United States v. Johnson

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 11, 2007 Decided March 11, 2008

No. 06-3167

UNITED STATES OF AMERICA,

APPELLEE

v.

ABDUL C. JOHNSON,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 03cr00211-01)

Jenifer Wicks argued the cause and filed the briefs for

appellant.

John P. Mannarino, Assistant U.S. Attorney, argued the

cause for appellee. With him on the brief were Jeffrey A.

Taylor, U.S. Attorney, and Roy W. McLeese, III, Assistant U.S.

Attorney.

Before: SENTELLE, Chief Judge, GARLAND, Circuit Judge,

and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GARLAND.

2

GARLAND, Circuit Judge: Defendant Abdul Johnson

appeals from his conviction on firearms and narcotics charges.

He contends that the gun and drug evidence that the government

used against him was the fruit of an unlawful detention, that the

improper admission of a previous firearms conviction prejudiced

the outcome of his trial, that the government did not introduce

sufficient evidence to prove that the cocaine base the police

seized from him was crack cocaine, and that the district court

erred in not granting a new trial on the grounds of newly

discovered evidence and nondisclosure of Brady material. We

reject Johnson’s challenges and affirm the judgment of the

district court.

I

On May 20, 2003, a grand jury charged Johnson with four

illegal acts: (1) possession of a firearm by a convicted felon, in

violation of 18 U.S.C. § 922(g)(1); (2) possession with intent to

distribute five grams or more of cocaine base, in violation of 21

U.S.C. § 841(a)(1) and 841(b)(1)(B)(iii); (3) using, carrying, and

possessing a firearm in relation to a drug trafficking offense, in

violation of 18 U.S.C. § 924(c)(1); and (4) simple possession of

marijuana, in violation of 21 U.S.C. § 844(a). In the fall of

2003, the district court held a hearing on Johnson’s motion to

suppress evidence arising out of the stop that led to his arrest.

At the hearing, the government introduced the testimony of

Metropolitan Police Department (MPD) Officer Jason Pearce,

who stated as follows.

On April 9, 2003, Pearce and Officer Steven Franchak,

Investigator Steven Manley, and Detective David Dessin were

patrolling a high-crime area in Northeast Washington, D.C., in

an unmarked Jeep. An undercover officer patrolling in the same

area radioed to inform them that a blue Buick was “driving

crazy” and was heading toward 2nd and Bryant streets. Shortly

3

thereafter, the officers saw defendant Johnson pull up in the

Buick, double-park, get out of the car while leaving it idling, and

approach an unoccupied green Chrysler that was parked on the

other side of the street.

As the officers pulled up in their Jeep, they saw Johnson get

into the Chrysler’s driver’s seat, lean over, and begin examining

something in the vicinity of the passenger’s seat, with six inches

of his arm extended underneath the dashboard. When the

officers got out of their car, Johnson looked up and noticed

them. His eyes then “widen[ed] and his mouth kind of f[ell] half

open and he start[ed] fumbling with the driver’s side door.”

Mot. Hr’g Tr. 15 (Oct. 16, 2003). He “looked very shocked and

. . . it took him several spastic actions to get the door open and

he darted up out of the car.” Id. at 55. Pearce then directed

Johnson to sit back down in the car. As he did so, Johnson

began reaching quickly around his waist area. Concerned,

Pearce asked him to step out of the car, and when he did, Pearce

smelled alcohol on his breath. Johnson then reached toward his

waistband again, and Pearce directed him to put his hands on top

of the car. Johnson, who seemed unsteady on his feet, complied.

Pearce then saw a plastic cup of reddish amber liquid on the

passenger side of the Chrysler. At almost the same time, Pearce

heard Investigator Manley say that he could see an open

container of alcohol inside the blue Buick.

Pearce handcuffed Johnson and informed him that he was

being arrested for “POCA” (possession of an open container of

alcohol in an automobile). When Pearce asked Johnson to turn

around, Johnson pressed his right side against the car. Manley

then approached to assist Pearce; after a short struggle, Manley

lifted Johnson’s shirt, revealing a semiautomatic handgun in his

waistband. Franchak ran over to grab the gun, and Johnson

exclaimed: “Yeah, I carry a gun. I got shot in my neck. They

4

killed my man. You guys never found who did that. I’ll carry

a gun for the rest of my life.” Id. at 21.

Officer Pearce searched Johnson and found two ziplocks of

a “green plantlike substance” in his breast pocket. Pearce also

recovered $1883 in cash from Johnson’s pockets and several

ziplocks containing “white chunks of rocklike substance” from

the Chrysler’s glove compartment. When Pearce called to

another officer that he had found some “crazy candy” in the car,

Johnson immediately yelled out: “Crack, I know we didn’t find

any crack in my car. I know we didn’t find any crack in my car.

I bought that car from my dad three years ago. There’s no crack

in that car.” Id. at 22-24.

