United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 4, 2002 Decided January 7, 2003
No. 01-3011
United States of America,
Appellee
v.
Robert Gale,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 95cr00297-02)
A. J. Kramer, Federal Public Defender, argued the cause
and filed the briefs for appellant.
Mary B. McCord, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Roscoe C.
Howard, Jr., U.S. Attorney, John R. Fisher, and Carolyn K.
Kolben, Assistant U.S. Attorneys. Mary-Patrice Brown, As-
sistant U.S. Attorney, entered an appearance.
Before: Randolph and Rogers, Circuit Judges, and
Williams, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
Williams.
Williams, Senior Circuit Judge: Johnny St. Valentine
Brown for years testified as an expert witness for the govern-
ment in narcotics cases. But it later developed that Brown
was something of a con man himself, so much so that he was
charged with and pleaded guilty to having committed perjury
about his educational background. Among the trials at which
he testified was that of Robert Gale, who was convicted of
possession of marijuana and possession of heroin with intent
to distribute. Thus we again consider the effects of Brown's
testimony on the adequacy of a trial. Compare, e.g., United
States v. Williams, 233 F.3d 592 (D.C. Cir. 2000).
Gale challenges his convictions under the federal habeas
corpus statute, 28 U.S.C. s 2255, arguing that the prosecution
violated Brady v. Maryland, 373 U.S. 83 (1963), by (1)
knowingly offering perjured testimony by Brown at the trial
itself, thereby fatally tainting the trial, and (2) failing to
disclose Brown's past perjuries. We will assume in Gale's
favor that the government's connections to Brown were such
that it could be said to have the requisite knowledge to
trigger the precedents Gale invokes. But Gale has offered no
reason to think that Brown's testimony at his trial was
perjurious. And, again assuming that the government could
be said to have had the kind of knowledge or notice of
Brown's past perjuries to create an obligation to disclose
them to Gale, the non-disclosure was irrelevant because there
is no "reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would
have been different." United States v. Bagley, 473 U.S. 667,
682 (1985) (opinion of Blackmun, J.).
* * *
The facts of Gale's case have been set out at length in his
direct appeal, United States v. Gale, 136 F.3d 192 (D.C. Cir.
1998), so we will repeat them here only as relevant to his
s 2255 action. He was arrested in an apartment where the
police found drug-related paraphernalia, including bagging
equipment, ziplock bags, white powder, cutting agents, razor
blades, measuring equipment, electronic scales, plastic gloves,
cellular phones, beepers, and nine Amtrak tickets in various
names. Although the police recovered no drugs from Gale
himself, his co-defendant, who was with Gale in the apartment
at the time, possessed both cocaine base and 118 ziplock bags
of a mixture of cocaine and heroin. The apartment also
contained cocaine powder on a paper plate, more cocaine in a
box in the kitchen, and marijuana in the living room and
kitchen.
Brown, who had no role in the arrest or other events
leading to the prosecution, testified as an expert witness on
narcotics. He said that he was "presently a narcotics consul-
tant to the Metropolitan Police Department [("MPD")] in the
District of Columbia." As the prosecutor sought to establish
Brown's qualifications as a narcotics expert, defense counsel
said, "I have no objection if he's seeking to qualify Detective
Brown. If he wants to go on, that's fine, too." The prosecu-
tor then continued briefly, establishing that Brown had previ-
ously been an active member of the MPD for 26 years, during
which, Brown said, he "worked homicide, checking fraud,
robbery, prostitution, gambling, and of course my last assign-
ment, which lasted for 22 years, was as a narcotics investiga-
tor with the Narcotics and Special Investigations Division
[("NSID")]."
Brown testified that in his 22 years at NSID, he probably
had worked on 1,500 narcotics cases and had become familiar
with how heroin and cocaine are packaged, sold, and used in
the District of Columbia. Brown did not testify about his
educational background (the subject of his false testimony
that ultimately led to his perjury convictions) nor about being
qualified as an expert in other cases. Without objection from
the defense, the court allowed Brown to testify as an expert.
Brown explained generally how cocaine and heroin are
packaged and sold in the city, identifying how various items
found at the apartment are used. As is relevant to this
appeal, Brown described "what we call a 'pev' in the pharma-
cy world," which he said was "used to crush items that are in
a rock-hard form. You pulverize it, you break it down into a
crystalline or powder form." He also explained that rubber
gloves can be used in the drug preparation process to prevent
transferring residue from hand to mouth. And he testified as
to the street values of various substances and explained the
chain-of-custody procedures used by MPD and the Drug
Enforcement Administration to safeguard narcotics evidence.
In addition, Brown testified generally about the risks asso-
ciated with the drug business, including "being ripped off,
stuck up or robbed, or the possibility of the substances being
seized by the police." Because of these risks, he testified, a
drug trafficker "would never allow anyone that's not involved
in the business to even be in any way associated, especially if
the place where those substances are being prepared, what
we call a 'bag-up house,' is being prepared for distribution
purposes."
The jury found Gale guilty, and he was sentenced to 121
months of incarceration followed by three years of supervised
release. We upheld the conviction and sentence. See United
States v. Gale, 136 F.3d 192.
