ALONZO R. VAUGHN and CARL S. MORTON v. UNITED STATES

Notice: This opinion is subject to formal revision before publication in the

Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the

Court of any formal errors so that corrections may be made before the bound

volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

Nos. 11-CF-228 & 11-CF-363

ALONZO R. VAUGHN and CARL S. MORTON, APPELLANTS,

v.

UNITED STATES, APPELLEE.

Appeals from the Superior Court of the

District of Columbia

(CF2-27306-08, CF2-27160-08)

(Hon. Robert E. Morin, Trial Judge)

(Argued September 18, 2012 Decided July 3, 2014)

Cory L. Carlyle for appellant Alonzo R. Vaughn.

Amanda R. Grier, with whom Saul M. Pilchen was on the brief, for appellant

Carl S. Morton.

Peter S. Smith, 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, Chrisellen R. Kolb, Mary Chris Dobbie,

and Reagan Taylor, Assistant United States Attorneys, were on the brief, for

appellee.

Before GLICKMAN and EASTERLY, Associate Judges, and PRYOR, Senior

Judge.

2

EASTERLY, Associate Judge: Carl Morton and Alonzo Vaughn appeal their

convictions for aggravated assault (D.C. Code § 22-404.01 (2012 Repl.)) and

assault on a law enforcement officer (D.C. Code § 22-405 (c) (2012 Repl.)). Both

were charged in connection with an incident at the D.C. Jail in which a group of

men attacked a fellow inmate, Deon Spencer, and a corrections officer who came

to that inmate‟s aid, Sergeant Charles White. The victims could not identify Mr.

Morton and Mr. Vaughn; but the incident was recorded by multiple cameras, and,

although these recordings were not exactly movie-quality, two corrections officers

said they could identify Mr. Morton and Mr. Vaughn in the footage. The

government presented the testimony of these corrections officers in conjunction

with the recordings to the jury, and the jury convicted. But unbeknownst to the

defendants, one of these identifying witnesses, introduced by the government as

“Officer” Angelo Childs, had a significant credibility issue.

Six months earlier, Officer Childs had filed reports accusing a different

inmate (“Inmate A”) of assault, thereby providing a potential justification for his

use of a chemical agent on the inmate. His accusations were investigated by the

Department of Corrections (DOC) Office of Internal Affairs (OIA). The DOC

OIA determined in a “Final Report,” that, among other things, video footage of this

incident did not show the alleged inmate assault.

3

The OIA Officer who wrote the OIA Final Report about the Inmate A

incident stated in a sworn affidavit (submitted by the government during post-trial

proceedings in this case) that he sent the OIA Final Report to the DOC Office of

the Director, the entity in charge of disciplinary action, and he was later informed

that the DOC Office of the Director demoted Officer Childs from Lieutenant to

Sergeant after it received the report. In addition, this OIA Officer, who also

assisted the government in the investigation of the Spencer-White attacks, stated in

his affidavit that he “notified the U.S. Attorney‟s Office for the District of

Columbia of the Investigative Report concerning Lieutenant Childs and his

subsequent demotion” on September 15, 2009, approximately two months before

Mr. Vaughn and Mr. Morton‟s trial.

The government did not disclose this favorable impeaching information to

the defense. Instead, a week before trial, the government filed a motion in limine

to preclude the defense from questioning Officer Childs about the misconduct

detailed in the OIA Final Report. In that motion, the government provided a

“summary” of the OIA Final Report that gave no indication that the OIA had

investigated a potentially false allegation of an inmate assault by Officer Childs

and others and determined that this allegation was false; the government also did

not reveal Officer Childs‟s resulting demotion. Rather, the government‟s summary

4

focused exclusively on only a portion of the OIA Final Report that considered

whether Officer Childs (1) had properly used a chemical agent on the accused

inmate, who the government (quoting the very portion of Officer Childs‟s Incident

Report the OIA had discredited) indicated had been acting aggressively, and (2)

had falsely indicated in a report that the inmate was unrestrained. Portraying this

investigation with skepticism, the government argued that it had little to do with

Officer Childs‟s credibility because the OIA had determined Officer Childs had

only “suggest[ed]” that the inmate was unrestrained.

The difference between the government‟s summary of the OIA investigation

and the actual OIA Final Report almost certainly would have come to light had the

government provided the trial court with the full copy. It did not. Along with its

summary, the government submitted to the trial court ex parte what it said was the

OIA Final Report, but in fact was only the first five pages of the ten-page report

(and included none of the documents in the appendix, 76 pages in all). The first

five pages of the OIA Final Report contain “background” information,

investigative notes, and a full reproduction of Officer Childs‟s account of an

inmate assault in his Incident Report without any indication that that account was

being questioned; the findings adverse to Officer Childs begin on the sixth page.

5

Under Brady v. Maryland, 373 U.S. 83 (1963), the government has a

constitutionally mandated obligation to disclose to the defense, prior to trial,

information in the government‟s actual or constructive possession that is favorable

and material. The government did not fulfill its due process disclosure obligations

in this case. Moreover, its failure to provide the court and the defense with

complete and accurate information as to the contents of the OIA Final Report

thwarted the trial court‟s ability to “require strict compliance with the demands of

Brady . . . in the first instance.” Boyd v. United States, 908 A.2d 39, 62 (D.C.

2006). As to Mr. Morton, we reverse his two convictions on this ground and

remand for a new trial after the government has certified in writing that it has

fulfilled its duty to learn of and disclose all the favorable information in the

possession of the United States Attorney‟s Office and the entire the prosecution

team. As for Mr. Vaughn, we determine that a jury instruction conceded to be

erroneous by the government requires reversal of his conviction for aggravated

assault. We reject the remaining claims raised by Mr. Morton and Mr. Vaughn.

I. The Spencer-White Attacks, the DOC Investigation, and Mr. Morton

and Mr. Vaughn’s Trial

Mr. Morton and Mr. Vaughn were prosecuted for their alleged involvement

in an attack at the D.C. Jail on a corrections officer, Charles White, but it all began

6

with an attack on a fellow inmate, Deon Spencer.1 On December 27, 2007, Mr.

Spencer was in the communal dining area of the Southwest 2 (“SW2”) housing

unit when an inmate began hitting and kicking him. Corporal James Weathers, a

corrections officer on duty in SW2, tried to assist Mr. Spencer, but he was

outnumbered by the many inmates who rushed into the area and joined in the

attack. Corporal Weathers radioed for help, and “that‟s when everything just broke

apart.” He described the scene as a “melee.”

Sergeant White, assigned to the Southeast 2 housing unit, responded to

Corporal Weathers‟s call for help. As he tried to quell the disturbance, he was

attacked. Sergeant White was initially pushed onto a dining table, but he

immediately got back up and moved away from the table. At some point, Sergeant

White ended up on the floor. Several inmates then kicked him about the head and

body and knocked him unconscious. As he lay in the walkway, inmates ran back

and forth through the area, over and around his body.

1

Bobby Johnson and Lorenzo Woods, Mr. Morton and Mr. Vaughn‟s co-

defendants at trial, were among those charged with the attack on Mr. Spencer. Mr.

Woods was acquitted; Mr. Johnson is not a party to this appeal.

7

In the meantime, a number of other corrections officers responded to the

scene.2 The incident ended when a chemical agent was dispersed, forcing inmates

back into their cells. SW2 went on lockdown.

Mr. Morton and Mr. Vaughn were not initially identified as participants in

the attack. The victims, Mr. Spencer and Sergeant White, were unable to identify

their assailants from the 156 inmates housed on SW2 on the day of the attack. The

officers who had seen and responded to the attack wrote Incident Reports

immediately after the incident identifying a number of inmates they had seen

participating in the violence—many of whom were charged and eventually pled

guilty in connection with this incident.3 Mr. Morton and Mr. Vaughn were not

among these individuals.

2

Sergeant Jimmy Harper, the senior officer on duty, succeeded in

restraining one inmate, but could not recall if he returned to the fray thereafter.

Officer Tamira Robeson, who was working her first day on the unit and was

assigned to the “bubble,” the control module for the unit, remained at her post.

3

See United States v. Wilson, No. 2008-CF2-27313 (D.C. Super. Ct. Oct.

19, 2009) (guilty plea entered); United States v. Collins, No. 2008-CF2-27154

(D.C. Super. Ct. Oct. 19, 2009) (same); United States v. Tomlinson, No. 2008-CF2-

27301 (D.C. Super. Ct. Sept. 15, 2009) (same); United States v. Lyles, No. 2008-

CF2-27159 (D.C. Super. Ct. July 9, 2009) (same); United States v. Cheadle, No.

2008-CF2-27153 (D.C. Super. Ct. June 30, 2009) (same); United States v. Al-

Delaema, No. 2008-CF2-27146 (D.C. Super. Ct. Mar. 3, 2009) (same). See also

United States v. Owens, No. 2008-CF2-27313 (D.C. Super. Ct. Oct. 14, 2009)

(charges dismissed).

8

OIA Investigator Benjamin Collins, who led the DOC investigation into this

incident, sought to identify additional individuals involved in the attacks using

recordings of the incident from fixed cameras capturing images of SW2 from

different angles. The recordings were of limited utility on their own, however. In

particular, the footage of the attack on Sergeant White is of extremely poor quality.

Instead of a seamless “moving picture,” it is a choppy series of still images,

capturing a chaotic sequence of events only at regular intervals. In addition, the

images are highly pixelated and the faces are, as DOC staff conceded, “blurry.”4

Accordingly, the DOC set out to find corrections officers who could identify

individuals in the recorded footage.

The morning after the attacks, OIA Investigator Collins met with Officer

Childs.5 Officer Childs had not been on duty the day prior but he had already

watched some footage of the incident with Officer Harper. Officer Childs told

4

The vast majority of the inmates seen in the recordings are young African-

American males within a range of average height and build. With the exception of

one inmate dressed all in white, these inmates were wearing the DOC standard-

issue one-piece orange jumpsuit. Presumably to facilitate identification, the

inmates‟ jumpsuits bear armbands with an inmate‟s name and a number assigned

to the individual inmate, but this identifying information is not visible in the

videotapes.

5

Although his precise rank proved to be a matter of some significance, the

government generically introduced Mr. Childs as “Officer” at trial and for

consistency‟s sake we follow suit.

9

OIA Investigator Collins that “he was very familiar with the vast majority of the

inmates in the unit and that he . . . had named at least 11 inmates who he saw in the

video that were involved in the altercation.” Apparently he then identified Mr.

Morton as a participant in the attack on Sergeant White. Several months later OIA

Investigator Collins brought Officer Childs to the U.S. Attorney‟s Office, at which

point Officer Childs identified Mr. Vaughn as another participant in this attack.

OIA Investigator Collins also spoke to Sergeant Harper in the course of his

investigation. Sergeant Harper ultimately identified Mr. Morton and Mr. Vaughn

as participants in the attack on Sergeant White as well.

Beyond Officer Childs‟s and Sergeant Harper‟s identifications of

participants from the video footage, the record does not reflect that the government

developed any other evidence against Mr. Morton and Mr. Vaughn. Mr. Morton

and Mr. Vaughn were each indicted in November 2008 for their alleged

involvement in the attack on Sergeant White.

Mr. Morton and Mr. Vaughn went to trial a year later, in November 2009.

The government argued that Mr. Vaughn was the only inmate dressed all in white

and that he had given Sergeant White “one good shove.” The government argued

that Mr. Morton was one of the inmates who kicked Sergeant White as he lay on

10

the floor. In support of these theories, the government presented Officer Childs‟s

testimony. Explaining his ability to identify Mr. Morton and Mr. Vaughn as

participants in the attack on Sergeant White, Officer Childs testified that he had

been working on the unit for over a year, that Mr. Morton and Mr. Vaughn had

each been on the unit for several months, that he knew them and their facial and

physical features well, and that he could clearly see them in the video footage and

in multiple stills taken from the video footage. Although defense counsel was able

to highlight minor inconsistencies in Officer Childs‟s testimony on cross-

examination, Officer Childs‟s testimony was largely unimpeached.