Because a crowd had started to gather, the officers decided

to remove Johnson from the scene in their Jeep. At one point,

Johnson complained that the handcuffs were too tight, and

Manley, who was sitting next to him, shifted their position.

During the ride to MPD’s major narcotics branch, Johnson

“start[ed] moving and talking and [was] animated.” Id. at 26.

When they arrived at the branch, the officers removed Johnson

from the Jeep and discovered four ziplocks containing a white,

rock-like substance and one ziplock containing a green, plant-

like substance in the seatbelt reservoir where he had been sitting.

Franchak then searched the area behind Johnson’s seat and

recovered 15 more bags filled with a white, rock-like substance

and one more bag filled with a green, plant-like substance. The

ziplock bags containing the white substance later field-tested

positive for cocaine, and those containing the green substance

tested positive for THC, the active ingredient in marijuana.

On the second day of the suppression hearing, the defense

introduced the testimony of Nancy Jones, a resident of the area

where Johnson was arrested. Jones stated that Johnson was a

friend of her niece and that she had known him for seven or

5

eight years. She testified that, on April 9, 2003, she saw him

driving his blue Buick. The police then “came up with their

guns drawn on both sides and made him get out of his car.”

Mot. Hr’g Tr. 82 (Nov. 10, 2003). “They took him over directly

across the street on another car and . . . his pants had fell down

and they were searching him.” Id. Jones told one of the

officers, “you all don’t have to do him that rough.” Id.

After listening to the testimony of both Pearce and Jones,

the district court credited Pearce. The court concluded that

neither the stop nor the search violated the Fourth Amendment,

and it denied Johnson’s motion to suppress evidence. Id. at 107.

At Johnson’s trial, which began on April 23, 2004, the

government offered testimony from Pearce, Manley, Franchak,

and Dessin that was in accord with Pearce’s testimony at the

suppression hearing. Pearce also testified that the substance he

found in the glove compartment was “crack cocaine.” Trial Tr.

75 (Apr. 26, 2004). Pearce, Manley, and Franchak testified that

they saw a total of 19 ziplocks of a rock-like substance and two

ziplocks of a weed-like substance in the Jeep after Johnson had

been removed. The jury also heard from a narcotics expert,

Detective Tyrone Thomas, who stated that the white, rock-like

substance recovered in this case was street-level crack cocaine

and that it had a total street value of $6660.

In addition to this testimony, the parties stipulated that a

DEA chemist had determined that the controlled substances

seized on April 9, 2003 were cocaine base and marijuana. The

chemist analyzed 5.8 grams of cocaine base (from the three

ziplocks seized from the Chrysler’s glove compartment), 7.9

grams of cocaine base (from the four ziplocks seized from the

Jeep’s seatbelt reservoir), 34.1 grams of cocaine base (from the

15 ziplocks seized from the area of the Jeep behind Johnson’s

seat), and 5.73 grams of marijuana. The parties further

6

stipulated that Johnson had previously been convicted of a crime

punishable by more than one year’s imprisonment and that the

seized handgun was operable and had an interstate nexus.

The government also introduced testimony, from MPD

fingerprint examiner Diane Downing, that Johnson’s fingerprint

was on the magazine of the gun taken from his waistband.

Finally, pursuant to a pretrial ruling by the court, the parties

stipulated that “on August 25, 1997, the defendant Abdul

Johnson was convicted of carrying a pistol without a license and

possession of cocaine in the Superior Court of the District of

Columbia,” and that Johnson had also been convicted of

possession with intent to distribute cocaine in 1992. Trial Tr. 4-

5 (Apr. 27, 2004).

Johnson did not testify or call any witnesses. On April 28,

2004, the jury convicted him on all counts. Thereafter, the

district court denied his motion for a new trial and sentenced

him to 136 months’ imprisonment. Johnson timely appealed and

now raises four challenges to his conviction.

II

Johnson’s first contention is that the district court erred in

denying his motion to suppress the gun and drug evidence

because the stop that led to his arrest violated the Fourth

Amendment. The stop in question began with Officer Pearce’s

direction to Johnson to “sit back down” as he tried to dart out of

the Chrysler. Mot. Hr’g Tr. 16 (Oct. 16, 2003). Johnson does

not separately challenge the searches that yielded the gun and

drugs; he contends only that these items were the unlawful fruits

of a stop that was unreasonable under Terry v. Ohio, 392 U.S. 1

(1968). See Appellant’s Br. 12, 23-24.

7

In Terry, the Supreme Court held that “the police can stop

and briefly detain a person for investigative purposes if the

officer has a reasonable suspicion supported by articulable facts

that criminal activity ‘may be afoot,’ even if the officer lacks

probable cause.” United States v. Sokolow, 490 U.S. 1, 7 (1989)

(quoting Terry, 392 U.S. at 30). We decide de novo whether the

police had reasonable suspicion for a stop, but we review the

district court’s “findings of historical fact only for clear error”

and give “due weight to inferences drawn from those facts.”