In his petition under s 2255 Gale argued that the govern-
ment had violated the Brady rule in two ways. First, he said,
it had introduced testimony that it knew or should have
known was perjured, specifically various aspects of Brown's
self-identification as an expert. Second, he said the govern-
ment violated Brady by failing to disclose that Brown had
committed perjury in other cases and had lied in a prior
application for re-employment at the MPD. Gale also sought
discovery "to determine the nature and extent of Brown's
perjury."
The district court rejected Gale's petition and denied his
request for discovery. We affirm for reasons similar but not
identical to those given by the district court.
* * *
Gale first contends that his trial was tainted because Brown
committed perjury at that trial. Gale cites three instances:
while Brown used the phrase "we in the pharmacy world"
(when referring to "what we in the pharmacy world call a
'pev' "1), in fact he had no pharmacy degree; while Brown
said that he had "worked homicide," in fact he was never
specifically assigned to the homicide division or as a homicide
investigator; and while he identified himself as a "narcotics
consultant" to the MPD, he was at the time not officially
employed by the MPD.
Under United States v. Agurs, 427 U.S. 97 (1976), "a
conviction obtained by the knowing use of perjured testimony
is fundamentally unfair, and must be set aside if there is any
reasonable likelihood that the false testimony could have
affected the judgment of the jury." Id. at 103 (footnote
omitted). We assume arguendo that the government's use of
the challenged testimony, to the extent it was false, could--
because of Brown's various professional links to the govern-
ment--be viewed as "knowing use" within the meaning of
Agurs. But as the district court found, Gale has failed to
show that Brown's statements were false.
While Brown did not possess a pharmacy degree, he didn't
claim to: rather, he merely implied an affiliation with "the
pharmacy world," something he undoubtedly had in light of
his years of investigating and testifying about the process of
making, packaging, and distributing drugs, albeit illegal ones.
Nor can we say that his statement about having "worked
homicide" was perjury. Brown testified that he "worked
homicide, checking fraud, robbery, prostitution, gambling,
and of course my last assignment, which lasted for 22 years,
__________
1 Gale does not contend that the use of the term "pev" consti-
tuted perjury. At trial, Brown stated that a "pev" is a pharmaceu-
tical tool "used to crush items that are in rock-hard form." While
not characterizing this statement as perjury, Gale notes in his reply
brief that he has been unable to find a definition of the term.
Reply Br. at 9. Our searches have been equally unavailing.
was as a narcotics investigator." Gale has presented no
argument that Brown did not work on homicide cases, only
that he was never expressly assigned to a homicide division.
That is not enough to make Brown's general statement
perjury. Finally, Gale presented no reason to doubt that
Brown was a "narcotics consultant" to the government, as he
was an expert appearing in numerous cases on the govern-
ment's behalf. Nor is there any "reasonable probability" that
any gap between Brown's statements and perfect truth on
these trivial and peripheral issues could have affected the
judgment of the jury. Thus there can be no Agurs violation.
Second, Gale argues that the government committed a
Brady violation by failing to advise him of Brown's prior
perjuries and the incomplete information on his job applica-
tion. Again we assume in Gale's favor that it is possible to
attribute Brown's knowledge of his past perjury to the prose-
cutors for Brady purposes. Compare United States v.
Brooks, 966 F.2d 1500, 1502-05 (D.C. Cir. 1992) (discussing
scope of prosecutor's obligation to search for potentially
exculpatory materials). Gale's claim fails, nonetheless, be-
cause the non-disclosure was immaterial.
Whereas the prosecution's knowing use of false testimony
entails a veritable hair trigger for setting aside the conviction
("any reasonable likelihood that the false testimony could
have affected the judgment of the jury," see Agurs, 427 U.S.
at 103), non-disclosure of exculpatory evidence (including
impeachment evidence) is governed by a more general stan-
dard: "[F]avorable evidence is material, and constitutional
error results from its suppression by the government, 'if
there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would
have been different.' " Kyles v. Whitley, 514 U.S. 419, 433-34
(1995) (quoting United States v. Bagley, 473 U.S. 667, 682
(1985) (opinion of Blackmun, J.); Bagley, 473 U.S. at 685
(White, J., concurring in part and concurring in the judgment
and in the formula above). The defendant bears the burden
of showing a reasonable probability of a different outcome.
See Strickler v. Greene, 527 U.S. 263, 291 (1999). In applying
this test, the court must consider the non-disclosure dynami-
cally, taking into account the range of predictable impacts on
trial strategy. See, e.g., United States v. Bowie, 198 F.3d
905, 909-12 (D.C. Cir. 1999).
Gale's arguments do not meet this burden. He has offered
no reason to believe that, had the impeachment evidence in
question "been disclosed to the defense," the government
would have foolishly charged ahead, blindly offering Brown
and exposing itself to his inevitable demolition on cross. Why
would it have done so, rather than simply offering another
expert? Brown's expertise was drawn not from his command
of some arcane field but from an experience that is widely-
shared in urban police forces: he had investigated narcotics
cases for many years. Moreover, while the government has
argued that it had several narcotics experts available from
MPD (and identified one in particular, Sergeant Brennan,
who is a 25-year veteran narcotics investigator), Gale has
offered nothing suggesting that Brown could not have been
replaced with a similarly qualified witness. This case is thus
unlike the ones cited by Gale, Kyles v. Whitley and Strickler
v. Greene, 527 U.S. 263 (1999), in both of which the impeached
witness was a fact witness who could not be readily replaced.