Sergeant Harper testified after Officer Childs. He could only identify Mr.

Morton at one point in the recorded footage of the attack on Sergeant White and

only recognized Mr. Morton in one of several video stills of that attack.6 Sergeant

Harper was impeached with the fact that, despite his claim at trial that he “kn[ew]

on December 27 that all of [the individuals he identified at trial] were involved,”

6

Even though Mr. Morton and Mr. Vaughn were not charged with any

crime in connection with the attacks on Mr. Spencer, Sergeant Harper initially

identified them as participants in the attack on Mr. Spencer. The government did

not ask Sergeant Harper to identify Mr. Morton or Mr. Vaughn in the footage of

that attack.

11

he had not named Mr. Morton or Mr. Vaughn in his initial Incident Report written

December 27.

In closing, the government made clear that its case turned on the jury‟s

assessment of the credibility of the DOC officers who had testified and had

identified the defendants. The government began by asking the jury “to consider

all of the evidence”: “[t]he video, the documents[,] and importantly the testimony

that you heard from the Corrections Officers.” The government informed the jury

that its ultimate task was “to assess the credibility of those officers when they were

on the stand. That‟s what you‟re asked to do here today.” Specifically addressing

the identifications made by Officer Childs and Sergeant Harper, the government

returned to the theme of credibility: “[P]art of your job in this case is to assess the

credibility of these officers on the stand. . . . Angelo Childs told you repeatedly and

strongly . . . [t]hat is Alonzo Vaughn and that is Carl Morton. Jimmy Harper, same

thing.” And the government concluded by “emphasiz[ing] again, this case is . . .

about your credibility judgments.” It was a winning argument. Even if the jury

was not convinced by Sergeant Harper‟s somewhat inconsistent and weak

testimony, it had little or no reason to doubt the testimony of Officer Childs.

12

II. The Brady Claim

Mr. Morton and Mr. Vaughn both argue that there were reasons to doubt

Officer Childs‟s credibility, but that the government did not timely or accurately

apprise the defense of this information. We return to the facts on record.

A. The Pertinent Facts

1. The OIA Final Report

The following facts are taken from the OIA Final Report. In the spring of

2009 (as the parties prepared for trial in Mr. Morton and Mr. Vaughn‟s case),

Officer Childs participated in a mission to eliminate contraband at the D.C. Jail.

Officer Childs, at that time a lieutenant, was a supervising officer on the Search

and Recovery Team (SRT), along with Major Nora Talley and Lieutenant Gregory

McKnight. Sergeant David Thomas and his drug-sniffing dog, “Reggie,” also

assisted with the search for contraband.

13

In the course of this contraband recovery mission, Inmate A7 and his cell

were searched by members of the SRT. Specifically, Inmate A was strip searched

in his cell and then restrained and taken by Lieutenant McKnight to the Body

Orifice Security Scanner (BOSS Chair);8 meanwhile the drug-sniffing dog

inspected Inmate A‟s cell. Both before and after his trip to the BOSS Chair,

Inmate A told Lieutenant McKnight that he was scared of dogs and of the drug-

sniffing dog in particular.

Once Inmate A returned from the BOSS Chair, Lieutenant McKnight left

him, still in restraints, standing near the bubble in the presence of Officer Childs

and Major Talley. At this point, Inmate A “stated emphatically that he would not

go anywhere near the canine.” Although the protocol for the contraband recovery

mission did not include using the drug-sniffing dog to inspect inmates, Officer

Childs grabbed Inmate A‟s arm and signaled to Officer Thomas to bring the dog

over to Inmate A. As the dog approached, Inmate A tried to back away but Officer

Childs “halted his movement.” Inmate A “stomped his foot in the direction of the

canine”; Officer Childs “responded by placing his container of chemical agent near

7

We retain the trial court‟s and parties‟ convention of calling this individual

“Inmate A.”

8

A BOSS Chair detects metal objects secreted inside a person‟s body.

14

[Inmate A‟s] face.” Sergeant Thomas then “positioned” the dog behind [Inmate A]

and “placed his right hand against the lower calves and then on the lower back of

[Inmate A].” The dog “followed with his muzzle where Sergeant Thomas placed

his hand.” The dog “stood up on his hind legs and attempted to rest his paws on

[Inmate A‟s] back.” Inmate A recoiled from this contact, but “his movement was

impeded when Lieutenant Childs, who maintained physical control of [Inmate A],

sprayed a single burst of chemical agent directly into [Inmate A‟s] face.”

That same day, Officer Childs prepared an Incident Report explaining the

reason for his use of force and a Disciplinary Report accusing Inmate A of “Lack

of Cooperation [and] assault without serious injury.” In both reports, Officer

Childs asserted that Inmate A had “refuse[d] to be search[ed] by the [dog]” and

had “started kicking at” the drug-sniffing dog and that Officer Childs had sprayed

the chemical agent in Inmate A‟s face to “seize [sic] his disruptive behavior.”

Officer Childs then stated in the Incident Report that Inmate A was “placed in

restraints” and escorted out of the unit, thereby effectively stating that Inmate A

had previously been unrestrained. Officer Childs concluded his Incident Report

with the assertion that “[t]his incident stemmed from the violent/disruptive

behavior of [Inmate A].” Major Talley and Sergeant Thomas also filed reports in

which they told a similar narrative of Inmate A‟s unprovoked, aggressive behavior.

15

According to the OIA Final Report, video footage contradicted all of these

reports. Four days after this incident, at the request of the Director of the DOC, the

OIA opened a formal investigation. The lead investigator was Benjamin Collins,

the same OIA investigator who had led the inquiry into the Spencer-White attacks

and had brought Officer Childs to the U.S. Attorney‟s Office so that he could serve

as a witness. After OIA Investigator Collins completed his investigation, the OIA

issued the Final Report on June 27, 2009.

The OIA Final Report is ten pages long and includes appendices totaling 76

pages.9 The first five pages of the OIA Final Report contain “background”

information, investigative notes, and a full reproduction of Officer Childs‟s

account, in his Incident Report, that Inmate A had tried to thwart a legitimate

search for contraband and acted with unprovoked aggression. The findings

adverse to Officer Childs and his colleagues do not begin until page six. At that

9

The appendices include Officer Childs‟s Incident Report explaining his

use of a chemical agent and his Disciplinary Investigative Report formally

accusing Inmate A of “assault without serious injury”; it also includes reports from

Major Talley, Sergeant Thomas, and Lieutenant McKnight, a “Letter of Direction”

from Major Talley to Officer Childs, see infra note 10, and three DOC Program

Statements addressing (1) use of force and application of restraints, (2) the policies

of the canine unit, and (3) the Employee Code of Ethics and Conduct.

16

point, the OIA memorialized its determination that Inmate A had not—as Officer

Childs had claimed—engaged in “disruptive behavior” necessitating use of force.

Specifically, the report states that “[v]ideo footage of the incident does not support

the allegation that [Inmate A] assaulted any Correctional Officer or canine.” On

subsequent pages, the report reviewed and then similarly discredited the stories

told by Sergeant Thomas and Major Talley. With respect to Major Talley‟s report,

the OIA determined that “[v]ideo footage. . . does not depict any malicious

aggressive behavior towards the canine or any staff member by [the] inmate. . . ,

and therefore contradicts Major Talley‟s written account.” With respect to

Sergeant Thomas, the OIA likewise determined that notwithstanding his assertions

that Inmate A “kick[ed] at” the dog, “video footage capturing this occurrence on

the tier shows no contact or direct interaction between [Inmate A] and canine

Reggie.”

The OIA Final Report further notes that, although Officer Childs‟s

“narrative suggests that at the time of the incident, [Inmate A] was not restrained,”

“[u]pon review of the facts and circumstances of this incident, it is evident that

[Inmate A] was in restraints and not a threat to „normal operations‟ when he was

sprayed with chemical agent by Lieutenant Childs.” In other words, the OIA

determined that, to the extent the false story of an inmate assault was meant to

17

justify the use of a chemical agent to subdue Inmate A, it failed not only because it

was false, but also because it did not account for the fact that Inmate A was already

restrained.10

The OIA Final Report concludes with four summary “Findings” reiterating

that Officer Childs “us[ed] . . . a chemical agent on a restrained inmate who posed

no immediate danger to himself or others” thereby violating the DOC “use of force

continuum”; that he “submitted a false and or misleading Incident Report of the

facts in stating that the inmate was placed in restraints after being sprayed with

chemical agent” and that Major Talley and Sergeant Thomas had also filed “false

and[/]or misleading” Incident Reports asserting that Inmate A had attempted to

kick the drug sniffing dog and tried to “fight” Officer Childs.11

10

The OIA Final Report acknowledges that Major Talley issued Officer

Childs a Letter of Direction reprimanding him for “Neglect of Duty and

Incompetence” in connection with his use of a chemical agent on Inmate A when

Inmate A was “restrained from the rear, and posed no immediate threat.” But the

OIA Final Report indicates that this Letter of Direction was deficient because

Major Talley, who herself had submitted a report recounting Inmate A‟s alleged

aggression, “did not [c]ite Lieutenant Childs for submitting a false and[/]or

misleading Incident Report.” Instead she, like Officer Childs, adopted the

narrative that Inmate A had been “combative.”

11

Although these “Findings” highlight that Officer Childs “submitted a

false and[/]or misleading Incident Report” in relation to whether Inmate A was

restrained at the time Officer Childs sprayed him in the face with a chemical agent,

the body of the report as a whole makes clear that all three officers told a similar

(continued…)

18

The OIA merely conducts investigations; it does not recommend disciplinary

action. Thus, according to the affidavit by OIA Investigator Collins later filed in

this case by the government, see infra p. 25, after the OIA Final Report was

completed, he sent it to the DOC‟s Office of the Director. Again according to

Investigator Collins‟s affidavit, the Office of the Director of the DOC issued to

Officer Childs “formal and written notification” on August 26, 2009, that he had

been demoted from Lieutenant to Sergeant. It was Investigator Collins‟s

understanding that Officer Childs had signed this notice,12 and that Officer Childs‟s

demotion became effective September 13, 2009. OIA Investigator Collins stated in

his affidavit that “[o]n September 15, 2009, [he] notified the U.S. Attorney‟s

(…continued)

story about Inmate A acting aggressively and assaulting Officer Childs and the dog

that the OIA determined was untrue.

12

Discipline of DOC employees is governed by the Comprehensive Merit

Personnel Act, D.C. Code §§ 1-616.51 to -.54 (2012 Repl.). Implementing

regulations require the agency to give such notice and the employee to

acknowledge it. See 6-B DCMR § 1601.1 (2008) (covered employees may not be

subject to discipline, including “reduc[tions] in grade” “except as provided in this

chapter”); 6-B DCMR § 1614.1 (2004) (“employee shall be given a notice of final

decision in writing . . . informing him . . . of the reasons” for corrective or adverse

action); 6-B DCMR § 1614.4 (2004) (notice shall be delivered to employee “on or

before the time the action is effective”); 6-B DCMR § 1614.5 (2004) (employee

“shall be asked to acknowledge its receipt”).

19

Office for the District of Columbia of the [OIA Final Report] concerning [then]

Lieutenant Childs and his subsequent demotion.”

2. The Government’s Nondisclosure

The government did not turn over the OIA Final Report to the defense prior

to the November 2009 trial, nor did it disclose to the defense that it had

information Officer Childs had been demoted by DOC in connection with the

incident with Inmate A. Instead, less than a week before trial began, the

government, represented by the two Assistant United States Attorneys who

prosecuted the case, filed (1) a motion in limine to prevent the defense from cross-

examining Officer Childs on any issue related to the OIA Final Report, and (2) an

accompanying ex parte motion requesting that (a) the court review in camera the

first five pages of the ten-page report (“the five-page ex parte submission”), and

(b) the court permit the government to file this attachment under seal. The

government did not inform the court that the five-page ex parte submission was not

the complete OIA Final Report or that it was missing its appendices.13

13

To a reader unfamiliar with the full report, it is not obvious that the five-

page excerpt is incomplete. No text is cut off mid-sentence; rather, the bottom of

the fifth page reaches what might be considered a stopping point after reproducing

Officer Childs‟s account of Inmate A‟s alleged assault from his Incident Report.