Ornelas v. United States, 517 U.S. 690, 699 (1996). We also

review the district court’s credibility determinations only for

clear error, see United States v. Broadie, 452 F.3d 875, 880

(D.C. Cir. 2006), and may not overturn them unless the court

has credited “exceedingly improbable testimony,” United States

v. Mapp, 476 F.3d 1012, 1017 (D.C. Cir. 2007) (quoting United

States v. Adamson, 441 F.3d 513, 519 (7th Cir. 2006)).

Johnson first asks us to reverse the district court because it

credited Officer Pearce’s testimony (that the police did not

approach Johnson until he was inside the green Chrysler) over

Nancy Jones’ testimony (that she saw the police force Johnson

out of the blue Buick and take him across the street to another

car). Because there was nothing improbable about Pearce’s

testimony, we find no clear error in the court’s decision to credit

it.

Johnson next argues that, even accepting the officer’s

version of the events, the stop nonetheless transgressed Terry.

In response, the government urges us to hold that the stop was

lawful on the ground that Johnson was committing a parking

violation -- double-parking -- at the time of the stop. Because

the police may stop an automobile when they have probable

cause to believe that a traffic violation has occurred, see Whren

v. United States, 517 U.S. 806, 810 (1996), the government

argues that the same should be true when the police witness a

8

parking violation, Gov’t Br. 34. Although other circuits have so

held, see United States v. Choudhry, 461 F.3d 1097, 1103-04

(9th Cir. 2006); Flores v. City of Palacios, 381 F.3d 391, 402-03

(5th Cir. 2004); United States v. Copeland, 321 F.3d 582, 594

(6th Cir. 2003), this circuit has not yet decided the question, see

United States v. Spinner, 475 F.3d 356, 358 (D.C. Cir. 2007)

(assuming without deciding that the defendant’s parking

violation justified his initial detention).

Nor need we decide that question in order to resolve this

case, as the officers’ decision to stop Johnson was reasonable

under the “totality of the circumstances test” normally employed

in a Terry analysis. United States v. Arvizu, 534 U.S. 266, 273

(2002); see Sokolow, 490 U.S. at 9-10; United States v.

Edmonds, 240 F.3d 55, 59-60 (D.C. Cir. 2001). The police

received a report about a blue Buick “driving crazy” in “a high

violence and high drug transaction area.” Mot. Hr’g Tr. 12-13

(Oct. 16, 2003). They then observed Johnson quickly drive by,

double-park, leave the car idling, cross the street, and get into an

unoccupied green Chrysler. After the officers pulled up, they

watched Johnson reach under the Chrysler’s dashboard; when he

noticed their presence, he looked shocked, fumbled with the

door, and attempted to dart out of the car. Together, these

articulable facts supported the officers’ “reasonable suspicion

that [Johnson] was engaged in wrongdoing when they

encountered him” in the Chrysler. Sokolow, 490 U.S. at 7; see

Illinois v. Wardlow, 528 U.S. 119, 124 (2000); Terry, 392 U.S.

at 30; United States v. Dykes, 406 F.3d 717, 720 (D.C. Cir.

2005); Edmonds, 240 F.3d at 57, 60.

III

Johnson’s second challenge concerns the district court’s

decision to admit evidence of his 1997 Superior Court

conviction for carrying a pistol without a license.

9

A

At the pre-trial motions hearing, the government argued that

the 1997 conviction was relevant to prove Johnson’s knowledge,

intent, and absence of mistake as to his possession of the gun in

the present case. The defense responded that the court should

bar evidence of the conviction under Federal Rule of Evidence

404(b), as improper character evidence, or under Rule 403, as

unduly prejudicial. Rule 404(b) provides that “[e]vidence of

other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show action in conformity

therewith,” but that it may “be admissible for other purposes,

such as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident.” FED.

R. EVID. 404(b). Evidence that is admissible under Rule 404

may nonetheless be excluded by the trial court under Rule 403

“if its probative value is substantially outweighed by the danger

of unfair prejudice.” FED. R. EVID. 403; see Old Chief v. United

States, 519 U.S. 172, 182 (1997); United States v. Douglas, 482

F.3d 591, 600 (D.C. Cir. 2007).

Because the police witnesses testified that they recovered

the gun in this case from Johnson’s waistband, the defense

maintained that further evidence that Johnson knowingly and

intentionally possessed the weapon was inappropriate. The

district court rejected this argument, holding that the

government could introduce the prior conviction to prove

Johnson’s intent, knowledge, and absence of mistake. The court

ruled, however, that the prosecution could not put on evidence

regarding the facts underlying the conviction. It recommended

that the parties instead adopt a stipulation regarding the

conviction, and the parties did so. The stipulation was the only

10

evidence of the 1997 conviction that was entered at trial.1 On

appeal, Johnson contends -- as he did in the district court -- that

the court erred under Rules 404(b) and 403 in admitting any

evidence regarding the prior conviction.

