United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 22, 2007 Decided May 4, 2007
No. 06-3100
UNITED STATES OF AMERICA,
APPELLANT
v.
SORENSON O. ORUCHE,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 01cr00287-01)
Florence Y. Pan, Assistant U.S. Attorney, argued the cause
for appellant. With her on the briefs were Jeffrey A. Taylor,
U.S. Attorney, and Roy W. McLeese, III, Kenneth F. Whitted,
and T. Anthony Quinn, Assistant U.S. Attorneys.
Michael V. O'Shaughnessy argued the cause for appellee.
With him on the brief was Mary C. Kennedy.
Before: HENDERSON, ROGERS and BROWN, Circuit Judges.
Opinion for the Court filed by Circuit Judge BROWN.
BROWN, Circuit Judge: The government charged appellee
2
Sorenson O. Oruche with one count of conspiracy to possess
(with intent to distribute) and to distribute heroin, see 21 U.S.C.
§ 846; four counts of heroin distribution, see id. § 841; and four
counts of interstate travel in aid of racketeering (“ITAR”), see
18 U.S.C. § 1952. The jury convicted Oruche on the conspiracy
count, on three of the heroin-distribution counts, and on one of
the ITAR counts. The jury failed to reach a verdict as to the
remaining counts. Subsequently, the district court granted
Oruche’s motion for a new trial as to all his convictions, finding
Brady violations, see Brady v. Maryland, 373 U.S. 83 (1963)
(Brady), and violations of the Jencks Act, see 18 U.S.C. § 3500.
The government brought this appeal pursuant to 18 U.S.C. §
3731, which authorizes appeal from an order granting a new trial
in a criminal case. We conclude the district court erred and
reverse the new trial order, remanding for further proceedings.
I
In summarizing the trial evidence, we focus on the counts
that resulted in convictions. Count one, the conspiracy count,
was based primarily on evidence offered in support of the other
counts. In support of count two (ITAR), Tequila Williams and
Alvin Ogar testified about a trip they took with Oruche on
September 17, 2000, from Washington, D.C. to New York City.
Williams drove Oruche’s rented Jaguar to an apartment where
Oruche obtained a baseball-sized package of heroin. He called
Williams into the bedroom and directed her to put the heroin in
her purse. Williams did so. Meanwhile, Ogar waited in the
livingroom. Oruche, Williams, and Ogar spent about twenty
minutes at the apartment and then drove back to D.C., leaving
around 11:00 p.m. On the way back, Oruche told Williams he
would “take the beef” if they got pulled over by police. They
arrived in the District early in the morning on September 18,
2000, and Oruche drove to several locations, trying to arrange
a meeting with someone named “Aaron.” After Oruche met
3
with Aaron, he told Williams and Ogar that Aaron would have
killed him if they had not been present.
Count three was a heroin distribution count. Williams and
undercover police officer Robert Arrington testified about this
transaction. Officer Arrington arranged to buy an ounce of
heroin from Williams. On September 21, 2000, Arrington met
Williams in a parking lot and negotiated a price for the heroin.
Williams said she was “waiting for her man” and would be able
to complete the transaction at 3:00 p.m. the same day at a strip
club in the District where Williams worked as a bartender.
Williams left the parking lot and called Oruche, who told her he
was on his way. Officer Arrington arrived at the club at 2:45
p.m. and met with Williams who told him to wait in his car. A
short time later, Oruche arrived in a Jaguar, went inside the club,
and gave Williams the heroin. Williams walked out of the club,
got into Officer Arrington’s car, and sold him 24.1 grams of
heroin for $4,000. Oruche left the club, and Williams later went
to his hotel and gave him the money from the sale. As
corroborating evidence, the prosecution presented audio and
video recordings of Arrington conversing with Williams. In
addition, video recordings showed Oruche entering the club at
3:09 p.m., Williams coming out at 3:18 p.m. to meet with
Arrington, Oruche coming out at 3:22 p.m. and driving away,
and Williams driving away at 3:26 p.m. Evidence of cell-phone
usage also confirmed several calls between Williams and
Oruche on the day of the transaction, including calls at 12:05
p.m., 12:08 p.m., 12:35 p.m., 2:11 p.m., 2:17 p.m., 2:53 p.m.,
3:28 p.m., and 3:45 p.m.