20

The government‟s stated goal in filing its motion in limine was “to preclude

the defense from referring to the fact DOC Office of Internal Affairs may have

made potentially adverse credibility findings” against Officer Childs. The

government told the court and the defense that the OIA “investigation resulted in

two findings related to Officer Childs: (1) Officer Childs‟ use of force violated

DOC policy and (2) Officer Childs submitted a false or misleading statement in

reciting the facts,” specifically, that “DOC Internal Affairs found that Officer

Childs‟ statement that Inmate A was placed in handcuffs after being sprayed with a

chemical agent was false or misleading.” The government pushed back against the

second of these “two findings” and refused to “conced[e],” that Officer Childs “in

fact made a false and/or misleading statement.”

To support this position, the government provided the court and the defense

with a “summary of an incident . . . in which DOC Internal Affairs issued a Final

Report.” This summary, however, did not mention that the OIA had determined

that Officer Childs and his fellow corrections officers had falsely accused Inmate

A of assault. Instead the government‟s summary indicated that Inmate A had acted

aggressively. The government noted that there had been a “heated discussion

between Inmate A and Officer Childs,” and that Officer Childs had thought Inmate

21

A was engaging in a “deliberate attempt . . . to circumvent the search process.”

The government then quoted the OIA Final Report‟s reproduction of Officer

Childs‟s (discredited) account of the incident in which he stated that when he and

his colleagues “attempted to search [Inmate A], [Inmate A] started kicking at the

dog” and then stated that “Because [Inmate A‟s] actions interfered with the normal

operations of the facility, I sprayed one burst of chemical agent . . . [and] then

instructed [Inmate A] to seize [sic] his disruptive behavior.”

The government not only credited a narrative of inmate aggression that the

OIA had expressly discredited without disclosing that fact, thereby providing an

incomplete recapitulation of the content of the OIA Final Report, it also cast doubt

on the report even as to its purported focus—namely, whether Officer Childs had

falsely indicated in reports that the inmate was unrestrained when Officer Childs

sprayed him with a chemical agent. The government asserted that the text of

Officer Childs‟s report was “ambiguous at best” and that “it is not apparent that

[Officer Childs] lied in his report.” The government further stated that “[t]he

conclusion that Officer Childs made a false or misleading statement is at odds with

the body of the [Final OIA Report] and does not appear evident from the text of

Officer Childs‟s [Incident Report].”

22

The government buttressed its intimations that the OIA investigation was

unreliable when it argued its motion on the first day of trial. Although the

government acknowledged that it “expect[ed] [Officer Childs] to say that he [had

been] demoted related to this incident,” it immediately undercut the force of this

new disclosure by indicating that Officer Childs had had little opportunity to

address or contest the report; indeed, the government asserted that Officer Childs

“ha[d] never seen” the OIA Final Report, and thus he would not be able to speak to

“the particulars.” Based on its description of the OIA Final Report as limited in

scope and undependable in outcome, the government took the position that the

April 2009 incident did not “bear[] directly upon” Officer Childs‟s veracity and

thus was not the proper subject of cross-examination.

The trial court relied on the government‟s representations regarding the OIA

Final Report, and it denied repeated requests by the defense14 during the trial for

disclosure of the actual report. Without the actual report, the defense had no

ability to call the government‟s characterization of the report into question or to

14

Counsel for Mr. Woods played the lead role in advocating for disclosure

of the OIA Final Report to the defendants.

23

persuade the court to order its disclosure.15 The court itself was in no position to

assess the adequacy of the government‟s summary of the OIA investigation. The

court had the government‟s five-page ex parte submission, but that incomplete

document concluded with Officer Childs‟s (subsequently discredited) account of

the incident with Inmate A; thus it said even less about Officer Childs‟s

misconduct than the government‟s summary did.

Mr. Morton and Mr. Vaughn did not receive a copy of the OIA Final Report

until three months after trial, in February 2010, after they had already moved for a

new trial on other grounds.16 In a “Supplemental Motion for a Judgment of

15

At the pretrial hearing, the trial court briefly considered ordering the

government to disclose the report subject to a protective order, but it abandoned

this option at the behest of the prosecution. The government asserted that, with

respect to the other corrections officers named in the report, “there are employment

issues,” and that it did not “believe that there is anything in the report that wasn‟t

disclosed in the motion [to limit cross-examination of Officer Childs].”

16

Mr. Morton and Mr. Vaughn initially moved for a judgment of acquittal

or in the alternative a new trial arguing, among other things, that their Sixth

Amendment right to confrontation had been violated when they were denied a

“meaningful” opportunity to cross-examine Officer Childs about the OIA Final

Report. At a February 3, 2010 status hearing on that motion, the court ordered the

government to disclose the full OIA Final Report pursuant to a protective order

(the very procedure the government had successfully opposed during trial). The

government subsequently disclosed the ten-page Final Report to the defense, but

did not attach any of the appendices, apparently because the prosecutors did not

have them; they had never asked DOC for a copy of the complete OIA Final

Report with all of its attachments.

24

Acquittal and, in the Alternative, Defendant‟s Motion for a New Trial,” the defense

argued that the government had violated its pretrial disclosure obligations under

Brady. Sentencing was delayed and a series of hearings over a period of months

followed.

During this time, the government took no steps to inform the court that the

five-page ex parte submission had been incomplete. The court was left to figure

this out by itself, in the midst of a status hearing two months after the defense filed

its Brady claim. When the court was shown the defense copy of the OIA Final

Report, which included all ten pages, the court noted that the final pages looked

unfamiliar. The government initially could not “represent what may . . . have

happened.” It later informed the court that it had failed to provide the court with

the full OIA Final Report “by inadvertence.” Even so, the government asserted

that the “erroneously omitted portion” of the OIA Final Report changed nothing.

Instead the government asserted that it had “fully disclosed and discussed” in its

motion in limine “all of the information detailed in pages six through nine” of the

report.

Even after the court and the defense received complete copies of the OIA

Final Report, the government stood by its characterization of the OIA investigation

25

as one solely concerned with Officer Childs‟s use of force and his alleged false

reporting related to the use of force. It further denied that it was “aware” that

Officer Childs had ever been formally disciplined in connection with this alleged

misconduct. The government took the position that Officer Childs had “accepted a

voluntary demotion” as an informal resolution to an inconclusive investigation

regarding “allegations of false and/or misleading statements,” and that the only

formal discipline Officer Childs had received in connection with the Inmate A

incident was the Letter of Direction for improper use of force issued by Major

Talley.17

Almost a year after the defense filed its supplemental motion for a new trial

raising a Brady claim, the government filed a document that could have clarified

matters: the affidavit from OIA Investigator Collins.18 In this affidavit, OIA

17

When asked by the court at one post-trial hearing if this Letter of

Direction “summarized aspects of the report,” the government answered, “that‟s

correct,” even though the Letter of Direction was issued before the commencement

of the OIA investigation and even though the OIA Final Report specifically

determined that the Letter of Direction was inadequate because it failed to

discipline Officer Childs for making a false report. See supra note 10.

18

By this time, the trial court had figured out that, based on the dates, Major

Talley‟s Letter of Direction to Officer Childs could not summarize the OIA Final

Report and directed the government to provide it with more information about

what happened to Officer Childs after the completion of the OIA Final Report.

Presumably, this is why the government filed OIA Investigator Collins‟s affidavit.

26

Investigator Collins explained that (1) Major Talley‟s Letter of Direction did not

“supersede or impede” the OIA investigation; (2) He “officially completed” the

OIA Final Report “[o]n June 27, 2009 . . . and forwarded it to Office of the

Director for the DC Department of Corrections,” because the DOC OIA does not,

“as a matter of routine or in this specific case. . . recommend disciplinary action”;

(3) “Several months after the completion of [the OIA Final Report] [he] was

verbally informed that Lieutenant Childs was demoted to the rank of Sergeant as a

result of his actions on April 7, 2009”; and (4) “On September 15, 2009, [he]

notified the U.S. Attorney‟s Office for the District of Columbia of the [OIA Final

Report] concerning Lieutenant Childs and his subsequent demotion.” OIA

Investigator Collins also stated that he acquired (in January 2011) more details

about Officer Childs‟s demotion. Specifically, he learned that Officer Childs had

“received formal and written notification of his demotion on August 26, 2009 . . .

from the Office of the Director of the Department of Corrections and [that this

notification] was signed by Lieutenant Childs.” OIA Investigator Collins also

learned from “a DC Department of Corrections, Human Resources Specialist” that

Officer Childs had been “formally demoted . . . on September 13, 2009.” The

government, however, filed this affidavit, without any accompanying explanation,

after more than a year of post-trial litigation in this case, and it never

27

acknowledged that OIA Investigator Collins‟s sworn statements contradicted its

earlier representations.

When the parties returned to court a week after this filing, the court ruled on

the defendants‟ supplemental motion for a new trial. The court determined that

there had never been a “finding of untru[th] telling against Officer Childs.” The

court further determined that the affidavit “essentially vindicates” that, “although

the Internal Affairs Division did do an investigation of Officer Childs, no report

was issued by that office and no action was taken by that office.” Accordingly, the

trial court denied the motion from the bench “for the reasons stated in the

government‟s opposition” to the defendants‟ motion.19

19

The trial court also referred to the unpublished memorandum opinion

affirming co-defendant Bobby Johnson‟s conviction. See Johnson v. United States,

No. 10-CF-205, Mem. Op. & J. (D.C. Mar. 9, 2011). The government has argued

on appeal that that opinion is “instructive” if not dispositive of Mr. Morton and Mr.

Vaughn‟s Brady claim. We disagree. Setting aside that the panel chose not to

publish its disposition, the panel in that case considered a different issue (Mr.

Johnson‟s assertion that his right to confront Officer Childs had been violated) on a

very different record (the panel never had the benefit of the post-trial revelations

that were made in this case).

28

B. Brady Analysis

Our adversarial system is premised on the belief that “[s]ociety wins not

only when the guilty are convicted but when criminal trials are fair.” Brady, 373

U.S. at 87. Prosecutors have a critical role in ensuring the fairness of criminal

trials. They are the representative of the sovereign, whose “interest . . . in a

criminal prosecution is not that it shall win a case, but that justice shall be done.”

Berger v. United States, 295 U.S. 78, 88 (1935); see also Miller v. United States,

14 A.3d 1094, 1107 (D.C. 2011) (explaining that prosecutors must “seek justice

before victory”). Prosecutors are thus obligated to play a dual role at trial; they

must advocate for the government “with earnestness and vigor,” Berger, 295 U.S.

at 88, but they also have an obligation under Brady “to assist the defense in making

its case.” United States v. Bagley, 473 U.S. 667, 675 n.6 (1985). In this “limited

departure from a pure adversary model,” id., prosecutors have a constitutionally

imposed duty to disclose to the defense pretrial information that is “favorable to an

accused . . . [and] material either to guilt or to punishment.” Brady, 373 U.S. at 87.

To determine on appeal whether the government, through its representatives

in the trial court, has violated its obligations under Brady, we consider: (1)

whether the information in question is “favorable to the accused”; (2) whether this

29

information was possessed and suppressed by the government, “either willfully or

inadvertently”; and (3) whether that information was material, i.e., whether there is

“a reasonable probability that, had the evidence been disclosed, the result of the

proceeding would have been different.” Miller, 14 A.3d at 1109. If the

information was favorable, suppressed, and material, then reversal is required,

“irrespective of the good faith or bad faith of the prosecution.” Brady 373 U.S. at

87.

Reviewing the trial court‟s legal conclusions de novo and its underlying

findings of fact for clear error, Miller, 14 A.3d at 1120, we consider each criterion

for a Brady violation in turn.