“We review a claim that a district court improperly admitted

evidence under Rule 404(b) solely to determine whether the

court abused its discretion.” United States v. Pindell, 336 F.3d

1049, 1056-57 (D.C. Cir. 2003). Because the “trial court is in

the best position to perform [the] subjective balancing” required

under Rule 403, its decision not to exclude evidence under that

rule “should be reviewed only for grave abuse.” United States

v. Cassell, 292 F.3d 788, 795-96 (D.C Cir. 2002) (internal

quotation marks omitted). If we conclude that the district court

erred in admitting evidence under either rule, our review --

when, as here, the defendant objected to admission at trial -- is

limited by the harmless error standard of Federal Rule of

Criminal Procedure 52(a). See United States v. Coumaris, 399

F.3d 343, 347 (D.C. Cir. 2005). Under that standard, we may

not correct the district court’s error unless it affected the

defendant’s “substantial rights.” FED. R. CRIM. P. 52(a). “[I]n

most cases [this] means that the error must have been

prejudicial: It must have affected the outcome of the district

court proceedings.” United States v. Olano, 507 U.S. 725, 734

(1993). When the error did not involve a constitutional right, it

is not prejudicial “unless it had a ‘substantial and injurious

effect or influence in determining the jury’s verdict.’” United

States v. Linares, 367 F.3d 941, 952 (D.C. Cir. 2004) (quoting

Kotteakos v. United States, 328 U.S. 750, 776 (1946)). The

government bears the burden of proving the absence of such

prejudice. Id.; see Coumaris, 399 F.3d at 347 n.1.

1

The same stipulation included an acknowledgment that Johnson

had previously been convicted of cocaine offenses in 1997 and 1992.

Johnson does not challenge that part of the stipulation on appeal.

11

B

On appeal, the government concedes that the district court

erred in admitting proof of Johnson’s 1997 conviction. It does

so on the basis of this circuit’s decision in United States v.

Linares, which was issued a few weeks after the conclusion of

Johnson’s trial. In Linares, the defendant was likewise charged

with being a felon in unlawful possession of a firearm, and this

court held that the trial judge erroneously permitted the

government to present evidence that Linares had previously

possessed a handgun. At Linares’ trial, eyewitnesses testified,

as they did here, that they saw the gun on the defendant’s person

-- indeed, that he had held the gun in his hand and fired it.

“Given the evidence in this case,” the court said, “we do not

understand how Linares’s previous possession of a pistol makes

it any more likely that he knowingly possessed a gun this time.”

Linares, 367 F.3d at 946. “If the jury believed these

eyewitnesses, then Linares possessed the gun knowingly; if it

did not, then it should have acquitted based on the government’s

failure to prove possession rather than its failure to prove

knowledge.” Id.

Although the government concedes that the district court

wrongly admitted Johnson’s 1997 conviction under Linares, it

argues that this error was harmless. On this point, too, Linares

governs. Although the Linares court held that the admission of

the prior gun possession in that case was error, it nonetheless

found the error harmless. In light of “multiple and consistent

eyewitness accounts” placing the gun in the defendant’s hand,

the court concluded that the government had carried its burden

of proving that the error did not have a substantial and injurious

effect on the jury’s verdict. Id. at 952-53.

The evidence in this case commands the same conclusion.

At trial, multiple arresting officers testified, without

12

inconsistency or contradiction, that they discovered the gun in

Johnson’s waistband. That discovery was preceded by several

attempts by Johnson to reach for his waistband, as well as an

effort to keep his waist away from the officers by pressing it

against the car. The officers further testified, again without

contradiction, that as soon as Officer Franchak grabbed the gun,

Johnson exclaimed: “[O]f course I carry a gun. . . . I’ve been

shot seven times, I got shot in my neck. They killed my man.

You all never found who did that. I will carry a gun for the rest

of my life.” Trial Tr. 32 (Apr. 26, 2004). Finally, the

fingerprint examiner testified that she found Johnson’s

fingerprint on the magazine of the gun that the officers took

from his waistband. On this record, we conclude that the

admission of Johnson’s 1997 conviction did not have a

“substantial and injurious effect” on the jury’s verdict and hence

was harmless. Kotteakos, 328 U.S. at 776.2

IV

Johnson next contends that the district court erred in

denying his motion for judgment of acquittal on the charge of

possession with intent to distribute cocaine base. The court

should have granted the motion, he maintains, because the

government failed to introduce sufficient evidence that the

cocaine base at issue was either smokable cocaine base or crack

cocaine, as required by United States v. Brisbane, 367 F.3d 901

(D.C. Cir. 2004).

Count Two of the indictment charged Johnson with

violating 21 U.S.C. § 841(a) and (b)(1)(B)(iii), by possessing

with intent to distribute five grams or more of “cocaine base.”

