United States v. Williams, Gregory

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Submitted October 17, 2000 Decided December 8, 2000

No. 00-3003

United States of America,
Appellee

v.

Gregory Williams,
Appellant

Appeal from the United States District Court for the
District of Columbia
(99cr00033-01)

Billy L. Ponds was on the brief for appellant.

Wilma A. Lewis, U.S. Attorney, John R. Fisher, Adam L.
Rosman and Kenneth W. Cowgill, Assistant U.S. Attorneys,
were on the brief for appellee.

Before: Williams, Randolph, and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Randolph.

 Randolph, Circuit Judge: The issue is whether the perjury
of a prosecution expert witness, discovered after trial, entitled
Gregory L. Williams to a new trial. The jury convicted
Williams of possession with intent to distribute heroin, in
violation of 21 U.S.C. s 841(a)(1). When arrested, Williams
had 10.5 grams of heroin in 87 small plastic "baggies" in his
coat pocket, and was storing another 75.3 grams of heroin,
packaged in 638 small plastic "baggies," in an automobile.
One government expert, a forensic chemist, testified about
the tests he performed to establish that the material in the
"baggies" was heroin.

Another government witness, Detective Johnny St. Valen-
tine-Brown, answered a question about his qualifications,
stating that he had been a narcotics expert for more than
twenty years and had served as a senior narcotics policy
analyst in the Reagan and Bush administrations. At the end
of his lengthy response, he added: "I am also a Board-
certified pharmacist. I receive, maintain compound and dis-
pense narcotic, as well as non-narcotic substances per pre-
scription." Without objection, the court accepted Brown as
an expert in the "distribution and use of narcotics, the
packaging of narcotics for street-level distribution, the man-
ner in which narcotic dealers distribute narcotic substances in
the District of Columbia, the price for which narcotics are
sold, both the wholesale and the street value ... [and] ...
the Metropolitan Police Department and Drug Enforcement
Administration procedures for the safeguarding of narcotics
evidence." Brown went on to testify about the procedures
the Police Department used to store narcotic substances and
to give his opinion, in light of Williams' large collection of
small "baggies" of heroin, that "[h]eroin users don't buy this
amount of dope broken down and packaged like this for their
own personal use. It just does not happen."

After Williams' conviction, his attorney learned that Brown
was not a pharmacist and had no degree in pharmacology,
facts unknown to the prosecution during the trial. Williams
then moved for a new trial pursuant to Federal Rule of
Criminal Procedure 33, which the district court denied.

 What is the standard for ordering a new trial when the
newly discovered evidence is that perjury occurred? Rule 33
says only: "the court may grant a new trial ... if the
interests of justice so require." An ancient opinion from
another circuit lays down this test: a defendant is entitled to
a new trial if, without the perjured testimony, "the jury might
have reached a different conclusion." Larrison v. United
States, 24 F.2d 82, 87 (7th Cir. 1928). Notice that the
Larrison formulation focuses on the importance of the per-
jured testimony to the prosecution's case. It does not ask
whether the jury would have reached a different conclusion
had the perjury been revealed at trial, although the Seventh
Circuit has now modified the test to take this into account.
See United States v. Mazzanti, 925 F.2d 1026, 1030 & n.6 (7th
Cir. 1991). Notice too that Larrison puts the test in terms of
what "might" have happened rather than what likely would
have occurred.

Under our usual Rule 33 standard, a defendant is not
entitled to a retrial on the basis of newly discovered evidence
unless he can show that "a new trial would probably produce
an acquittal." United States v. Thompson, 188 F.2d 652, 653
(D.C. Cir. 1951) (emphasis added). This formulation, common
throughout the federal courts, has been used for nearly a
century and a half. See 3 Charles Alan Wright, Federal
Practice and Procedure s 557 (2d ed. 1982). We have
consistently followed the Thompson standard in evaluating
motions for a new trial under Rule 33. See United States v.
Gloster, 185 F.3d 910, 914 (D.C. Cir. 1999). The difference
between Larrison and Thompson is not just in the use of
"might" versus "probably." Thompson looks ahead and eval-
uates the outcome of a new trial; Larrison looks back and
evaluates the impact of the perjury on the jury in the original
trial.

This circuit has never adopted Larrison. In the past we
have managed to avoid choosing between it and the standard
of Thompson because the defendant was not entitled to a new
trial under either formulation. See United States v. Mangi-
eri, 694 F.2d 1270, 1286 (D.C. Cir. 1982); United States v.
Mackin, 561 F.2d 958, 961 (D.C. Cir. 1977). Today we join
several other circuits in rejecting Larrison. See United