1. Favorable Information Subject to Disclosure

At least in the abstract, it is easy to articulate what constitutes “favorable”

information subject to disclosure under Brady. It is information “of a kind that

would suggest to any prosecutor that the defense would want to know about it”

because it helps the defense. See Miller, 14 A.3d at 1110 (quoting Leka v.

Portuondo, 257 F.3d 89, 99 (2d Cir. 2001)). The defense perspective controls. See

id. (“[T]he critical task of evaluating the usefulness and exculpatory value of the

30

information is a matter primarily for defense counsel, who has a different

perspective and interest from that of the police or prosecutor.” (quoting Zanders v.

United States, 999 A.2d 149, 164 (D.C. 2010))).

Favorable information includes impeaching information. See Giglio v.

United States, 405 U.S. 150, 154-55 (1972). Indeed, although the Supreme Court

held in Bagley, 473 U.S. at 676, that the failure to disclose impeaching information

is not “more egregious” than a failure to disclose affirmatively exculpatory

information, both the Supreme Court and this court have repeatedly made clear that

impeaching information does not have a lesser standing in the context of the

government‟s Brady disclosure obligations. Rather, “[t]he jury‟s estimate of the

truthfulness and reliability of a given witness may well be determinative of guilt or

innocence.” Bagley, 473 U.S. at 676 (quoting Napue v. Illinois, 360 U.S. 264, 269

(1959)); see also Bennett v. United States, 797 A.2d 1251, 1256 (D.C. 2002)

(“Impeaching evidence is exculpatory.” (internal quotation marks omitted)).

In this case, whether favorable information existed that was subject to

disclosure under Brady turns on how one characterizes the OIA investigation and

its outcome. When the trial court denied Mr. Morton‟s and Mr. Vaughn‟s motion

for a new trial, it accepted the government‟s representations that (1) the OIA

31

investigation concerned Officer Childs‟s use of force and alleged false reporting

related to his use of force, and (2) Officer Childs‟s demotion was something more

in the nature of an administrative plea deal to resolve an inconclusive inquiry that

ultimately was unrevealing regarding Officer Childs‟s credibility. As an appellate

court, we ordinarily defer to the trial court‟s findings of fact, unless those findings

are clearly erroneous. See Miller, 14 A.3d at 1120. Here, record documents, the

OIA Final Report and OIA Investigator Collins‟s affidavit, contradict the court‟s

findings. We recognize that the trial court was constrained in its ability to assess

these documents by the government‟s late production and continued

misrepresentation or nondisclosure of the information in its possession. Unlike the

trial court, however, we have had, from the outset of our review, the entire OIA

Final Report with its appendices. With these advantages that the trial court did not

share, we conclude that the trial court was misled and that its adoptive fact-finding

was clearly wrong.

Although the purpose of the OIA investigation as articulated in the OIA

Final Report was “to identify the facts and circumstances regarding the use of [a

chemical agent] by Lieutenant Angelo Childs” in April 2009, the report itself

reveals that the investigation went beyond an inquiry into whether Officer Childs

complied with use-of-force guidelines. Ultimately, the OIA determined that

32

Officer Childs and his fellow DOC Officers had falsely accused Inmate A of

assaultive behavior, and they had all filed false reports to this effect. The OIA also

determined that Officer Childs falsely suggested that the inmate was unrestrained

and Officer Childs sprayed him with a chemical agent to stop the (fabricated)

assault. OIA Investigator Collins‟s affidavit completes the story. The inescapable

inference is that the Office of the Director credited all the conclusions of the OIA

Final Report and as a consequence meted out significant discipline by demoting

Officer Childs from Lieutenant to Sergeant.20

Once we clarify the actual subject and the apparent outcome of the OIA

investigation, the determination that this information was favorable information

subject to disclosure under Brady is not difficult. The OIA‟s determination of

Officer Childs‟s false reporting was clearly impeaching, and was the sort of

information in which any competent defense lawyer would have been intensely

20

The government has never denied that Officer Childs was demoted in

connection with the Inmate A incident detailed in the OIA Final Report; it simply

presented the contents of that report as something other than they are. One might

try to argue that Officer Childs‟s demotion may have been related to only some but

not all of the misconduct actually found by the OIA (e.g., the improper use of force

but not the false reporting). But such an argument would be unpersuasive as

Officer Childs had already been disciplined (via the Letter of Direction) for his

improper use of force, and the submission of false reports—in particular reports

falsely accusing an inmate of criminal conduct—are hardly insignificant.

33

interested. See Milke v. Ryan, 711 F.3d 998, 1007 (9th Cir. 2013) (“That [a law

enforcement officer] was disciplined for lying on the job obviously bears on his

credibility and qualifies as Giglio evidence.”).

Of course the favorability of the OIA Final Report does not turn on its

ultimate truth or the government‟s assessments thereof. The government could not

withhold this information because it did not trust the conclusions of the OIA Final

Report, or because it did believe its witness, Officer Childs, who professed

innocence of false reporting21 and asserted ignorance of the reason for his

discipline.22 As we said in Zanders and Miller, “[i]t is not for the prosecutor to

decide not to disclose information that is on its face exculpatory based on an

assessment of how that evidence might be explained away or discredited at trial, or

ultimately rejected by the fact finder.” Miller, 14 A.3d at 1110 (quoting Zanders,

999 A.2d at 164); see also Smith v. Cain, 132 S. Ct. 627, 630 (2012) (holding that a

21

See infra pp. 46-47.

22

We note that the documentation of the notice of this action that Officer

Childs should have received, see supra note 12, is not in the record. But the record

does include OIA Investigator Collins‟s sworn statements giving the specific dates

on which notice was issued and became effective and affirming his understanding

that Officer Childs signed this notice, thus indicating that the requisite notice

requirements were followed. We further note that in conformance with these

regulations Officer Childs was given notice (which he signed) of the far less

consequential (and subsequently deemed inadequate) Letter of Direction issued by

Major Talley.

34

witness‟s inconsistent statements were subject to disclosure notwithstanding

government‟s “argument . . . that the jury could have disbelieved [the] undisclosed

statements”).

2. The Government Suppressed Favorable Information in its

Possession.

When the government possesses favorable information subject to disclosure

under Brady, it has an obligation to disclose this information to the defense in a

timely and complete manner. In this case, there is nothing in the record to indicate

that the government ever responded to the Brady request made by the defense

months before trial23 or that it volunteered Brady information to the defense in the

typical manner by sending the defense a disclosure letter. Ultimately, the defense

did not obtain a copy of the OIA Final Report until three months after trial, albeit

without the appended material, and it was not given OIA Investigator Collins‟s

23

Coincidentally, counsel for Mr. Morton made a Brady request for, inter

alia, any “information which tends to show a government witness‟ bias or

corruption . . . or which otherwise impeaches the witness‟ testimony” on April 10,

2009, one day before the OIA investigation into Officer Childs‟s false reporting

began. But whether or not defense counsel made a Brady request, the government

had an independent obligation to disclose the favorable information in its

possession. See United States v. Agurs, 427 U.S. 97, 107 (1976).

35

affidavit until over a year after trial, a week before the trial court ruled on its post-

trial Brady claim. Nevertheless, the government argues that it fulfilled its

disclosure obligations when it filed, a week before trial, its motion in limine to

preclude cross-examination of Officer Childs about the OIA Final Report and

provided a “summary of the complete Final Report.” We cannot agree.

To begin with, there was nothing about the motion in limine that put the

defense on notice that the government was disclosing Brady information. The

motion never cited Brady, much less indicated that the government was attempting

“to assist the defense in making its case.” Bagley, 473 U.S. at 675 n.6. Instead,

the object of the motion in limine was to preclude defense cross-examination of a

government witness. This is not an elevation of form over substance. As we said

in Miller, Brady does not authorize the government to engage in a game of hide-

and-seek, or require the defense to “scavenge for hints of undisclosed Brady

material.” 14 A.3d at 1113 (quoting Banks v. Dretke, 540 U.S. 668, 695 (2004)).

But that is precisely what the defense was forced to do in this case. Thus, at his

first opportunity to address the court about the government‟s motion in limine,

defense counsel told the court that he was “just basically hitting in the dark” and he

was “not sure what the finding [of the DOC OIA] says”:

36

[I]f I hadn‟t read the motion closely, I wouldn‟t even have known

[that the government might possess Brady information]. It wasn‟t as

if [the prosecutors] called me and told me, I have a report you need to

see. I just got this in the motion, and the motion, ironically, was to

actually suppress or limit the use of this information while it‟s being

given to me, even though it wasn‟t really being given to me; it was

just being alluded to or stated, but it‟s—I don‟t have the actual report

to this day.

In any event, the government‟s disclosure was not timely, accurate, or

complete. Accordingly, we conclude that the government suppressed favorable

information in its possession.

a. As a Brady Disclosure, the Motion in Limine Was Not

Timely

The government‟s obligation to make timely disclosures is grounded in the

very reason Brady disclosures are required: to provide protection against

miscarriages of justice. Miller, 14 A.3d at 1107. The goal of ensuring that our

“adversary system of prosecution [does not] descend to a gladiatorial level

unmitigated by any prosecutorial obligation for the sake of truth,” Kyles v. Whitley,

514 U.S. 419, 439 (1995), is not achieved by last-minute information dumps.

Rather, where disclosure of Brady is concerned, there is no time for strategic delay

and “as soon as practicable” should be the approach. See Miller, 14 A.3d at 1108

(explaining that “a strategy of delay and conquer . . . is not acceptable” (internal

37

citation and quotation marks omitted)); see also id. at 1111 (rejecting the rationale

that “better late than never” is good enough and endorsing the ABA standards

requiring Brady disclosure “at the earliest feasible opportunity . . . as soon as

practicable following the filing of charges” (internal quotation marks omitted)).

Certainly, Brady disclosures are required “well before the scheduled trial date,”

Zanders, 999 A.2d at 164; Perez v. United States, 968 A.2d 39, 66 (D.C. 2009)

(Brady requires “timely, pretrial disclosure”). Only in this way can we ensure

“defense counsel [has] an opportunity to investigate the facts of the case and, with

the help of the defendant, craft an appropriate defense.” Perez, 968 A.2d at 66; see

also Miller, 14 A.3d at 1111 (“[A]s we have repeatedly recognized, exculpatory

evidence must be disclosed in time for the defense to be able to use it effectively,

not only in the presentation of its case, but also in its trial preparation.”); Boyd, 908

A.2d at 57 (“[T]imely disclosure . . . can never be overemphasized.”).

By no means can the government‟s motion in limine constitute a timely

pretrial disclosure of the information it possessed about Officer Childs‟s discipline

as a result of the OIA investigation. The motion in limine provided no information

on this subject although—according to the affidavit from OIA Investigator Collins

that the government filed with the court—the “U.S. Attorney‟s Office” was

informed of the OIA Final Report “concerning Lieutenant Childs and his

38

subsequent demotion” nearly two months before the government filed this motion.

The government did not reveal that Officer Childs had been demoted until the first

day of trial, when it briefly noted that Officer Childs was demoted “related to” the

April 2009 incident that it had incompletely summarized in its motion in limine.

The government did not provide any further details about when or how this

discipline had been imposed until it filed OIA Investigator Collins‟s affidavit

thirteen months after trial.

But the government‟s disclosure obligations were triggered well before the

DOC decided to demote Officer Childs. The government had an obligation to

notify the defense that Officer Childs was under investigation by the DOC OIA.

