained additional support from an

6

irregularity in Detective Lyles’s testimony at the Kastigar

hearing. Lyles first testified Tungy was in fact a heroin dealer,

and Oruche and Tungy “had a shop off of Upshur Street.” When

asked whether Tungy sold heroin, Lyles answered: “With ‘O,’

yes, sir.” Six months later, Lyles changed her testimony,

submitting a sworn affidavit to the court, explaining Tungy was

a cocaine dealer, not a heroin dealer, and claiming she had

testified incorrectly in this regard because she was mistaken.

Detective Lyles also testified about this mistake in hearings held

before the judge who presided at Oruche’s trial.

The Brady/Jencks Act motion remained unresolved on

December 14, 2004, when the government informed the district

court it had discovered additional impeachment evidence

regarding Tequila Williams. Specifically, the government

eventually produced a transcript of testimony Williams gave to

a grand jury concerning a former boyfriend’s possible

involvement in a murder. In this testimony, Williams implicated

the boyfriend in the murder and admitted she had previously lied

to police in an effort to protect the boyfriend. She testified:

“[My boyfriend] told me not to [tell the truth], and he used to

abuse me, so I thought that he’d probably beat me up or

something.” The government also produced notes of Williams’s

earlier statements to the police, in which Williams denied the

boyfriend’s involvement.

After receiving these additional documents, the defense

renewed its request for a new trial based on Brady and the

Jencks Act, arguing the additional impeachment evidence would

have allowed the defense to characterize Williams as an

admitted liar. In addition, the defense moved to dismiss the

indictment with prejudice due to prosecutorial misconduct.

On May 17, 2005, the district court granted the motion for

a new trial. The court stated the failure to disclose the

7

documents “significantly impaired defense counsel’s ability to

investigate new leads, to further impeach the credibility of a

principal prosecution witness, Tequila Williams, and to make

additional powerful arguments to the jury.” The court found

Detective Lyles’s testimony “contradictory, evasive, oftentimes

hostile” and declined to give it any credit. The court also

suggested Lyles recently had prepared the second page of her

notes from the Williams debriefing in a fraudulent effort to

bolster her changed testimony. The court did not engage in any

detailed analysis of how the defense might have used the

impeachment evidence at trial or how the prosecution might

have responded; rather, the court simply stated: “Since this

Court cannot conclude that Oruche’s trial was fair, this Court

will grant his motion for a new trial, substantially for the reasons

advanced by defense counsel and to avoid a miscarriage of

justice.” The government sought reconsideration, arguing the

undisclosed evidence was not material and would not have

affected the verdict, but the district court denied reconsideration,

repeating that the failure to disclose the documents

“significantly impaired defense counsel’s ability to further

impeach the credibility of a princip[al] witness and to make

powerful arguments to the jury.” The court also denied the

motion to dismiss the indictment.

The government brought this appeal pursuant to 18 U.S.C.

§ 3731.

II

Generally, this court reviews the district court’s grant of a

new trial for abuse of discretion. See United States v. Hall, 324

F.3d 720, 722 (D.C. Cir. 2003); Langevine v. District of

Columbia, 106 F.3d 1018, 1023 (D.C. Cir. 1997). However,

when confronted with a “purely legal question,” our review is de

novo. Hall, 324 F.3d at 722; see, e.g., United States v. Marquez,

8

291 F.3d 23 (D.C. Cir. 2002). Brady claims present something

of a special situation. Thus, as to findings of fact made by the

district court, including determinations of credibility made both

at trial and in post-trial proceedings, this court would defer

under an abuse of discretion standard. See United States v. Sipe,

388 F.3d 471, 478-79 (5th Cir. 2004); United States v. Perdomo,

929 F.2d 967, 969 (3d Cir. 1991); Founding Church of

Scientology of Wash., D.C., Inc. v. Webster, 802 F.2d 1448,

1457 (D.C. Cir. 1986). But once the existence and content of

undisclosed evidence has been established, the assessment of the

materiality of this evidence under Brady is a question of law. In

this inquiry, the question of prejudice is folded into the

determination of whether a violation has occurred. As the

Supreme Court has explained, “strictly speaking, there is never

a real ‘Brady violation’ unless the nondisclosure was so serious

that there is a reasonable probability that the suppressed

evidence would have produced a different verdict.” Strickler v.