States v. Sinclair, 109 F.3d 1527, 1532 (10th Cir. 1997);
United States v. Provost, 969 F.2d 617, 622 (8th Cir. 1992);
United States v. Krasny, 607 F.2d 840, 844-45 (9th Cir. 1979);
United States v. Stofsky, 527 F.2d 237, 246 (2d Cir. 1975). The
First Circuit in United States v. Huddleston, 194 F.3d 214,
219 (1st Cir. 1999), also refused to follow Larrison partly on
the basis of United States v. Agurs, 427 U.S. 97, 103 (1976).
The Supreme Court there directed federal courts to overturn
convictions based on the government's knowing use of per-
jured testimony if there is "any reasonable likelihood that the
false testimony could have affected the judgment of the jury."
Id. From this the First Circuit reasoned: "If courts must
scrutinize the knowing use of perjured testimony under this
standard, there is no principled justification for treating the
government more harshly (such as by interposition of the
Larrison rule) when its use of perjured testimony is inadver-
tent." Huddleston, 194 F.3d at 220. We are not so sure.
The Agurs test, which repeats prior Supreme Court law, see
Giglio v. United States, 405 U.S. 150, 154-55 (1972); Napue
v. Illinois, 360 U.S. 264, 269-70 (1959), is quite easily satis-
fied. The phrases--"reasonable likelihood," "could have af-
fected"--"mandate a virtual automatic reversal of a criminal
conviction." Stofsky, 527 F.2d at 243. It is hard to see how
Larrison could have set down an even more liberal test than
Agurs, which appears to be what the First Circuit supposed.

This is not to say that the Larrison test is difficult to
satisfy. It is not. The Second Circuit's Stofsky opinion put
the matter well: "the test, if literally applied, should require
reversal in cases of perjury with respect to even minor
matters, especially in light of the standard jury instruction
that upon finding that a witness had deliberately proffered
false testimony in part, the jury may disregard his entire
testimony." 527 F.2d at 245-46. That is reason enough to
reject Larrison.

If not Larrison, what should the standard be? One possi-
bility is the standard laid down in Thompson for other types
of newly discovered evidence. This would mean that, when
perjury by a prosecution witness is discovered after trial and
when the prosecution did not know of the perjury until then,

a defendant would be entitled to a new trial only if he can
establish that he would probably be acquitted on retrial.
History provides a reason for adhering to the Thompson
formulation. Rule 33's current text was adopted in 1944.
The accompanying Advisory Committee note stated that the
rule "substantially continues existing practice." Fed. R. Crim.
P. 33, advisory committee's note. The widely-accepted prac-
tice in 1944, a practice derived from a mid-19th century state
court decision, see 3 Wright, supra, s 557, at 315, 322,
required a defendant seeking a new trial to demonstrate a
likelihood of success in a future retrial. See Evans v. United
States, 122 F.2d 461, 468-69 (10th Cir. 1941); Wagner v.
United States, 118 F.2d 801, 802 (9th Cir. 1941); Prisament
v. United States, 96 F.2d 865, 866 (5th Cir. 1938); Johnson v.
United States, 32 F.2d 127, 130 (8th Cir. 1929). Larrison too
predated Rule 33, but it had not been adopted in any other
circuit, and in fact had been cited only twice in the other
courts of appeals, and then only for propositions having
nothing to do with this case. See Dale v. United States, 66
F.2d 666, 667 (7th Cir. 1933); Vause v. United States, 54 F.2d
517 (2d Cir. 1931).

Another reason for adhering to the Thompson standard is
that newly-discovered evidence of perjury is not distinguish-
able from other newly-discovered evidence. One author dis-
agrees, arguing that perjury is different because it creates
"an error at trial" whereas in the case of other types of newly
discovered evidence, "the evidence at trial may have been
incomplete, but it was all true." Note, I Cannot Tell A Lie:
The Standard for New Trial in False Testimony Cases, 83
Mich. L. Rev. 1925, 1945 (1985). The difference is illusory.
Newly discovered evidence may often tend to prove that the
evidence before the jury was not "true." A third party may
confess to the crime; it may turn out that the main govern-
ment witness has a string of felony convictions; proof positive
of the defendant's alibi might surface. Any one of these
items of newly discovered evidence, in various degrees,
throws doubt on the accuracy of the trial evidence pointing to
the defendant's guilt. Yet the district court, faced with Rule

33 motions in such cases, will evaluate the motions by using
the Thompson test.

We recognize that the Second Circuit in Stofsky, while
refusing to follow Larrison, may have devised a variation of
it. Rather than asking whether the outcome of the trial
might have been different had the jury known of the witness's
lie, the Second Circuit asks whether the defendant probably
would have been acquitted. This differs from our Thompson
standard because, like Larrison, it looks at the matter retro-
spectively. The retrospective-prospective difference may not
matter in the mine run of cases. But we can imagine
situations in which it would matter, situations in which Stof-
sky would command a new trial that in all probability would
not produce a difference outcome. Because we can see no
good reason to treat newly-discovered evidence of perjury
differently than other types of newly-discovered evidence, we
reject Stofsy and adhere to our original formulation under
Thompson.

If Williams were retried, the government would have at its
disposal any number of experts who could testify that the
amount of heroin in his possession was inconsistent with
personal use. Or the government could decide not to call an
expert on this subject. Any rational juror could infer from
the fact that Williams was carrying 725 individual "baggies"
of heroin that he was intending to sell them. See United
States v. Askew, 88 F.3d 1065, 1070 (D.C. Cir. 1996) (jury
could infer from the quantity of drugs possessed that a
defendant intended to distribute them even without expert
witness). So too the fact that drugs were segregated into
"baggies" supports an inference of intent to distribute. See
United States v. Glenn, 64 F.3d 706, 711-12 (D.C. Cir. 1995)
(drugs segregated into 9 "baggies" supports inference of
intent to distribute). In either event--a different expert or
no expert--it is most unlikely that a jury would acquit
Williams in a new trial.

Affirmed.