See United States v. Bowie, 198 F.3d 905, 908 (D.C. Cir. 1999) (determining that

the prosecution had a duty to disclose the fact that one of its police officer

witnesses had become “the subject of an investigation into the truthfulness of his

testimony” in another case); see also Bullock v. United States, 709 A.2d 87, 92-93

(D.C. 1998) (remanding to trial court to develop record on whether government

should have disclosed that testifying law enforcement officer was under

investigation). As to the OIA investigation, which began in April 2009 and

39

concluded in June 2009, the government‟s motion in limine, filed a week before

the November 2009 trial, was not an “as soon as practicable” Brady disclosure.24

Accepting for the sake of argument the government‟s assertion that its

motion in limine filed a week before trial was a Brady disclosure, the belatedness

of this filing is not excused by the government‟s representation to the trial court

that it did not learn of the DOC OIA investigation and its resulting report until

“late summer.” Brady does not tolerate the “government[‟s] failure to turn over an

easily turned rock.” United States v. Brooks, 966 F.2d 1500, 1503 (D.C. Cir.

24

That this information was impeaching does not diminish the

government‟s obligation to learn of and disclose this information in a timely

manner. No less than exculpatory information, the defense is entitled to make

thoughtful, effective use of impeaching information in the preparation of its case.

See Miller, 14 A.3d at 1112 (explaining that the opportunity for use of favorable

information guaranteed by Brady is the “opportunity for a responsible lawyer to

use the information with some degree of forethought” (quoting Leka, 257 F.3d at

103)). The revelation that a witness may be untrustworthy or lying may open up

new investigative avenues and require the contemplation of different strategies at

trial. See, e.g., Sykes v. United States, 897 A.2d 769, 777-78 (D.C. 2006).

Moreover, where, as here, the government disputes the meaning or value of the

information it possesses, time must be afforded, well before trial, to litigate the

government‟s disclosure obligations. As this case demonstrates, doing so on the

eve of trial puts the defense at a strategic disadvantage and compromises the

court‟s ability to thoughtfully assess the information at issue. See Miller, 14 A.3d

at 1111 (discussing the difficulty of integrating Brady information on the eve of

trial and noting that “[t]he defense may be unable to divert resources from other

initiatives and obligations that are or may seem more pressing” (quoting Leka, 257

F.3d at 101)).

40

1992). “[T]he individual prosecutor has a duty to learn of any favorable evidence

known to the others acting on the government‟s behalf in the case.” Kyles, 514

U.S. at 437; see also Robinson v. United States, 825 A.2d 318, 324 (D.C. 2003)

(“[T]here is a duty to search branches of government „closely aligned with the

prosecution.‟”). In this case, OIA Investigator Collins—the same investigator who

investigated Officer Childs—was working closely with the U.S. Attorney‟s Office

on the Spencer-White Case and had identified Officer Childs as central to the

investigation of the Spencer-White attacks. For such an important witness so

closely tied to the investigation, the government should have had the systems in

place to ensure that it was alerted immediately about impeaching information. See

Kyles, 514 U.S. at 419, 438 (observing that “the prosecutor has the means to

discharge the government‟s Brady responsibility if he will,” and that “procedures

and regulations can be established to carry [the prosecutor‟s] burden and to insure

communication of all relevant information on each case to every lawyer who deals

with it” (quoting Giglio, 405 U.S. at 154)); see also Brooks, 966 F.2d at 1502-03

(observing that “the prosecutor‟s own interest in avoiding surprise at trial gives

him a very considerable incentive to search accessible files for possibly

exculpatory evidence, quite independent of Brady”).

41

In short, if it was a Brady disclosure at all, the government‟s motion in

limine was not a timely one.

b. As a Brady Disclosure, the Motion in Limine Was

Neither Accurate Nor Complete

In addition to its timing, we also consider the content of the motion in

limine, in particular the “summary” of the OIA Final Report. The defense

attorneys were not satisfied with the government‟s summary; they pushed for

disclosure of the “actual report.” Even if it is theoretically possible for the

government to fulfill its disclosure obligations under Brady by means of

summaries of preexisting documents, such summaries must be “sufficiently

specific and complete.” United States v. Rodriguez, 496 F.3d 221, 226 (2d Cir.

2007).25 Again we consider the requisite level of detail from the perspective of the

defense; where source documents exist, the government must “summarize[] . . .

[them] with every detail that might have been relevant to defense counsel‟s

25

See also Matthews v. United States, 629 A.2d 1185, 1199-1200 (D.C.

1993) (finding alleged Brady information was not “improperly withheld” where

the prosecutor “explained to [the defendant] exactly what the [exculpatory]

statement said”), abrogated on other grounds by Wilson-Bey v. United States, 903

A.2d 818 (D.C. 2006) (en banc); Wiggins v. United States, 386 A.2d 1171, 1173

(D.C. 1978) (holding that the government complied with Brady when it disclosed

grand jury testimony in a “substantially verbatim” account).

42

preparation as counsel viewed the case.” Wiggins, 386 A.2d at 1178 (Ferren, J.,

concurring). This may be challenging for the government, which presumably is

not privy to defense counsel‟s thoughts and theories pretrial. Accordingly, the

government withholds source documents at its peril.

Here, the government‟s motion in limine did not come close to satisfying our

standards for the content of Brady disclosures. What the government called a

“summary of an incident on April 6, 2009, in which DOC Internal Affairs issued a

Final Report” was not a true summary of the OIA Final Report at all, much less a

summary of all the favorable information in the government‟s possession regarding

Officer Childs.

The OIA Final Report had exposed what the OIA determined was an untrue,

self-serving story by Officer Childs and two colleagues of an assault by an inmate.

The government‟s summary, however, indicated that Inmate A had acted

aggressively. The summary quoted Officer Childs‟s explanation, reproduced in the

OIA Final Report, that “[b]ecause [Inmate A‟s] actions interfered with the normal

operations of the facility,” he used a chemical agent on Inmate A and instructed

him “to seize [sic] his disruptive behavior”—without qualifying that OIA had

discredited this account because “video footage of the incident [did] not support”

43

it. Thus, the government reproduced and represented as essentially undisputed

substantial portions of the very Incident Report the OIA determined contained a

false account of the incident.

The government‟s motion in limine not only presented as true that which

OIA had determined false, it used that false story as the backdrop for its account

that the OIA investigation was simply an inquiry as to whether Officer Childs had

used excessive force on a restrained Inmate A and whether Officer Childs had

engaged in possibly sloppy report-writing to the extent he incorrectly

“suggest[ed]” that Inmate A was unrestrained.26 The government disputed in its

motion in limine that this suggestion was “evident” from Officer Childs‟s incident

report, and it refused to “concede” that Officer Childs had “in fact” made false or

misleading statements with respect to whether Inmate A was handcuffed, even

though the OIA had determined that, as part of his fabricated story of inmate

26

The government‟s summary does not mention the other two corrections

officers who the OIA determined also submitted similarly false accounts of an

inmate assault. But its story that the OIA investigation was solely about Officer

Childs‟s possible improper use of force and sloppy report-writing falls apart when

the full scope of the DOC investigation into the actions of three officers to frame

an inmate for assault is revealed.

We further question the government‟s attempt to summarize the report

without obtaining the 76 pages of appendices that accompanied the report, where

these appendices further demonstrated that the scope of the OIA investigation was

not as the government represented.

44

assault, Officer Childs had misleadingly indicated that Inmate A was unrestrained.

The government‟s omission of the disciplinary consequences of the OIA Final

Report bolstered the inaccurate account of the OIA investigation in the

government‟s summary.

c. As a Brady Disclosure, the Motion in Limine Was Not

Usable

The adequacy of a Brady disclosure ultimately turns on “the sufficiency,

under the circumstances, of the defense‟s opportunity to use the evidence when

disclosure is made.” Miller, 14 A.3d at 1111 (quoting Leka, 257 F.3d at 100).

Beyond the timing and the content of the motion in limine, the trial record reflects

that the government never afforded defense counsel a meaningful “opportunity to

use” the favorable information in the government‟s possession. Id. The defense

was never able to impeach Officer Childs with the OIA investigation or its

disciplinary consequences. Moreover, the government and Officer Childs made

representations at trial that blocked the court from acting to ensure that any

favorable information in the government‟s possession would come to light and the

defense would be able to use it.

45

The government maintained throughout trial that the OIA investigation was

limited to an inquiry into use of force and alleged false reporting related to the use

of force, which had no bearing on Officer Childs‟s credibility as an after-the-fact

identification witness in the Spencer-White trial. The defense, ill-informed by the

government‟s summary, could not expose the government‟s representations about

the OIA investigation and its outcome as inaccurate, and could not persuade the

trial court that a probing cross-examination was warranted. Instead, as counsel put

it, they were forced to “tak[e] the [government‟s] representations for what the

report said or didn‟t say” and did not “really have any facts about what happened

or what was . . . alleged to even ask [Officer Childs].”

Nevertheless, when Officer Childs took the stand, defense counsel attempted

on cross-examination to “probe” the basis for the OIA investigation. The

government objected, and, relying on the government‟s representations, the trial

court limited the defense to two questions: (1) if it was true Officer Childs had

“submitted a false report to the Department of Corrections while [he] [was]

working at the D.C. Jail” and (2) if it was true he had been “disciplined by the

Department of Corrections for filing a false report.” To both questions, Officer

Childs responded, “no.” The defense had no means of challenging these responses,

46

much less any basis to ask the court for more leeway in impeaching Officer Childs

with his prior false reporting.

Although the defense had been unsuccessful in its questioning, the trial court

nonetheless tried to fulfill its “obligation to assure” itself that no Brady information

had been withheld from the defense and that the defense had had a meaningful

opportunity to confront Officer Childs. See Boyd, 908 A.2d at 59. These efforts

were for naught.

The trial court questioned Officer Childs about false reporting out of the

presence of the jury. In response, Officer Childs represented that DOC OIA “felt

that I missed the inmate while he was in handcuffs” and that he had explained to

DOC OIA that “that was an error. I do a lot of cutting and pasting. But I said if

you look at the rest of my report, that I stated the inmate was standing in front of

the bubble with the handcuffs on. So, how can I say that I applied handcuffs,

right?” The court asked Officer Childs whether he had been disciplined in

connection with the OIA investigation. Officer Childs represented that he had

received “a voluntary demotion” but that he “didn‟t understand it to be the result[]

of any disciplinary action” and that “no one [had] told [him] the reason for the

demotion.” The government did not seek to qualify or correct anything Officer

47

Childs told the trial court, even though the government (1) had a complete copy of

the OIA Final Report which documented the OIA‟s determinations both that

Officer Childs had made a false report about whether Inmate A was unrestrained

and this false report was part of a larger false narrative of an inmate assault, and (2)

had been informed by OIA Investigator Collins that the DOC Office of the

Director had demoted Officer Childs after receiving the OIA Final Report.27

The trial court then called only the government to the bench to ask about the

five-page ex parte submission. The court stated that it “just want[ed] to make sure

. . . . I have the entire filing, because mine stops at page 5, and there was no . . .

discipline or resolution mentioned in the document . . . that I have a copy of.” The

government did not alert the trial court that the ex parte submission was

incomplete; instead, one of the trial prosecutors told the court, “[y]eah, mine is five

pages long,” incorrectly indicating that the court had the full OIA Final Report.

The same prosecutor further informed the court, “there is no discipline listed in the

27

Consistent with the Supreme Court‟s decision in Napue, 360 U.S. at 269,

we acknowledged in Longus v. United States, 52 A.3d 836, 844 (D.C. 2012), that it

is “[a] bedrock principle of due process in a criminal trial . . . that the government

may neither adduce or use false testimony nor allow testimony known to be false

to stand uncorrected.” See also Thompson v. United States, 45 A.3d 688, 691 n.4

(D.C. 2012) (acknowledging the duty to correct false testimony extends beyond

perjury to testimony that is false because it is “mistaken”). Neither Mr. Morton

nor Mr. Vaughn raised a Napue claim in this case, however.

48

report itself,” but the prosecutor did not explain that the OIA only conducts

investigations and does not make disciplinary decisions; nor did the prosecutor

inform the court that the decision to demote Officer Childs for making false reports

had been made by the proper authority, the DOC Office of the Director.