2

We also note that the government did not mention the 1997

conviction in its closing or rebuttal arguments. The jury learned of it

only through a bare-bones stipulation.

13

As we have explained in previous cases, a “certain quantity of

‘cocaine base’ will trigger much stiffer penalties than an

equivalent quantity of powdered cocaine -- that is, ‘cocaine, its

salts, optical and geometric isomers, and salts of isomers.’”

United States v. Powell, 503 F.3d 147, 148 n.1 (D.C. Cir. 2007)

(comparing 21 U.S.C. § 841(b)(1)(A)(ii)(II) & (B)(ii)(II) with

21 U.S.C. § 841(b)(1)(A)(iii) & (B)(iii)); see United States v.

Johnson, 437 F.3d 69, 74 (D.C. Cir. 2006). In Brisbane, we

held that, to “uphold the higher penalties that § 841 prescribes

for crimes involving ‘cocaine base,’” the government must

prove that the kind of cocaine base seized was either “smokable

cocaine base or crack cocaine.” Johnson, 437 F.3d at 71 (citing

Brisbane); see United States v. Baugham, 449 F.3d 167, 171

(D.C. Cir. 2006).3 Our review of a challenge to the sufficiency

of the evidence to establish a statutory element is limited: we

must accept the jury’s guilty verdict if we conclude that “any

rational trier of fact could have found the essential element[] of

the crime beyond a reasonable doubt.” United States v.

Arrington, 309 F.3d 40, 48 (D.C. Cir. 2002) (quoting Jackson v.

Virginia, 443 U.S. 307, 319 (1979)).

In light of the parties’ stipulation to the chemist’s report,

there is no doubt that the white, rock-like substance seized in

this case was cocaine base. There is also no doubt that the

government did not attempt to prove that the substance was

smokable cocaine base, as no evidence of smokability was

introduced. Thus, as in many of our previous cases, the only

3

Johnson argues that, because the government failed to prove that

the substance seized from him was smokable or crack, his conviction

for possession with intent to distribute cocaine base must be vacated,

and a conviction for the lesser-included offense of possession with

intent to distribute cocaine -- with a correspondingly reduced sentence

-- must be entered. Appellant’s Br. 16-17 (citing Brisbane, 367 F.3d

at 915).

14

question is whether the evidence was sufficient to prove that the

cocaine base the officers found was crack cocaine.

At trial, the arresting officers testified that the drugs they

seized from Johnson were “white” and “rock-like” and that,

during their many years working for the major narcotics branch,

they had often seen crack packaged as it was in this case. E.g.,

Trial Tr. 35, 45, 123, 149, 172, 190 (Apr. 26, 2004). Officer

Pearce specifically testified that the substance he found in the

Chrysler’s glove compartment was “crack cocaine.” Id. at 75.

The government’s narcotics expert testified that the drugs

appeared to be “street-level crack cocaine,” that “[c]rack cocaine

is sold in these small Ziploc bags,” and that the amount in

question would generate about 666 bags of crack that would sell

for ten dollars each. Trial Tr. 13-15 (Apr. 27, 2004). Finally,

several officers testified that, upon hearing Officer Pearce

announce that he had found some “crazy candy” in the glove

compartment of the Chrysler, Johnson spontaneously yelled out:

“Crack, I know you didn’t find any crack in that car, ain’t never

been any crack in that car.” E.g., Trial Tr. 37, 190 (Apr. 26,

2004).

The evidence introduced in this case is indistinguishable

from evidence we have previously held sufficient to establish

that cocaine base is crack.4 Johnson objects that the evidence

4

See United States v. Pettiford, No. 07-3027, slip op. at 17 (D.C.

Cir. Feb. 26, 2008) (the arresting officer, based on his experience in

“prior arrests dealing with crack cocaine,” testified that the “white,

rock-like substance” he seized was “crack cocaine”; a narcotics expert

opined that the “cluster of white . . . rock-like substance . . . was

cocaine base which is also known as crack cocaine” in Washington,

D.C.; and the expert further testified that the substance was packaged

in amounts that were consistent with the wholesale distribution of

crack and was found with paraphernalia typical of equipment used in

15

was insufficient because there was no testimony that the

substance was smokable. Our cases make clear, however, that

“evidence about the substance’s smokability” is not required to

sustain a finding that it is crack. Johnson, 437 F.3d at 75; see

Pettiford, slip op. at 18; Powell, 503 F.3d at 148.5 The district

wholesale crack transactions); United States v. Lloyd, No. 05-3007,

slip op. at 16-17 (D.C. Cir. Feb. 22, 2008) (the seizing officer

identified the substance as “white” and “rock-like”; a narcotics expert

identified the white, rock-like substance found in eleven ziplock bags

as “crack cocaine”; and the expert further testified that the crack was

packaged for wholesale street distribution and that the kind of

paraphernalia found with the drugs was used to measure amounts

when packaging crack for wholesale distribution); Powell, 503 F.3d

at 148 (the seizing officer, experienced in crack cases, testified that the

“‘rock-like’ and ‘off-white’ or ‘yellowish’” substance was crack; and

a narcotics expert testified that the material was crack and not powder

cocaine); United States v. Lawrence, 471 F.3d 135, 139 (D.C. Cir.