Count five was another heroin distribution count. David
Marley, a paid government informant with a significant criminal
record, and Special Agent Mark Ross from the Drug
Enforcement Administration (DEA) both testified. Marley
became associated with Oruche; Oruche trusted him because
4
they were both African. In May 2001, Oruche solicited Marley
to sell heroin for him. Oruche said he did not want to deal in
amounts less than one hundred grams, which he would sell for
$11,000. Marley contacted Special Agent Ross, and he and
Ross began setting up heroin purchases. On June 12, 2001,
Marley met Oruche in Oruche’s vehicle, while Ross watched
from a distance. Oruche gave Marley 176 grams of heroin and
told Marley he wanted $16,000 in return. After Oruche left,
Ross picked up Marley and took the heroin. Three days later,
Marley went to Oruche’s apartment and gave him $6,000 in pre-
recorded DEA funds, as a partial payment toward the $16,000
purchase price. During this visit, Marley saw five one-hundred-
gram “balls” of heroin lying on Oruche’s bed. On June 26, 2001
and July 3, 2001, Special Agent Ross met directly with Oruche,
paying him first $6,000 and then $4,000 in pre-recorded DEA
funds, thereby satisfying the $16,000 debt owing from the June
12th transaction. As corroborating evidence in relation to this
count, the prosecution presented tape recordings of
conversations between Marley and Oruche.
Count nine was a third heroin distribution count. Marley
and Special Agent Ross testified. On July 16, 2001, Marley
went to Oruche’s apartment and received a portion of a sweater
into which “straws” containing a significant amount of heroin
had been interwoven with the sweater yarn. Oruche asked
Marley to extract the heroin from the sweater. Marley took the
sweater and gave it to DEA officials who later determined it
contained 212.9 grams of heroin (about half a pound). Marley
and Oruche also discussed the removal of the heroin over the
telephone, and this telephone call was recorded. Later the same
day, Special Agent Ross called Oruche, and in a three-way
telephone conversation between Ross, Oruche, and Marley, Ross
told Oruche he wanted to buy two-hundred grams of heroin.
Oruche agreed to make the sale. That evening, law-enforcement
agents arrested Oruche at a rental car office near Union Station.
5
As noted, these counts resulted in convictions. On August
22, 2003, about a year after the convictions, the district court
conducted a “Kastigar hearing” to determine whether the
government had derived any of its evidence from an allegedly
involuntary police interview with Oruche. Cf. Kastigar v.
United States, 406 U.S. 441, 460 (1972) (government has burden
of proving its evidence is not derived from testimony as to
which the defendant had received Fifth Amendment immunity).
At this hearing, held before a different judge than the judge who
presided at Oruche’s trial, prosecutors and law-enforcement
officials testified about a “debriefing” session held with Tequila
Williams shortly after her arrest on December 6, 2000.
Detective Barbara Lyles identified a page of handwritten notes
she had recorded during the debriefing session, along with a
second page on which she had rewritten and expanded the notes
written on the first page. (She claimed to be “almost positive”
she rewrote the notes the same day as the debriefing.) The word
“Tungy” (a name) appears on the first page of notes. Directly
under the word “Tungy” is the word “coke.” To the left of the
word “Tungy”—in the margin and not clearly associated with
the word “Tungy”—is the word “Heroin.” Touching the “T” of
the word “Tungy” is an ambiguous stroke of the pen, shaped like
two sides of a triangle. Oruche argues this stroke of the pen is
an arrow pointing from the word “Heroin” to the word “Tungy.”
The page also includes a few notations in Tequila Williams’s
handwriting. Specifically, Williams wrote three telephone
numbers and also the words “O” and “Girlfriend (Leslie)” on
Detective Lyles’s notes. The prosecution provided these notes
to the defense only a few days before the Kastigar hearing.
On December 2, 2003, the defense filed a motion for a new
trial based on Brady and the Jencks Act, asserting Williams’s
cross-examination could have been much more effective if the
defense had known about Williams’s possible second source for
heroin. This argument gained additional support from an
6
irregularity in Detective Lyles’s testimony at the Kastigar
hearing. Lyles first testified Tungy was in fact a heroin dealer,
and Oruche and Tungy “had a shop off of Upshur Street.” When
asked whether Tungy sold heroin, Lyles answered: “With ‘O,’
yes, sir.” Six months later, Lyles changed her testimony,
submitting a sworn affidavit to the court, explaining Tungy was
a cocaine dealer, not a heroin dealer, and claiming she had
testified incorrectly in this regard because she was mistaken.