The trial court subsequently put its understanding of the OIA investigation

on the record:

[W]e have a little more clarity concerning this incident. For your

purposes, the report that was submitted to me, which is what I was

just confirming with the government, is not in the form of a

disciplinary action, which is why I followed up with the questions I

had of Officer Childs, because—and I confirmed with the government

that they weren‟t aware of any, quote, disciplinary action the way we

would—I had envisioned it could be; that is, there’d be an

adjudication and then a finding of false report. I think it sounds like

there was an administrative resolution between the officer and the

Department of Corrections.

The court explained that in allowing any questions about the investigation, it had

been “operating under the assumption that . . . we were talking about some sort of

disciplinary action where there was a finding” but “we‟re far afield from that.”

The court then observed that there was no “factual basis that would support going

further on this matter, in terms of questioning.” Concluding the discussion, the

court reiterated that “based on what I heard” it would not permit “additional

49

questioning . . . on what I, at this point, assess . . . to be a collateral matter, which

was an informal resolution . . . of a disciplinary matter, without a finding of . . . a

nontruth-telling event.28 Again the government stood silent.

Based on the foregoing, we cannot say that the government, through its

motion in limine, disclosed to the defense the favorable information in its

possession in such a way as to allow the defense to use this information effectively.

The government not only failed to give the defense (or the court) accurate or

complete information, it then stood by at trial and allowed the defense‟s ignorance

and the court‟s erroneous understanding of the pertinent facts to persist. The

upshot was that the trial court did not permit thorough impeachment of Officer

Childs on the subject of the OIA investigation and its disciplinary consequences

because it was convinced that, on these topics, there was nothing to impeach

Officer Childs about. In short, the government‟s motion in limine to preclude

impeachment of Officer Childs cannot be construed as a Brady disclosure because

28

The government asserts that because the trial court indicated that it would

be open to further argument on the subject and the defense failed to raise the issue

again, the defense “arguably waived any claim that they were entitled to confront

Sergeant Childs at trial with a copy of the Final Report.” We see no waiver where

the defense—because of the government‟s suppression of favorable information—

had nothing else to offer and no other means to persuade the court that its

assessment of the OIA investigation was mistaken.

50

it worked—the government‟s motion prevented an effective cross-examination of

Officer Childs on the subject of his prior false reporting.

* * *

In the absence of a timely, accurate, complete, or usable disclosure, we

conclude that the government did not disclose to the defense the favorable

information in its possession in this case.

3. The Favorable Information Suppressed by the Government

Was Material

We next consider whether the favorable information withheld by the

government was “material.” See Miller, 14 A.3d at 1115. To assess materiality,

we consider whether there is “a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would have been different.”

Id. (quoting Bagley, 473 U.S. at 682). The reasonable probability standard does

not require a showing that it is more likely than not the defendant would have been

acquitted. Kyles, 514 U.S. at 434. Rather, since Brady is a rule of fairness, the

materiality threshold is met if, in the absence of proper disclosure, we question

whether the defendant received a fair trial and our “confidence” in the outcome of

51

the trial is thereby “undermine[d].”29 Id; see also Cain, 132 S. Ct. at 630 (quoting

Kyles, 514 U.S. at 434); United States v. Cuffie, 80 F.3d 514, 517 (D.C. Cir. 1996)

(explaining that the proper 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” (quoting United States v. Smith, 77 F.3d

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

Our materiality analysis in this case must begin with an assessment of

Officer Childs‟s role in the government‟s case. Officer Childs was a critical

witness, as the government conceded in its brief to this court. Indeed, the

government signaled Officer Childs‟s importance by filing its motion in limine to

preclude his cross-examination about the OIA Final Report. At trial the

government‟s need for his testimony became apparent: Officer Childs was only

one of two government witnesses who inculpated Mr. Morton and Mr. Vaughn in

29

The materiality assessment this court conducts on appellate review is

necessarily different from the materiality assessment the government can make

pretrial when assessing its Brady obligations, and we reiterate that prior to trial, the

government must disclose information that is “arguably” material. Boyd, 908 A.2d

at 61-62; see also Miller, 14 A.3d at 1109 (acknowledging there may be “a duty of

disclosure even when the items disclosed subsequently prove not to be material.”

(citing Boyd, 908 A.2d at 60)).

52

the assault on Sergeant White, and he was objectively the stronger witness.30

Similarly, it cannot reasonably be disputed that Officer Childs‟s credibility was a

central issue in the case. In closing, the government argued that its case turned on

the jury‟s assessment of the credibility of its witnesses and of Officer Childs in

particular. See Lewis v. United States, 408 A.2d 303, 308 (D.C. 1979) (noting that

the “substantial possibility . . . that impeachment with prior convictions will affect

the outcome, whether it goes to general credibility . . . or to a more specific target

of reliability, such as bias” is “especially strong in the case of a key government

witness” (citation omitted)).

Next, we consider the nature of the withheld information: It was powerfully

impeaching. It did not simply establish that Officer Childs had a track record for

untruthfulness. It established that he was willing to make false reports implicating

inmates in assaults on law enforcement agents—the precise context of this case.

See Milke, 711 F.3d at 1007 (concluding that suppressed information about a

30

The government argues on appeal that its case was “strong even without”

Officer Childs. We cannot agree that a case based solely on the identification

testimony of Sergeant Harper would have been “strong.” We further note that the

government‟s assertion that “the jury was able to evaluate whether the tapes

depicted appellants,” is inconsistent with its position that it needed the lay opinion

testimony of Officer Childs and Sergeant Harper to assist the jury in identifying the

individuals in the recordings of the attacks. See infra part IV.A.

53

police officer‟s untruthfulness would have undermined his credibility and

demonstrated that he “had no compunction about abusing his authority with a

member of the public” who was similarly situated to the appellant).

This leads us to the ultimate question: Does the suppression of this

information undermine our confidence in the fairness of the trial? We conclude it

does. Had the defense and the court known the full details of the OIA‟s actual

findings and of the discipline meted out by DOC as a result—and had the

government known the defense knew—we think it likely that this case would have

played out very differently.

Preliminarily, we question whether the government would have made the

same representations and whether Officer Childs would have given the same

testimony. But, at the very least, defense counsel would have had a firm

foundation to press for much more leeway in cross-examining Officer Childs on

the subject of his prior false reporting and resulting discipline, instead of “hitting in

the dark.” See Cuffie, 80 F.3d at 517 (explaining that undisclosed evidence of

untruthfulness is material if it “could have substantially affected the efforts of

defense counsel to impeach the witness, thereby calling into question the fairness

of the ultimate verdict” (quoting Smith, 77 F.3d at 515). “[A]s a general rule, a

54

defendant is entitled to wide latitude in presenting evidence tending to impeach the

credibility of a witness, especially where[, as here,] that evidence relates to a key

government witness.” Dockery v. United States, 746 A.2d 303, 306 (D.C. 2000)

(internal quotation marks omitted); Shorter v. United States, 792 A.2d 228, 233

(D.C. 2001) (noting that trial courts may not curtail cross-examination so as to

“keep[] from the jury relevant and important facts bearing on the trustworthiness of

crucial testimony” (internal quotation mark omitted)). Here it appears that the trial

court would have granted the defense such leeway; indeed, the court all but said

that had Officer Childs been disciplined for making a false report, it would have

allowed the defense to engage in a very different cross-examination of Officer

Childs. This court can readily envision a series of permissible, pointed questions

by defense counsel that would have seriously damaged Officer Childs‟s credibility

in the eyes of the jury—whether he answered them truthfully or tried to avoid

giving a truthful answer.31 See Milke, 711 F.3d at 1009 (explaining how police

officer could have been confronted with prior instances of untruthfulness).

31

Even assuming Officer Childs would have given the same denials, his

testimony that he had not been demoted as a result of false reporting would have

provided the basis for request by the defense to demand that the government

correct his false or mistaken testimony. See supra note 27.

55

The government asserts, however, that it “would not have influenced the

verdict” if Officer Childs had either (1) admitted that he had been “demoted

because he had deployed a chemical agent on an inmate” or (2) explained that he

had not “purposefully file[d] a false report” indicating the inmate was unrestrained.

We reject the factual foundation for the government‟s argument; as explained

above, the OIA Final Report documents an investigation that was centrally

concerned with a false report of an inmate assault by Officer Childs and two fellow

corrections officers to justify an improper use of force, Officer Childs was demoted

because of this investigation, and we infer that he was so disciplined as a sanction

for all the conduct detailed in the OIA Report, including the determinations of false

reporting.

The government also argues that disclosure of the OIA Final Report would

have had little effect on the outcome of the trial because the defense could neither

have inquired into it on cross-examination in any further depth, nor could it have

introduced the report itself as extrinsic evidence.

In the first alternative, the government takes the position that the defense

“could not have confronted Sergeant Childs with the report itself in order to

impeach his credibility” because “appellants have not shown that Sergeant Childs‟s

56

statements were false.” Thus, the government argues the defense could not have

laid the requisite foundation for cross-examination about a prior bad act. See

Sherer v. United States, 470 A.2d 732, 738 (D.C. 1983) (explaining that “a witness

may be cross-examined on a prior bad act that has not resulted in a criminal

conviction only where: (1) the examiner has a factual predicate for such question,

and (2) the bad act bears directly upon the veracity of the witness in respect to the

issues involved [in] the trial” (internal quotation marks omitted) (quoting United

States v. Akers, 374 A.2d 874, 878 (D.C. 1977))). Again, the government seeks to

dispute the validity of the DOC‟s determination of false reporting. But, the

government‟s disbelief in the accuracy of the OIA‟s findings is irrelevant, both to

an assessment of its obligation to disclose this information under Brady and to an

assessment of the use the defense could have made of this information at trial. The

point is that, unlike in Sherer, where the defense proffer that a government witness

had previously lied “was conclusory and based almost entirely on inadmissible

hearsay,” 470 A.2d at 739, here there was an official finding of false reporting by a

government agency. This official determination provided the defense with an

ample “factual predicate” for questioning Officer Childs about false reporting.32

32

This factual predicate was not undermined by the absence of any record

of Officer Childs‟s false reporting and demotion in his personnel file, which the

trial court apparently reviewed but is not in the record on appeal. It was never

established that Officer Childs‟s personnel file was complete and in fact the

(continued…)

57

See id. at 738; see also Wagner v. Georgetown Univ. Med. Ctr., 768 A.2d 546, 563

(D.C. 2001) (finding that a professional association‟s findings recommending

censure constituted a “more than sufficient factual predicate for the proposed cross

examination” of a physician witness).

In the second alternative, the government argues that the defense would not

have been able to present extrinsic evidence of the OIA Final Report because it

concerned a collateral issue. See Rowland v. United States, 840 A.2d 664, 680

(D.C. 2004). Thus, the government argues that even if the defense had had the full

report and information about the subsequent demotion, it would have been stuck

with the testimony Officer Childs gave at trial, namely, his denials that he had filed

a false report and that he had been demoted for filing a false report. Whether the

defense could have introduced the actual OIA Final Report into evidence is an

(…continued)

personnel regulations allow for removal of documentation of discipline from an

employee‟s file under certain circumstances. See 6-B DCMR § 1601.7 (2008).

More fundamentally, there was never any question that Officer Childs was

demoted in connection with the Inmate A incident. He admitted that he was. And

even though he stated that he “didn‟t want to” take what he represented was a

“voluntary demotion,” there is no indication in the record that he ever sought to

administratively challenge this discipline or the underlying determination of

misconduct on which it was based.

58

interesting but ultimately academic issue.33 Effectively, the government argues

that Brady disclosure or no, nothing would have changed in how this case played

out at trial. As explained above, we think that argument blinks reality. See Milke,

711 F.3d at 1009 (explaining how prior judicial determinations of police officer‟s

untruthfulness “would have been a game-changer” on cross-examination even

without proof of extrinsic evidence).