Greene, 527 U.S. 263, 281 (1999). Therefore, once a court finds

a Brady violation, a new trial follows as the prescribed remedy,

not as a matter of discretion. See Kyles v. Whitley, 514 U.S.

419, 421-22, 435 (1995).

On review, then, the question is not whether the district

court properly exercised its discretion to order a new trial, but

whether the court properly found a Brady violation. This

distinction makes a Brady ruling different from other new trial

rulings, because “whether the government has breached its

obligations under Brady is a question of law,” subject to de novo

review. In re Sealed Case No. 99-3096 (Brady Obligations),

185 F.3d 887, 892 (D.C. Cir. 1999); see also United States v.

Cuffie, 80 F.3d 514, 517 (D.C. Cir. 1996); United States v.

Lloyd, 71 F.3d 408, 411 (D.C. Cir. 1995). Because the question

is one of law, we can aptly apply here a point we made in a

different context: “‘[l]ittle turns . . . on whether we label review

of this particular question abuse of discretion or de novo,’ for

9

‘[a] district court by definition abuses its discretion when it

makes an error of law.’” Chappell-Johnson v. Powell, 440 F.3d

484, 487 (D.C. Cir. 2006) (alterations in original) (quoting Koon

v. United States, 518 U.S. 81, 100 (1996)).

We review de novo the district court’s finding that the

Jencks Act applies, United States v. Williams-Davis, 90 F.3d

490, 512 (1996), and if we find a Jencks Act violation, we apply

the harmless-error standard to determine whether a new trial is

appropriate, United States v. Lam Kwong-Wah, 924 F.2d 298,

309-10 (D.C. Cir. 1991).

Oruche argues we should review the district court’s

decision for abuse of discretion because the court granted the

new trial “for the reasons advanced by defense counsel and to

avoid a miscarriage of justice.” Oruche reads the district court’s

order as a broad finding of unfairness in the trial due to

“improper conduct, evasive and incredible testimony, and

suppression of material evidence,” and therefore he cites non-

Brady, non-Jencks Act cases emphasizing the wide discretion

the trial court has to grant a new trial. See United States v.

Williams, 113 F.3d 243 (D.C. Cir. 1997); Weil v. Seltzer, 873

F.2d 1453 (D.C. Cir. 1989); Grogan v. Gen. Maint. Serv. Co.,

763 F.2d 444 (D.C. Cir. 1985); Schneider v. Lockheed Aircraft

Corp., 658 F.2d 835 (D.C. Cir. 1981). This argument fails to

appreciate the nature of our review where a Brady claim is the

critical reason for the grant of a new trial. Oruche based his new

trial motion on several asserted irregularities in the trial, not

merely the Brady/Jencks Act issue, but the court’s order

granting a new trial makes clear the court was doing so based on

Brady and the Jencks Act. Significantly, the court cited only

Brady and the Jencks Act (and related cases) in its decision. We

conclude therefore that our review of the district court’s order is

de novo.

10

III

Generally speaking, the Supreme Court’s holding in Brady

v. Maryland requires the government to disclose, upon request,

material evidence favorable to a criminal defendant, including

evidence held by law enforcement officials. 373 U.S. at 87.

The materiality of the evidence is measured by the effect it

would have had on the result of the trial, the focus being on

fairness. Kyles, 514 U.S. at 433-34; United States v. Bagley, 473

U.S. 667, 678, 682 (1985). This court has previously articulated

the materiality standard as follows:

Our inquiry is confined to a determination of whether there

is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would

have been different. The Supreme Court has emphasized

that the question is not whether the defendant would more

likely than not have received a different verdict with the

evidence, but whether in its absence he received a fair trial,

understood as a trial resulting in a verdict worthy of

confidence. Therefore, our focus is on the potential impact

that the undisclosed evidence might have had on the

fairness of the proceedings rather than on the overall

strength of the government’s case. Evidence is material if

the undisclosed information could have substantially

affected the efforts of defense counsel to impeach the

witness, thereby calling into question the fairness of the

ultimate verdict.

Cuffie, 80 F.3d at 517 (internal alteration, citations, and

quotation marks omitted). Thus, in regard to an asserted Brady

violation the question is whether the failure to disclose

significantly undermined the fairness of the verdict.