Detective Lyles also testified about this mistake in hearings held
before the judge who presided at Oruche’s trial.
The Brady/Jencks Act motion remained unresolved on
December 14, 2004, when the government informed the district
court it had discovered additional impeachment evidence
regarding Tequila Williams. Specifically, the government
eventually produced a transcript of testimony Williams gave to
a grand jury concerning a former boyfriend’s possible
involvement in a murder. In this testimony, Williams implicated
the boyfriend in the murder and admitted she had previously lied
to police in an effort to protect the boyfriend. She testified:
“[My boyfriend] told me not to [tell the truth], and he used to
abuse me, so I thought that he’d probably beat me up or
something.” The government also produced notes of Williams’s
earlier statements to the police, in which Williams denied the
boyfriend’s involvement.
After receiving these additional documents, the defense
renewed its request for a new trial based on Brady and the
Jencks Act, arguing the additional impeachment evidence would
have allowed the defense to characterize Williams as an
admitted liar. In addition, the defense moved to dismiss the
indictment with prejudice due to prosecutorial misconduct.
On May 17, 2005, the district court granted the motion for
a new trial. The court stated the failure to disclose the
7
documents “significantly impaired defense counsel’s ability to
investigate new leads, to further impeach the credibility of a
principal prosecution witness, Tequila Williams, and to make
additional powerful arguments to the jury.” The court found
Detective Lyles’s testimony “contradictory, evasive, oftentimes
hostile” and declined to give it any credit. The court also
suggested Lyles recently had prepared the second page of her
notes from the Williams debriefing in a fraudulent effort to
bolster her changed testimony. The court did not engage in any
detailed analysis of how the defense might have used the
impeachment evidence at trial or how the prosecution might
have responded; rather, the court simply stated: “Since this
Court cannot conclude that Oruche’s trial was fair, this Court
will grant his motion for a new trial, substantially for the reasons
advanced by defense counsel and to avoid a miscarriage of
justice.” The government sought reconsideration, arguing the
undisclosed evidence was not material and would not have
affected the verdict, but the district court denied reconsideration,
repeating that the failure to disclose the documents
“significantly impaired defense counsel’s ability to further
impeach the credibility of a princip[al] witness and to make
powerful arguments to the jury.” The court also denied the
motion to dismiss the indictment.
The government brought this appeal pursuant to 18 U.S.C.
§ 3731.
II
Generally, this court reviews the district court’s grant of a
new trial for abuse of discretion. See United States v. Hall, 324
F.3d 720, 722 (D.C. Cir. 2003); Langevine v. District of
Columbia, 106 F.3d 1018, 1023 (D.C. Cir. 1997). However,
when confronted with a “purely legal question,” our review is de
novo. Hall, 324 F.3d at 722; see, e.g., United States v. Marquez,
8
291 F.3d 23 (D.C. Cir. 2002). Brady claims present something
of a special situation. Thus, as to findings of fact made by the
district court, including determinations of credibility made both
at trial and in post-trial proceedings, this court would defer
under an abuse of discretion standard. See United States v. Sipe,
388 F.3d 471, 478-79 (5th Cir. 2004); United States v. Perdomo,
929 F.2d 967, 969 (3d Cir. 1991); Founding Church of
Scientology of Wash., D.C., Inc. v. Webster, 802 F.2d 1448,
1457 (D.C. Cir. 1986). But once the existence and content of
undisclosed evidence has been established, the assessment of the
materiality of this evidence under Brady is a question of law. In
this inquiry, the question of prejudice is folded into the
determination of whether a violation has occurred. As the
Supreme Court has explained, “strictly speaking, there is never
a real ‘Brady violation’ unless the nondisclosure was so serious
that there is a reasonable probability that the suppressed
evidence would have produced a different verdict.” Strickler v.
Greene, 527 U.S. 263, 281 (1999). Therefore, once a court finds
a Brady violation, a new trial follows as the prescribed remedy,
not as a matter of discretion. See Kyles v. Whitley, 514 U.S.
419, 421-22, 435 (1995).
On review, then, the question is not whether the district
court properly exercised its discretion to order a new trial, but
whether the court properly found a Brady violation. This
distinction makes a Brady ruling different from other new trial
rulings, because “whether the government has breached its
obligations under Brady is a question of law,” subject to de novo
review. In re Sealed Case No. 99-3096 (Brady Obligations),
185 F.3d 887, 892 (D.C. Cir. 1999); see also United States v.
Cuffie, 80 F.3d 514, 517 (D.C. Cir. 1996); United States v.