By contrast, in our case of United States v. Williams, 233
F.3d 592 (D.C. Cir. 2000), although applying a different
substantive standard to a Rule 33 motion for a new trial, we
noted the availability of other experts to offer exactly the
same evidence as Brown. Id. at 595. For other cases
involving readily replaceable witnesses, see United States v.
Matthews, 168 F.3d 1234, 1242-43 (11th Cir. 1999); United
States v. Garcia, 13 F.3d 1464, 1472 (11th Cir. 1994).
Gale raises two objections. First, he cites hearsay from
news articles suggesting that Brown was a particularly char-
ismatic expert witness, and argues that a replacement would
have been less effective. We see no reason to credit such
hearsay--other defendants are convicted both in the District
of Columbia and across the country when experts other than
Brown testify. Even if Brown had been the "best" expert
witness, we have no reason (and no evidence) to believe that
the "second best" witness would have been materially inferi-
or. Furthermore, the "charisma" argument on which Gale
relies is precisely the type of demeanor evidence that disap-
pears at the time of trial. See, e.g., United States v. Zeigler,
994 F.2d 845, 849 (D.C. Cir. 1993); Dyer v. MacDougall, 201
F.2d 265, 269 (2nd Cir. 1952). Thus the evidence Gale offers--
hearsay regarding evanescent evidence of charisma--does not
create a reasonable probability that government use of a
different expert with similar experience in narcotics cases
would have changed the result.
Second, Gale argues that Brown's testimony that persons
not involved in the drug trade would not be in an apartment
used for packaging drugs was particularly damaging to Gale's
defensive claim that he just happened to be present. Gale
goes on to suggest--but not affirmatively argue--that only
Brown would have been willing to offer such testimony:
His expert claim that only those "involved" in the drug
business would be present in an apartment containing
drugs--which was devastating to Mr. Gale's defense in
this case--seems particularly suspect. The government
did not submit any declaration from any other expert
expressing agreement with Brown's testimony in Mr.
Gale's case.
To the extent that Gale is simply arguing that the testimo-
ny in question may have been overstated, we assume that to
be true. Surely a non-participant might be present in an
apartment containing drugs because, for example, the drugs
and drug paraphernalia were hidden, or because the non-
participant's presence was momentary and accidental. But
Gale never articulates such an argument, likely because any
such overstatement (besides being easily torpedoed on cross)
was wholly irrelevant to him--who at the time officers en-
tered had been sleeping in the apartment, which was positive-
ly littered with drugs and drug paraphernalia in plain view.
See United States v. Gale, 136 F.3d at 193-94. In fact, until
pressed at oral argument, Gale did not even claim that
Brown's statement in this regard was false but merely that
there are "questions about the truth of everything to which
[Brown] testified."
Further, any suggestion that, as a matter of substance,
only Brown would give such testimony is plainly untrue.
Indeed, in a case now on the court's docket, a Detective
Tyrone Thomas from the MPD provided the following testi-
mony:
Everybody who is a part of that has a role in that drug
operation, maybe one of those roles that I mentioned
earlier, and that's to oversee those operations. I mean,
it's--nor would anyone want to go around and just be
hanging around a scenario where some large quantities
of narcotics are gonna be sold because they're not gonna
want to risk being caught up in a situation like that
unless they have some method or role involved in the
drug operation.
Just like somebody going to rob a bank, they're not
gonna take a friend along just for the ride; nor is that
friend gonna want to be going to where somebody is
gonna rob a bank.
United States v. Bailey, No. 99-164-4, Tr. Vol. VI, 1/26/01, p.
5. (We of course express no opinion as to the permissibility
of testimony so formulated.) In light of other experts who
have offered substantively similar testimony and Gale's fail-
ure to even allege before argument that the cited testimony
was false, we cannot say that Gale has shown a "reasonable
probability" of a different result had the government dis-
closed the potential impeachment evidence against Brown.
Finally, we reject Gale's argument that the trial court
erred in denying his request for further discovery about
Brown's alleged perjury in this and other trials, and materials
"reflecting knowledge" of Brown's perjuries within the gov-
ernment. We review the district court's denial of this request
for abuse of discretion. Bracy v. Gramley, 520 U.S. 899, 909
(1997). We find no such abuse, as there was no real chance
that discovery could have turned up information altering the
outcome. As we have seen, there is no serious claim of
perjury in Gale's trial. And with respect to knowing use of a
perjurer, additional discovery would be of no use because we
have assumed in Gale's favor government knowledge of
Brown's perjurious inclinations but found no Brady violation:
were that assumption true and the information disclosed to
the defense, the government would have replaced Brown with
a different expert.
The judgment of the district court is
Affirmed.