The Jencks Act imposes obligations on the government that

11

are distinct from the government’s Brady obligations, but they

may overlap to some extent. The Jencks Act requires the

prosecution in a federal criminal case to disclose “statements”

of all prosecution witnesses. The Jencks Act provides, in

relevant part, as follows:

(b) After a witness called by the United States has

testified on direct examination, the court shall, on motion of

the defendant, order the United States to produce any

statement (as hereinafter defined) of the witness in the

possession of the United States which relates to the subject

matter as to which the witness has testified. . . .

....

(e) The term “statement” . . . means—

(1) a written statement made by said witness and

signed or otherwise adopted or approved by him; [or]

(2) a stenographic, mechanical, electrical, or other

recording, or a transcription thereof, which is a

substantially verbatim recital of an oral statement made

by said witness and recorded contemporaneously with

the making of such oral statement . . . .”

18 U.S.C. § 3500.

Under the definition in subparagraph (e), notes of a

conversation are not generally Jencks Act material (unless they

represent a full transcription), Norinsberg Corp. v. U.S. Dep’t of

Agric., 47 F.3d 1224, 1228 (D.C. Cir. 1995), but a statement that

is handwritten and approved by the witness is Jencks Act

material. Violations of the Jencks Act are subject to harmless-

error review. See, e.g., Lam Kwong-Wah, 924 F.2d at 310.

IV

At the outset, we find that any lost opportunity to impeach

12

Tequila Williams could not possibly have affected the verdicts

on counts five and nine (as to which Williams did not testify).

Oruche argues these convictions are tainted because of a

spillover effect from the convictions on counts two and three,

where Williams was a key witness. Oruche points out in this

regard that the prosecution had argued against severance of

these counts, claiming all the counts were part of a common

scheme. The two considerations (severance and Brady

materiality) are so different, however, that the asserted

inconsistency in the government’s argument disappears. It may

have been quite appropriate to deny severance based on the

relationship between the various counts; nevertheless, that

relationship is not so great that the convictions on counts five

and nine are placed in doubt simply because testimony on other

counts is challenged.

Counts one, two, and three pose a somewhat more serious

question. Count one is the conspiracy count, and we cannot

know whether the jury based its conspiracy finding on

Williams’s testimony. Count two is the ITAR count arising

from Oruche’s New York trip, and Williams was an important

witness. As to either of these counts, if the undisclosed

impeachment evidence discredited Williams’s testimony,

perhaps the fairness of the verdict might be questioned. On

count three, Oruche’s argument is even stronger. Not only did

Williams testify about the sale to Officer Arrington on

September 21, 2000, but the impeachment evidence arguably

supports Oruche’s claim that Williams had another source

(besides Oruche) for the heroin she sold. Thus, the resolution of

this case can be divided into two issues: (1) the question of

Williams’s credibility in the eyes of the jury, and (2) the

possibility Williams had an alternative source for heroin.

13

A

As regards Williams’s credibility in the eyes of the jury—an

issue that might impact count one, two, or three—we first

consider the government’s failure to disclose Detective Lyles’s

notes (including Williams’s jottings on those notes). The notes

taken by Lyles are not Jencks Act material (because they are not

a full transcription of Williams’s statement), Norinsberg, 47

F.3d at 1228-29; see also 18 U.S.C. § 3500(e)(2) (defining

covered “statement[s]” to include only “a substantially verbatim

recital of an oral statement” of a witness); Palermo v. United

States, 360 U.S. 343, 352-53 (1959) (holding that “summaries

of an oral statement which evidence substantial selection of

material . . . are not to be produced” under the Jencks Act), but

the few words and numbers Williams wrote on the notes might

be Jencks Act material, assuming they qualify as “a written

statement made by [Williams] and . . . approved by [her].”1 18

1

Notwithstanding the government’s repeated concession to the

contrary at oral argument, we do not believe the notations satisfy the

Jencks Act’s definition of a “statement.” The Jencks Act defines a

“statement” subject to disclosure as “a written statement made by [a

testifying] witness and signed or otherwise adopted or approved by

him.” 18 U.S.C. § 3500(e)(1) (emphasis added). The government

believes “[t]he notations actually written by Williams” meet this

definition. Appellant’s Br. at 57. Yet the notations—assuming

Williams’s brief written identification of “O,” O’s “Girlfriend

(Leslie)” and their cell phone numbers constitute “statement[s]”—are

not accompanied by Williams’s signature or any other indication of

her adoption thereof. See Appx. 15 at 1. The government’s

interpretation therefore rests on the assumption that, by merely making

the notations, Williams also “signed or otherwise adopted or

approved” them. 18 U.S.C. § 3500(e)(1). That interpretation,

however, renders redundant the Jencks Act’s requirement that a

testifying witness provide both a written statement “and” a signature

(continued...)