33

Extrinsic evidence is admissible to substantiate a claim of witness bias

because bias is never a collateral issue. Martinez v. United States, 982 A.2d 789,

795 (D.C. 2009). Here we agree with the government that the defense could not

have introduced the OIA Final Report to pursue a line of bias cross-examination on

a theory that Officer Childs was testifying for the government to curry favor in his

own misconduct proceedings. Because Officer Childs identified Mr. Morton and

Mr. Vaughn before his false reporting incident took place and because he was

demoted before he testified at their trial, the timing does not suggest an attempt to

curry favor with the government while under investigation. Cf. id. at 795 (holding

that officer‟s status as subject of an ongoing MPD investigation was admissible as

evidence of bias). But proffering a “well-reasoned suspicion” that a witness has a

motive to curry favor with the government is only one means of establishing the

requisite “proper foundation” to pursue a bias line of cross-examination. See

Howard v. United States, 978 A.2d 1202, 1207 (D.C. 2009). “Bias may be induced

by a witness‟[s] like, dislike, or fear of a party, or by the witness‟[s] self-interest.”

Dawkins v. United States, 41 A.3d 1265, 1271 (D.C. 2012). And this court has

recognized that corruption bias, i.e., a willingness to give false testimony, is its

own separately cognizable form of bias. See Longus, 52 A.3d at 851-53; In re

C.B.N., 499 A.2d 1215, 1219-20 (D.C. 1985). Although the government argues

that the defense should be limited in its materiality argument to the theory of bias it

advanced at trial, we are not inclined to find waiver in light of the fact that the

defense did not have the full report at trial. Our inquiry is not about what the

defense did without the Brady material, but about what the defense would have

done had it had the Brady material.

59

Based on the record before us, whether the government had an obligation to

accurately and completely disclose the contents of the OIA Final Report and the

DOC‟s consequent decision to demote Officer Childs should not have been a hard

call for the government.34 And had the defense been able to impeach Officer

Childs with the DOC‟s determination of his prior false reporting and consequent

demotion, there is at least a reasonable probability that the jury would have

weighed Officer Childs‟s testimony and the government‟s case differently. This

concludes our materiality analysis for Mr. Morton. But for Mr. Vaughn, there is a

coda. The suppressed impeachment evidence for Officer Childs was material only

to the extent that Mr. Vaughn contested Officer Childs‟s identification. But Mr.

Vaughn submitted a post-trial affidavit in which he admitted that he was the inmate

Officer Childs had identified him to be and argued only that his actions had been

34

Indeed, we are left with many questions about the government‟s behavior

in this case, including: (1) How could the government have so misconstrued the

findings of the OIA investigation as memorialized in the full OIA Final Report as

ultimately unrevealing regarding Officer Childs credibility? (2) How could the

government have failed to realize at trial that it had not given the court the full OIA

Final report, particularly when the trial court specifically asked if the five-page

copy it had in hand was the complete report? (3) How could the government have

made the representations it did about the consequences of the Inmate A incident or

have allowed Officer Childs to testify without qualification about his lack of notice

or understanding of those consequences, in light of the information contained in

OIA Investigator Collins‟s sworn affidavit?

But these questions ultimately go to whether the government acted in bad

faith, which, as we noted at the outset, is irrelevant to the issue raised before this

court: whether the government violated its constitutionally imposed disclosure

obligations. See Brady, 373 U.S. at 87; Miller, 14 A.3d at 1107.

60

misinterpreted—that he had not pushed Sergeant White; he had been trying to help

him. This admission negates our materiality determination. In light of Mr.

Vaughn‟s affidavit, which the government would be free to use as a party

admission, we see little chance of a different result were Mr. Vaughn to be given a

new trial. Thus, the government‟s Brady violation is reversible only with respect

to Mr. Morton.

C. Remand

By now government prosecutors should know: “Betray Brady, give short

shrift to Giglio, and you will lose your ill-gotten conviction.” United States v.

Olsen, 737 F.3d 625, 633 (9th Cir. 2013) (Kozinski, C.J., dissenting from denial of

petition for rehearing en banc). So it is for the government with respect to Mr.

Morton‟s conviction; we reverse and remand his case for a new trial.

Well before any such trial takes place,35 the court must confirm that the

government has in fact provided to the defense all the favorable information in its

35

Some courts have held that where the government engages in deliberate

Brady misconduct, a new trial should not be held. See Virgin Islands v. Fahie, 419

F.3d 249, 254-55 (3d Cir. 2005) (recognizing that “dismissal for a Brady violation

may be appropriate in cases of deliberate misconduct”); United States v. Kojayan,

(continued…)

61

possession. As far as we can tell, the government has never represented in this

case that it has fulfilled its constitutional duty to learn of and disclose to the

defense all the Brady information in its actual or constructive possession. See

Kyles, 514 U.S. at 437. The government should be directed to make such a

representation, in writing, filed with the trial court. See, e.g., Milke, 711 F.3d at

1019 (requiring, on remand, the state to make complete Brady disclosures

regarding the subject police officer and to “provide a statement under oath from a

relevant police official certifying that all of the records have been disclosed and

none has been omitted, lost or destroyed”); United States v. Naegele, 468 F. Supp.

2d 150, 155 (D.D.C. 2007) (directing government to “conduct all necessary

searches and produce to the defendant any and all materials that are responsive” to

prior Brady requests and “certify to the [c]ourt in writing that it has done so”). It

also goes without saying that if any other instances of nondisclosure come to light,

further “remedial sanctions” beyond a retrial may be needed. See Odom v. United

States, 930 A.2d 157, 158-59 (D.C. 2007) (recognizing a trial court‟s broad

(…continued)

8 F.3d 1315, 1325 (9th Cir. 1993) (remanding to the trial court to consider whether

to allow a new trial after a Brady violation); see also Sanders v. United States, 550

A.2d 343, 344-46 (D.C. 1988) (recognizing the trial court‟s “supervisory power to

dismiss the indictment as a sanction for government misconduct”). We neither

endorse nor foreclose such an argument by the defense on remand.

62

authority to fashion “appropriate remedial sanctions” so long as they are just under

the circumstances).

III. Jury Instruction Error

Although Mr. Vaughn obtains no relief on his Brady claim, we conclude that

his conviction for aggravated assault must be reversed on other grounds. Mr.

Vaughn argues that the trial court erred in instructing the jury as to the elements of

this offense on a theory of aider and abettor liability. Because counsel did not

object, this claim is subject to plain error review. See Perez, 968 A.2d at 92. The

government has conceded that the court‟s aiding and abetting instruction was

plainly incorrect, satisfying the first two criteria for reversal. See Perry v. United

States, 36 A.3d 799, 818 (D.C. 2011) (citing United States v. Olano, 507 U.S. 725,

732-36 (1993)). But the government argues that Mr. Vaughn cannot show the third

criterion for plain error review, namely that this error “affect[ed] substantial

rights.” Id. We disagree, and because we also conclude that this error “seriously

affect[ed] the fairness, integrity or public reputation of judicial proceedings,” id.,

the fourth criterion for plain error review, we exercise our discretion to reverse.

63

Mr. Vaughn was charged with both aggravated assault and felony assault.

As the more serious offense, the D.C. Code appropriately sets a high bar for

aggravated assault. Whereas felony assault requires proof of “significant bodily

injury”36 that a defendant caused “intentionally, knowingly, or recklessly,” D.C.

Code § 22-404 (a)(2), aggravated assault requires proof of “serious bodily injury”37

that a defendant either “knowingly or purposely cause[d]” or that resulted from

conduct in which the defendant “[u]nder circumstances manifesting extreme

indifference to human life . . . intentionally or knowingly engage[d] . . . [and]

which create[d] a grave risk of serious bodily injury.” D.C. Code § 22-404.01; see

also Perry, 36 A.3d at 817.

The problem in this case arose after the court correctly instructed the jury on

the elements of principal liability for aggravated assault and felony assault. The

trial court then explained that the jury could also convict if it determined a

36

“Significant bodily injury” is defined as “an injury that requires

hospitalization or immediate medical attention.” D.C. Code § 22-404 (a)(2) (2012

Repl.).

37

This court has defined “serious bodily injury” as an injury that causes “a

substantial risk of death, unconsciousness, extreme physical pain, protracted and

obvious disfigurement, or protracted loss of impairment of the function of a bodily

member, organ, or mental faculty.” Perry, 36 A.3d at 815 n.29.

64

defendant had aided and abetted the principal offender. Whether the jury considers

a defendant‟s criminal liability as a principal or as an aider or abettor, the requisite

mens rea for the charged assault is the same. Perry, 36 A.3d at 814-18; see also

Wilson-Bey, 903 A.2d at 837-38 (holding that to be guilty as an aider or abettor, an

accomplice must have the same mental state required for conviction as a principal).

Although the court correctly charged the jury that it had to find the same mens rea

to convict a defendant as a principal or an aider and abettor, it then gave an

instruction for aider and abettor liability that inappropriately combined the

standards for aggravated assault and felony assault. In effect, the court informed

the jury that it could convict a defendant as an aider and abettor of an aggravated

assault if it found that the defendant had the lesser mens rea for felony assault.38

Under D.C. Code § 22-404.01 and Perry, this was error and plainly so.

38

In its discussion of aiding and abetting, the court instructed the

jury:

With respect to the charge of aggravated assault or

assault with a significant injury, regardless of whether a

Defendant is an aider and abettor or a principal offender,

the Government must prove beyond a reasonable doubt

that the Defendant personally acted with:

(A) inten[t] to cause significant bodily injury to the

complainant; or (B) [knowledge] that significant bodily

injury to the complainant would result from his conduct;

or (C) [awareness] of and disregard[] [for] the risk of

significant bodily injury that his conduct created.

65

To demonstrate that this plain error warrants reversal, Mr. Vaughn must

show prejudice, i.e., a “„reasonable probability‟ of a different outcome if the jury

had been properly instructed.” Perry, 36 A.3d at 818. This standard for assessing

prejudice requires us to “make sense of the jury‟s verdict in light of the evidence

presented and the instructions given to the jury.” Id. at 821.

The first step of the inquiry is whether we can discern with any assurance

that Mr. Vaughn was convicted of aggravated assault on a theory of principal

liability—on which the jury had earlier been correctly instructed—or whether there

is a reasonable probability that Mr. Vaughn was convicted on a theory of aiding

and abetting liability—on which the jury never received a correct instruction. On

the record before the court it is clear that the jury could not have convicted Mr.

Vaughn of aggravated assault as a principal. No evidence was introduced at trial

that he caused Sergeant White to suffer the serious bodily injury alleged, i.e., his

subsequent unconsciousness and head injuries, either by personally inflicting these

injuries or creating the grave risk that these particular injuries would occur.39 The

39

We question whether the government presented evidence that Sergeant

White suffered serious bodily injury at all. The government presented evidence

that Sergeant White briefly lost consciousness following the attack, that the head

injuries he incurred did not cause substantial pain, and that, although he sought

medical care, he fully recovered from these injuries without medical intervention.

(continued…)

66

government‟s theory at trial was that Mr. Vaughn was the inmate in white, whose

only contact with Sergeant White was to give him “one good shove.” This push

knocked Sergeant White against a table. But the recorded footage shows that

Sergeant White immediately arose from the table and walked away; 40 meanwhile

the inmate in white retreated and did not engage in any further aggressive action.

The government acknowledged in closing that Mr. Vaughn was not present for the

subsequent attack on Sergeant White; the government highlighted for the jury that

Mr. Vaughn was not on the scene because “he [ran] back upstairs” and did not

“stand there to help.” The complete lack of evidence that Mr. Vaughn principally

(…continued)

This appears to fall well below the “high threshold of injury,” Jenkins v. United

States, 877 A.2d 1062, 1069 (D.C. 2005), we have set to prove aggravated assault.