2006) (police witnesses testified that the substance was a “large white

rock substance” and that the sale “followed conventional practices for

the sale of crack cocaine”; and undercover officers testified that the

defendant gave them the substance in response to their requests to buy

crack); Baugham, 449 F.3d at 183 (a police witness testified that the

substance was a “white rock substance,” distinguished the substance

from powder cocaine, and agreed that crack was “vernacular slang for

cocaine base”); Johnson, 437 F.3d at 75 (the seizing officers “testified

that the recovered drugs were ‘rock’ or ‘white rock,’ a physical

description that suggests crack cocaine”; a narcotics expert testified

that paraphernalia found in the defendant’s apartment was associated

with crack cocaine; and the expert further testified that the quantity

and packaging of the drugs were consistent with the street sale of

crack cocaine).

5

Johnson also objects that the narcotics expert “used

interchangeably the terms ‘cocaine base’ and ‘crack cocaine,’” and he

therefore maintains that the expert’s testimony cannot be used to

support the distinction required by Brisbane. Appellant’s Reply Br.

16

court did not err in denying Johnson’s motion for judgment of

acquittal.

Before concluding this Part, we note that, at oral argument,

Johnson’s counsel challenged the adequacy of the description of

the charged offense contained in the jury verdict form. Oral

Arg. Recording at 3:00. Employing the statutory language, the

verdict form asked the jury whether it found the defendant guilty

of possession with intent to distribute five grams or more of

“cocaine base”; it did not mention “crack cocaine.” Counsel

contends that this means that the jury did not find Johnson guilty

of possession with intent to distribute crack, but only of

possession with intent to distribute generic cocaine base. This

objection was not asserted in the district court and was not made

on appeal until the reply brief. Even then, it was only mentioned

in passing. It is therefore waived. See, e.g., United States v.

Johnson, 216 F.3d 1162, 1168 (D.C. Cir. 2000).

Even if the point were not waived, it would not prevail.

Count Two of the indictment charged Johnson with “possession

with intent to distribute cocaine base, also known as crack.”

Indictment, Gov’t App. 31. The district court’s jury instructions

repeatedly stated that, to convict Johnson on that count, the jury

would have to find him guilty of possession with intent to

distribute “crack cocaine.” E.g., Trial Tr. 96 (Apr. 27, 2004)

(“[T]he government must prove . . . that Mr. Johnson possessed

a controlled substance, specifically crack cocaine[,] . . . that Mr.

Johnson possessed the crack cocaine knowingly and

3. We rejected a similar objection in Lloyd, where the expert testified

that the seized substance was crack but also said that “crack is a ‘street

name’ for the same drug that chemists identify as ‘cocaine base.’”

Lloyd, slip op. at 17; see also Baugham, 449 F.3d at 183 (citing an

officer’s testimony that “‘cocaine base’ was ‘another name’ for

‘[c]rack’ and that crack was the ‘vernacular slang for cocaine base’”).

17

intentionally[,] . . . [and] that when Mr. Johnson possessed this

crack cocaine, he had the specific intent to distribute it.”). We

therefore reject the argument that, in marking the “guilty” line

of the verdict form, the jury did not find Johnson guilty of a

crime involving crack cocaine.

V

Finally, Johnson argues that the district court erred in

denying his motion for a new trial. That motion was based on

two grounds: a witness affidavit that he obtained only after the

trial ended, and an alleged Brady violation. We review both

grounds below.

A

Following his conviction, Johnson filed a motion for a new

trial, contending that he had recently obtained eyewitness

evidence that refuted the government’s case. The new evidence,

which he maintained contradicted the police officers’ testimony

that they approached him when he was inside the green

Chrysler, consisted of an affidavit from a woman named Sharon

Jones. The relevant portion of the affidavit recited Jones’

observations as follows:

The police hopped out of the truck with guns and

pulled Abdul [Johnson] out of the car. The police

officers started searching him. . . . [T]hey pulled Abdul

across the street and put him against the green car on

the other side of the street. Some of the police were

searching the green car and one of the white officers

searching in the green car said that he found a gun and

some candy. The police were talking to each other

about how they were going to lock him up for what

was found in the green car.

18

Jones Statement, Appellant’s App. 375. The district court

denied Johnson’s motion, concluding that “the defendant has not

argued diligence in the attempt to procure the newly discovered

evidence” and that the affidavit “would not likely produce an

acquittal.” United States v. Johnson, Mem. Order at 2-3 & n.1

(Oct. 27, 2005).