14

U.S.C. § 3500(e)(1). Nevertheless, we are not persuaded the

release of these notes would have enabled the defense to

undermine Williams’s credibility. Significantly, the notes do

not suggest Williams is a liar. At most, they weakly support an

argument that she had a second source for heroin, but that

argument does not particularly impact her credibility. If, at trial,

the defense had possessed the notes, counsel could have cross-

examined Williams about the source of the heroin she sold to

Arrington, and given the corroborating evidence, she likely

would have denied Tungy was the source. That denial would

not have undermined her credibility, because the defense lacked

any strong evidence implicating Tungy as the true source, and

the prosecution had plenty of evidence implicating Oruche

(including cell-phone usage and video recordings showing

Oruche entering the club at the critical time when the transfer of

heroin took place and leaving only minutes later). Similarly, we

do not see how Williams’s jottings on the sheet of notes (three

telephone numbers and the words “O” and “Girlfriend (Leslie)”)

could have been used to undermine her credibility.

We next consider the government’s failure to disclose the

grand jury testimony in which Williams admitted she had lied to

police in 1993 to protect her boyfriend. The transcript of this

1

(...continued)

or other affirmation of that statement. Id. Because “statutory

language should be construed so as to avoid redundancy,” Parker v.

Califano, 561 F.2d 320, 325 (D.C. Cir. 1977); see also Gustafson v.

Alloyd Co., 513 U.S. 561, 574 (1995) (courts should “avoid a reading

[of statutory language] which renders some words altogether

redundant”), we read 18 U.S.C. § 3500(e)(1) to require something

more than the testifying witness’s written notations on a sheet of paper

to establish a Jencks Act “statement.” Thus, in the absence of

Williams’s signature or some other sign of approval of the notations

appearing on Detective Lyles’s debriefing notes, we do not believe

they are subject to disclosure under the Jencks Act.

15

testimony (though a full transcription) is not Jencks Act

material, because it does not “relate[] to the subject matter” of

Williams’s testimony in the Oruche case. Id. § 3500(b). The

grand jury transcript, however, could certainly have been used

to impeach Williams’s credibility. The transcript (and related

notes) show that, nine years before Oruche’s trial, Williams had

lied to police in order to protect her boyfriend. Defense counsel

could have used this evidence to support a claim that Williams

was a liar who would say whatever suited her purposes in the

moment, even when speaking with authority figures about a

matter of grave importance. Nevertheless, given the “reasonable

probability” standard articulated by the Supreme Court for

Brady claims, Kyles, 514 U.S. at 434; Bagley, 473 U.S. at 682,

we do not believe this evidence would have affected the

outcome at trial.

Williams was thoroughly impeached at trial. The defense

cross-examined her about her work in a strip club, her use of

PCP, her prior felony convictions, and the benefits she was

receiving in exchange for her testimony. She also admitted to

the jury that she had lied in the past, and she admitted to using

an alias on her plea agreement. See Cuffie, 80 F.3d at 518

(noting that “undisclosed impeachment evidence can be

immaterial because of its cumulative nature . . . if the witness

was already impeached at trial by the same kind of evidence”).

Moreover, the lies Williams told in connection with the

investigation of her boyfriend in 1993 were not the sort of lies

that would have significantly undermined her testimony at

Oruche’s trial. The lies were nine years old, and in any case, a

lie told to protect a boyfriend, and later recanted when under

oath, is a very different thing from a lie told under oath at a

criminal trial to falsely convict a defendant of heroin

distribution. Finally, the evidence corroborating Williams’s

testimony on counts one, two, and three was very strong. As

noted, count one was the conspiracy count and depended

16

primarily on the evidence offered in support of the other counts.

As for count two, both Ogar and Williams testified about the trip

to New York, and Ogar’s testimony substantially corroborated

Williams. In support of count three, the video recording showed

Oruche entering and then exiting the club at precisely the time

Williams entered the club and obtained the heroin. In sum, we

think any impeachment value associated with the grand jury

transcript and related notes would have been negligible and

cumulative of similar evidence that was presented to the jury.