See, e.g., Jackson v. United States, 940 A.2d 981, 983-84 (D.C. 2008) (declining to

find serious bodily injury where victim was forcibly raped and beaten in the head

with a hammer); Bolanos v. United States, 938 A.2d 672, 679 (D.C. 2007)

(declining to find serious bodily injury where victim was stabbed in arm and

stomach and required surgery to repair perforation to his intestine); see also

Swinton v. United States, 902 A.2d 772, 775 (D.C. 2006) (explaining that in cases

finding serious bodily injury, the injuries were “usually . . . life-threatening or

disabling. The victims typically required urgent and continuing medical treatment

(and, often, surgery), carried visible and long-lasting (if not permanent) scars, and

suffered other consequential damage, such as significant impairment of their

faculties. In short, these cases have been horrific.”). But Mr. Vaughn has not

argued that the nature of Sergeant White‟s injuries preclude his conviction for

aggravated assault and we need not reach this issue in light of our disposition

above.

40

The recorded footage does not show, and the government presented no

other evidence regarding, the point in time when Sergeant White was brought to

the floor.

67

caused serious bodily injury makes it clear that there is at least a reasonable

probability that the jury relied on a theory of aiding and abetting to convict Mr.

Vaughn of aggravated assault. See Perry, 36 A.3d at 821.

Focusing on aiding and abetting liability, we next consider whether it was

reasonably probable that the jury‟s determination of guilt turned on the mistakenly

minimized intent element in the aiding and abetting instruction. See id. We think

it was. To discern Mr. Vaughn‟s mental state, the jury could only look to and draw

inferences from his conduct. From Mr. Vaughn‟s “one good shove” that caused

Sergeant White to briefly lose his balance, it seems highly unlikely the jury would

infer that Mr. Vaughn “himself intended to cause serious bodily injury.” Perry, 36

A.3d at 817. Thereafter, Mr. Vaughn did not seek to press his advantage and strike

Sergeant White again. Instead, by immediately retreating, he allowed Sergeant

White to recover and move away. Similarly, from Mr. Vaughn‟s “one good

shove,” it seems unlikely the jury would infer that Mr. Vaughn acted intentionally

to “create[] a grave risk of serious bodily injury.” Id. at 817 (internal quotation

marks omitted). At the time of Mr. Vaughn‟s single push, no inmate had acted

aggressively toward Sergeant White; nor is there any evidence in the record as to

when the subsequent attack began. And, although one might argue that, at the time

of his push, the ensuing escalation of events was reasonably foreseeable to Mr.

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Vaughn, diminishing the requisite aider and abettor mens rea for aggravated

assault to reasonable foreseeability is precisely what this court held in Perry was

disallowed under Wilson-Bey. Perry, 36 A.3d at 817-18 (rejecting under Wilson-

Bey a jury instruction that would allow appellants to be “liable for aggravated

assault for negligently having begun a[n] . . . assault if it was „natural and

probable‟ that the melée would escalate to severe kicking by someone else, even if

appellants did not themselves have the intent to cause serious bodily injury or

„manifest extreme indifference to human life‟”). Thus, we find that there is at least

a “reasonable probability” that Mr. Vaughn would not have been convicted of

aggravated assault absent the error in the aiding and abetting jury instruction.

Lastly, we conclude that the fourth element of plain error review is

satisfied.41 Mr. Vaughn was “wrongly convicted of aggravated assault on an

aiding and abetting theory of liability, without a jury determination that [he] had

the mens rea required for conviction of that offense,” and such “[a] wrongful

41

The government asserts that “appellant is not entitled to reversal because

he cannot satisfy the third and fourth plain-error requirements,” but save one

citation, its brief contains no further reference to the fourth prong of plain error

review.

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conviction necessarily affects the integrity of this proceeding and impugns the

public reputation of judicial proceedings in general.” Perry, 36 A.3d at 822.

Because Mr. Vaughn has satisfied all the elements of plain error review, we

exercise our discretion to reverse his conviction for aggravated assault.

IV. Other Issues

A. Admission of Identification Testimony

Mr. Morton and Mr. Vaughn also argue that the court should not have

permitted Sergeant Harper and Officer Childs to testify as identifying witnesses

because their testimony did not satisfy the standards outlined in Sanders v. United

States, 809 A.2d 584, 596 (D.C. 2002). Discerning no abuse of discretion, id. at

590, we affirm the trial court‟s Sanders ruling.42

42

The government argues that appellants have waived their argument on

this issue by failing to raise it before the trial court and asserts that this issue must

be reviewed for plain error review if it is considered at all. We see no reason to

delve into a preservation analysis in light of our determination that the trial court

did not abuse its discretion.

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In Sanders, this court held that “lay witness opinion testimony regarding the

identity of a person in a surveillance photograph or a surveillance videotape is

admissible into evidence, provided that such testimony is: (a) rationally based on

the perception of a witness who is familiar with the defendant‟s appearance and

has had substantial contact with the defendant; and (b) helpful to the factfinder in

the determination of a fact in issue.”43 809 A.2d at 596. Both Mr. Morton and Mr.

Vaughn contend that the trial court erred when it allowed Officer Childs and

Officer Harper to provide identification testimony where the evidence did not

establish sufficient familiarity and substantial contact with Mr. Morton or Mr.

Vaughn.44

43

The evidentiary rule in Sanders is derived from Rule 701 of the Federal

Rules of Evidence, which this court has adopted in substance. See King v. United

States, 74 A.3d 678, 681 n.13 (D.C. 2013).

44

Both Mr. Morton and Mr. Vaughn fault the trial court for not making

specific findings on the Sanders issue, but trial counsel never requested such

findings. See Tyson v. United States, 30 A.3d 804, 806 (D.C. 2011) (“[W]hen a

request for special findings is not timely made, the right to such findings is

generally regarded as having been waived.”). Indeed, as noted above, there is

some question whether this issue was waived or properly preserved. See supra

note 42.

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We consider it a close call whether, under Sanders, Officer Childs and

Officer Harper had sufficient contact with and knowledge of the defendants.

Certainly, this case does not involve the familial or close personal relationships

seen in Sanders or other cases in which identification testimony has been admitted

in federal courts under Rule 701.45 But the government did present evidence that

the officers, over a period of months, had daily interaction with Mr. Morton and

Mr. Vaughn throughout the routine functions of their jobs—interaction which gave

rise to familiarity and particular knowledge of their physical features. We

conclude it was therefore within the discretion of the trial court to find that there

was an adequate foundation for the proffered identification testimony. Both Mr.

Morton and Mr. Vaughn point to weaknesses in the officers‟ trial testimony, but

such weaknesses are classic fodder for cross-examination; they do not bear on the

court‟s initial Sanders ruling.46

45

See Sanders, 809 A.2d at 593 n.10 (allowing identifying testimony from

defendant‟s neighbor of twenty-five years, former boss, and ex-girlfriend, among

others); see also, e.g., United States v. Jackman, 48 F.3d 1, 2 (1st Cir. 1995)

(allowing identifying testimony from defendant‟s ex-wife and two personal

acquaintances); United States v. Stormer, 938 F.2d 759, 762 (7th Cir. 1991)

(allowing identifying testimony where witnesses were acquainted with defendants

for several years); United States v. Borrelli, 621 F.2d 1092, 1095 (10th Cir. 1980)

(allowing identifying testimony from defendant‟s stepfather).

46

Mr. Morton also argues that Sergeant Harper and Officer Childs should

not have been permitted to testify because the government failed to establish that

their testimony would be helpful. But this argument is largely a repeat of his

(continued…)

72

B. Ineffective Assistance of Counsel

Mr. Vaughn also argues that the representation he received at trial was

constitutionally ineffective. To establish ineffective assistance of counsel, the

defendant must show that counsel‟s performance was deficient and that this

deficient performance prejudiced the defendant. Blakeney v. United States, 77

A.3d 328, 340 (D.C. 2013) (citing Strickland v. Washington, 466 U.S. 668, 686-87

(1984)). In reviewing the trial court‟s determination that counsel was not

ineffective, we accept the trial court‟s factual findings unless they are without

evidentiary support in the record, but review the legal conclusions regarding the

constitutional significance of those findings de novo. Id. at 341. We affirm the

trial court‟s finding that Mr. Vaughn failed to establish deficient performance on

the part of his trial counsel.

(…continued)

challenge to the quality and quantity of the officers‟ “personal and direct contacts”

with Mr. Morton. To the extent he focuses on other factors, he identifies one in

particular, “the quality of the video or photo,” that defeats his argument. Indeed,

elsewhere in his brief, Mr. Morton acknowledges the recorded footage used by the

government in this case was “dark, pix[e]lated, „jerky,‟ and „blurry.‟” In Sanders,

we stated that testimony may be helpful if the image of the defendant in the

videotape or photograph is “obscured.” Sanders, 809 A.2d at 596.

73

In order to show deficient performance, the defendant must “show[] that

counsel made errors so serious that counsel was not functioning as the „counsel‟

guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687.

Mr. Vaughn first claims that his trial counsel‟s representation was deficient

because counsel failed to investigate and prepare witnesses who could have

testified at trial. But the trial court found, consistent with trial counsel‟s testimony

in the post-trial proceeding, that counsel interviewed the witnesses that Mr.

Vaughn provided, and ultimately determined that their testimony would not be

helpful where it contradicted the evidence depicted in the videos. The ultimate

decision not to call these witnesses “is a judgment left almost exclusively to

counsel,” and we see nothing on this record to call that judgment into question.

Oliver v. United States, 832 A.2d 153, 158 (D.C. 2003) (internal quotation marks

omitted).

Mr. Vaughn also claims that he would have exercised his right to testify but

for counsel‟s failure to prepare him to do so. The trial court, however, credited

counsel‟s testimony in post-trial proceedings that he had met with Mr. Vaughn

several times prior to trial and asked a co-defendant‟s counsel to conduct a mock

74

cross-examination of Mr. Vaughn. This, too, is well within the range of reasonable

attorney performance.

Finally, Mr. Vaughn argues that counsel presented defense theories that

were inconsistent. Counsel argued that the person seen in the recorded footage

wearing white was not Mr. Vaughn, but in any event, if the jury thought that

person was Mr. Vaughn, the alleged push was insufficient to satisfy the element of

serious bodily injury required for aggravated assault. Even if this argument in the

alternative constituted a contradiction, a basic principle of criminal law is that a

defendant may present inconsistent and contradictory defenses. See, e.g., McClam

v. United States, 775 A.2d 1100, 1104 (D.C. 2001).

For these reasons, we affirm the trial court‟s denial of Mr. Vaughn‟s

ineffective assistance of counsel claim.

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C. Sufficiency of the Evidence

Both Mr. Morton and Mr. Vaughn raise challenges to the sufficiency of the

government‟s evidence. Mr. Morton effectively reargues his Sanders challenge in

his attack on the sufficiency of the evidence when he argues that he could not have

been convicted “without the non-eyewitness testimony” of the corrections officers

who viewed the videotape, and that even with this testimony “the jury must have

been left to speculate about whether, in fact, the video identifications had any

basis.” We have affirmed the trial court‟s Sanders ruling, but even if we had not,

we consider even wrongfully admitted evidence in assessing sufficiency, Mitchell

v. United States, 985 A.2d 1125, 1134-35 (D.C. 2009). Viewing the totality of the

evidence presented in the light most favorable to the government, see id. at 1133,

we reject Mr. Morton‟s sufficiency challenge to his convictions for aggravated

assault and assault on a law enforcement officer.

For his part, Mr. Vaughn attacks the sufficiency of the government‟s

evidence against him on the ground that the jury was “misled” by the poor quality

of the video footage of his contact with Sergeant White and failed to discern that

his “true act” was not to attack Sergeant White, as the government argued, but

76

rather to come to his aid and defend him against attack by others. Again, we view

the evidence in the light most favorable to the government. The jury could have

viewed the video and concluded that it showed Mr. Vaughn engaging in an

altercation with Sergeant White and taking an action that it could reasonably have

interpreted as a push.

V. Conclusion

For the reasons set forth above we affirm Mr. Vaughn‟s conviction for

assault on a law enforcement officer; we reverse his conviction for aggravated

assault; we reverse Mr. Morton‟s convictions for assault on a law enforcement

officer and aggravated assault; and we remand for further proceedings consistent

with this opinion.

So ordered.