We review a district court’s ruling on a motion for a new

trial for abuse of discretion. See, e.g., United States v. Gloster,

185 F.3d 910, 914 (D.C. Cir. 1999). For a defendant to obtain

a new trial because of newly discovered evidence, he must

satisfy each of five requirements:

(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 must

not be merely cumulative or impeaching; (4) it must be

material to the issues involved; and (5) [it must be] of

such nature that in a new trial it would probably

produce an acquittal.

United States v. Lafayette, 983 F.2d 1102, 1105 (D.C. Cir. 1993)

(quoting Thompson v. United States, 188 F.2d 652 (D.C. Cir.

1951)).

We agree with the district court that Johnson did not show

-- indeed, did not even argue -- that he had diligently attempted

to procure Sharon Jones’ affidavit. Nor does he argue diligence

on appeal. And it is not likely that he could. Sharon Jones is

Nancy Jones’ daughter, see Oral Arg. Recording at 14:34, and

at the time of Johnson’s arrest, the two women lived together.

Given that the defendant was able to obtain Nancy’s testimony

in time for the pretrial suppression hearing, his failure to pursue

19

the testimony of her daughter prior to trial manifests a lack of

diligence.

Although it is not necessary to our decision, we also agree

with the district court’s determination that Sharon’s affidavit

was not likely to have produced an acquittal. Sharon’s proffered

testimony would have added little to that already available from

Nancy. Accordingly, we find no abuse of discretion in the

district court’s denial of a new trial on the basis of the Sharon

Jones affidavit.

B

Johnson’s second argument for a new trial was that the

government had failed to disclose Brady material that could

have been used to impeach Officer Franchak’s testimony. The

alleged Brady material was an official MPD reprimand of

Franchak, based on the results of an Office of Citizen Complaint

Review investigation, for conducting an unexplained traffic stop

and harassing the driver in 2001. See Appellant’s App. 377-93.6

The district court rejected Johnson’s argument on the ground

that the reprimand would not have been admissible at trial, and

hence was not favorable to Johnson, because it would have been

barred by Federal Rule of Evidence 608(b). Under that rule,

“[s]pecific instances of the conduct of a witness, for the purpose

of attacking or supporting the witness’ character for truthfulness,

. . . may not be proved by extrinsic evidence.” FED R. EVID.

608(b).

6

Johnson’s counsel did not receive the material until after

Johnson’s trial, and only then by happenstance: she received the

material in connection with a discovery request she made in a different

case that involved the same officer. See Oral Arg. Recording at 16:47.

20

In Brady v. Maryland, the Supreme Court held that the Due

Process Clause imposes upon the prosecution an obligation to

disclose “evidence favorable to an accused . . . where the

evidence is material either to guilt or to punishment, irrespective

of the good faith or bad faith of the prosecution.” 373 U.S. 83,

87 (1963). In Giglio v. United States and United States v.

Bagley, the Court held that “[i]mpeachment evidence, . . . as

well as exculpatory evidence, falls within the Brady rule.”

Bagley, 473 U.S. 667, 676 (1985) (citing Giglio, 405 U.S. 150,

154 (1972)). As the Court subsequently explained, a “true

Brady violation” has three components: “The evidence at issue

must be favorable to the accused, either because it is

exculpatory, or because it is impeaching; that evidence must

have been suppressed by the State, either willfully or

inadvertently; and prejudice must have ensued.” Strickler v.

Greene, 527 U.S. 263, 281-82 (1999). To satisfy the prejudice

component, the withheld evidence must be “material”; that is,

there must be “a reasonable probability that, had the evidence

been disclosed to the defense, the result of the proceeding would

have been different.” Id. at 280 (quoting Bagley, 473 U.S. at

676); see also Kyles v. Whitley, 514 U.S. 419, 433-34 (1995).

The defendant bears the burden of showing a reasonable

probability of a different outcome. Strickler, 527 U.S. at 291;

United States v. Gale, 314 F.3d 1, 4 (D.C. Cir. 2003).

Whether the government has breached its obligations under

Brady is a question of law, which we review de novo. In re

Sealed Case, 185 F.3d 887, 892 (D.C. Cir. 1999); see 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). To decide

this question, we need not address the district court’s holding

that the reprimand would have been inadmissible at trial, or the

government’s contention that cross-examination using the

reprimand would not have materially discredited Franchak’s

21

testimony.7 In this case, the government’s nondisclosure was

nonmaterial regardless of whether the reprimand would have

been admissible and regardless of whether it would have

undermined Franchak’s testimony.