We cannot say the failure to disclose this evidence called into

question the fairness of the verdict. Kyles, 514 U.S. at 434;

Bagley, 473 U.S. at 678; see also United States v. Smith, 77 F.3d

511, 515 (D.C. Cir. 1996).

B

Oruche argues he could have used Detective Lyles’s notes

to suggest Tungy—allegedly Williams’s second supplier—was

the real source of the heroin Williams sold to Officer Arrington

on September 21, 2000, thereby casting doubt on the count-three

conviction. Here, Oruche is on weak ground. Oruche has no

solid evidence tending to show Williams had any other source

for heroin. The only evidence in this regard is Detective Lyles’s

notes, which include a very ambiguous reference to “Tungy.”

If, however, the government had disclosed these notes before

trial, and if Oruche, on cross-examination of Williams, had

attempted to implicate Tungy, Williams would likely have

denied Tungy was her source, and the defense would have had

nothing with which to discredit that denial. Cf. United States v.

Bowie, 198 F.3d 905, 909-11 (D.C. Cir. 1999) (considering

hypothetical impact of undisclosed evidence on cross-

examination to conclude that evidence was not material). In

addition, the notes are very weak support for the argument that

Tungy was a heroin dealer. The word “coke” appears directly

below Tungy’s name, and the word “Heroin” is some distance

17

away and not clearly associated with the word “Tungy.”

Moreover, the government could have called Detective Lyles to

interpret the notes, explaining Tungy was a coke dealer not a

heroin dealer. Of course, Lyles testified at the Kastigar hearing

that Tungy was a heroin dealer, but she later repudiated that

testimony. If in fact she erred in testifying at the Kastigar

hearing, then we cannot assume she would have made this same

error at trial.

The district court declined to credit Lyles’s claim of error,

and its finding in that regard is entitled to deference, Founding

Church of Scientology, 802 F.2d at 1457, but the district court

apparently believed Detective Lyles had fraudulently prepared

her second page of notes to bolster the reversal in her testimony.

This conclusion is plainly wrong because Detective Lyles

presented this sheet of notes at the Kastigar hearing, long before

the change in her testimony. This oversight in the court’s

analysis suggests the court may have misjudged Lyles’s

credibility, also calling into question its analysis of the

Brady/Jencks Act issue. If the court had credited Lyles’s

revised testimony that Tungy was in fact a cocaine dealer (not

a heroin dealer), then the court might have been much less

inclined to find that Detective Lyles’s notes—with their

ambiguous markings—were material exculpatory evidence.

Finally, as noted, the evidence implicating Oruche as the

source of the heroin Williams sold Officer Arrington is very

strong. Williams set up the deal with Arrington to occur at 3:00

p.m. at the club. Cell-phone records show a series of telephone

calls between Williams and Oruche on that same day, with

several calls shortly before and after 3:00 p.m. Moreover, the

video recording shows Oruche entering the club minutes before

the heroin sale and exiting the club minutes after the sale. This

evidence strongly suggests Oruche, not Tungy, was the supplier

of the heroin.

18

In sum, the government’s failure to disclose Detective

Lyles’s notes and the grand jury transcript (as well as the related

police notes from 1993) did not affect the outcome of Oruche’s

trial or call into question the fairness of the verdict, and

therefore these documents were not material for purposes of

Brady. Kyles, 514 U.S. at 433-34; Bagley, 473 U.S. at 678;

Smith, 77 F.3d at 515. The government concedes that

Williams’s jottings on Detective Lyles’s sheet of notes

constitute Jencks Act material that should have been disclosed,

but we see no possibility that disclosure of these jottings would

have affected the outcome, and therefore the error (if any) was

harmless, Lam Kwong-Wah, 924 F.2d at 310-11. The grand jury

transcript and related notes were not Jencks Act material

because they did not relate to Williams’s testimony in the

Oruche case. 18 U.S.C. § 3500(b).

V

We reverse the district court’s new trial order. As noted,

Oruche based his new trial motion on several asserted

irregularities in the trial, but the district court’s ruling focused

primarily on Brady and the Jencks Act. The court stated: “As to

other defense motions, those motions are denied in view of the

grant of the new trial.” The court was not specific as to the

substance of the defense motions it was leaving unaddressed, but

we consider it appropriate under the circumstances to remand

for further proceedings consistent with this opinion.

So ordered.