In determining whether there is a reasonable probability

that disclosure would have yielded a different outcome, see

Strickler, 527 U.S. at 280, “the court must consider the

non-disclosure dynamically, taking into account the range of

predictable impacts on trial strategy.” Gale, 314 F.3d at 4. This

means that the court must consider whether, if use of the

material would have substantially discredited a witness, the

government would have proceeded to trial without that witness’

testimony. Id. at 4-5. When the government has other qualified

witnesses to prove its case, we cannot assume that it “would

have foolishly charged ahead, blindly offering [the compromised

witness] and exposing itself to his inevitable demolition on

cross.” Id. at 4. In such cases, nondisclosure would not be

material in Brady terms. See id. at 4-5 (holding that, where the

government could have replaced its impeachable expert with

another, the defendant could not show that disclosure of the

potential impeachment material would have been reasonably

likely to yield a different result); see also United States v.

Matthews, 168 F.3d 1234, 1243 (11th Cir. 1999) (rejecting a

7

Even if extrinsic evidence of the reprimand would have been

inadmissible, Rule 608(b) would not necessarily have barred

“inquir[y] into” the reprimand “on cross-examination of the witness

. . . concerning the witness’ character for truthfulness or

untruthfulness.” FED. R. EVID. 608(b). Our cases make clear that the

government’s effective foreclosure of such cross-examination, by its

failure to disclose the underlying extrinsic evidence to the defense, can

(where material) constitute a Brady violation. See United States v.

Whitmore, 359 F.3d 609, 620 (D.C. Cir. 2004); United States v.

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

22

Brady claim because, if the internal investigation of a testifying

detective “had been disclosed, it is unlikely that the government

would have used” the detective’s testimony, and because there

was overwhelming evidence implicating the defendants in the

charged conspiracy without that testimony).

In this case, Officer Franchak did not testify at the

suppression hearing. The government’s only witness at that

hearing was Officer Pearce. Hence, the government’s failure to

disclose impeachment evidence regarding Franchak was clearly

not material to the outcome of Johnson’s Fourth Amendment

challenge.

Franchak did testify at Johnson’s trial. But at trial, he was

only one of several arresting officers who testified about the

circumstances of Johnson’s arrest, including the discovery of the

handgun in his waistband, the marijuana in his pocket, and the

5.8 grams of crack cocaine in the Chrysler’s glove compartment.

Other officers also testified to Johnson’s inculpatory

exclamation when the police found the gun and to his statement

when they found the “crazy candy.” Had the reprimand been

disclosed and had the government regarded it as damaging, the

prosecution’s case regarding the gun and these drugs would

have proceeded in virtually identical fashion without

Franchak’s testimony.

We are not certain that the same can be said for the

government’s case regarding the crack cocaine and marijuana

subsequently recovered from the Jeep in which Johnson was

transported after his arrest. The record is unclear as to whether

Franchak was the only officer who could have testified to the

discovery of that evidence.8 By failing to raise this point in his

8

Some of the other officers’ trial testimony suggests that they

witnessed Franchak’s discovery of at least one portion of the drugs in

23

briefs, however, the defendant has waived it. See, e.g., Johnson,

216 F.3d at 1168.9 In any event, we do not believe that Johnson

could satisfy his burden of showing that the absence of

testimony regarding the drugs found in the Jeep would have

materially affected the verdict. Johnson was indicted for -- and

convicted of -- possession with intent to distribute five grams or

more of cocaine base and possession of a detectable amount of

marijuana. Three officers other than Franchak testified to

discovering 5.8 grams of crack cocaine in the Chrysler’s glove

compartment and .69 grams of marijuana in Johnson’s pocket.

Given that evidence, Johnson cannot show “a reasonable

probability that . . . the result of the proceeding would have been

different” if the reprimand had been disclosed and Franchak

removed from the witness list. Bagley, 473 U.S. at 682 (quoting

Strickland v. Washington, 466 U.S. 668, 694 (1984)).10

the Jeep, while different testimony suggests that the other officers had

walked away from the vehicle and did not return until Franchak

alerted them that he had discovered additional drugs.

9

The only basis upon which Johnson’s briefs contend Franchak

was a critical witness is that he “was the officer who made the

decision [to] investigate the alleged double parked vehicle and brought

his vehicle in a position to stop Mr. Johnson.” Appellant’s Br. 29;

Appellant’s Reply Br. 4.

10

The additional quantities of cocaine base and marijuana that

Franchak found in the Jeep could, of course, have affected Johnson’s

sentence. But Johnson does not raise any sentencing claim on appeal,

and again, it is doubtful that he could. Although Johnson obtained the

material regarding Franchak’s reprimand before the sentencing

hearing commenced, see Oral Arg. Recording at 17:41, he did not

attempt to introduce it at that hearing to impeach Franchak’s trial

testimony. The Federal Rules of Evidence would not have barred such

use. U.S. Sentencing Guidelines § 6A1.3 cmt. (“In determining the

relevant facts, sentencing judges are not restricted to information that

24

Accordingly, there is no basis for reversing the district court’s

denial of Johnson’s motion for a new trial.

VI

For the foregoing reasons, the judgment of the district court

is

Affirmed.

would be admissible at trial.”); see United States v. Bras, 483 F.3d

103, 108-09 (D.C. Cir. 2007).