Lloyd, 71 F.3d 408, 411 (D.C. Cir. 1995). Because the question
is one of law, we can aptly apply here a point we made in a
different context: “‘[l]ittle turns . . . on whether we label review
of this particular question abuse of discretion or de novo,’ for
9
‘[a] district court by definition abuses its discretion when it
makes an error of law.’” Chappell-Johnson v. Powell, 440 F.3d
484, 487 (D.C. Cir. 2006) (alterations in original) (quoting Koon
v. United States, 518 U.S. 81, 100 (1996)).
We review de novo the district court’s finding that the
Jencks Act applies, United States v. Williams-Davis, 90 F.3d
490, 512 (1996), and if we find a Jencks Act violation, we apply
the harmless-error standard to determine whether a new trial is
appropriate, United States v. Lam Kwong-Wah, 924 F.2d 298,
309-10 (D.C. Cir. 1991).
Oruche argues we should review the district court’s
decision for abuse of discretion because the court granted the
new trial “for the reasons advanced by defense counsel and to
avoid a miscarriage of justice.” Oruche reads the district court’s
order as a broad finding of unfairness in the trial due to
“improper conduct, evasive and incredible testimony, and
suppression of material evidence,” and therefore he cites non-
Brady, non-Jencks Act cases emphasizing the wide discretion
the trial court has to grant a new trial. See United States v.
Williams, 113 F.3d 243 (D.C. Cir. 1997); Weil v. Seltzer, 873
F.2d 1453 (D.C. Cir. 1989); Grogan v. Gen. Maint. Serv. Co.,
763 F.2d 444 (D.C. Cir. 1985); Schneider v. Lockheed Aircraft
Corp., 658 F.2d 835 (D.C. Cir. 1981). This argument fails to
appreciate the nature of our review where a Brady claim is the
critical reason for the grant of a new trial. Oruche based his new
trial motion on several asserted irregularities in the trial, not
merely the Brady/Jencks Act issue, but the court’s order
granting a new trial makes clear the court was doing so based on
Brady and the Jencks Act. Significantly, the court cited only
Brady and the Jencks Act (and related cases) in its decision. We
conclude therefore that our review of the district court’s order is
de novo.
10
III
Generally speaking, the Supreme Court’s holding in Brady
v. Maryland requires the government to disclose, upon request,
material evidence favorable to a criminal defendant, including
evidence held by law enforcement officials. 373 U.S. at 87.
The materiality of the evidence is measured by the effect it
would have had on the result of the trial, the focus being on
fairness. Kyles, 514 U.S. at 433-34; United States v. Bagley, 473
U.S. 667, 678, 682 (1985). This court has previously articulated
the materiality standard as follows:
Our inquiry is confined to a determination of whether there
is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would
have been different. The Supreme Court has emphasized
that the question is not whether the defendant would more
likely than not have received a different verdict with the
evidence, but whether in its absence he received a fair trial,
understood as a trial resulting in a verdict worthy of
confidence. Therefore, our focus is on the potential impact
that the undisclosed evidence might have had on the
fairness of the proceedings rather than on the overall
strength of the government’s case. Evidence is material if
the undisclosed information could have substantially
affected the efforts of defense counsel to impeach the
witness, thereby calling into question the fairness of the
ultimate verdict.
Cuffie, 80 F.3d at 517 (internal alteration, citations, and
quotation marks omitted). Thus, in regard to an asserted Brady
violation the question is whether the failure to disclose
significantly undermined the fairness of the verdict.
The Jencks Act imposes obligations on the government that
11
are distinct from the government’s Brady obligations, but they
may overlap to some extent. The Jencks Act requires the
prosecution in a federal criminal case to disclose “statements”
of all prosecution witnesses. The Jencks Act provides, in
relevant part, as follows:
(b) After a witness called by the United States has
testified on direct examination, the court shall, on motion of
the defendant, order the United States to produce any
statement (as hereinafter defined) of the witness in the
possession of the United States which relates to the subject
matter as to which the witness has testified. . . .
....
(e) The term “statement” . . . means—
(1) a written statement made by said witness and
signed or otherwise adopted or approved by him; [or]
(2) a stenographic, mechanical, electrical, or other
recording, or a transcription thereof, which is a
substantially verbatim recital of an oral statement made
by said witness and recorded contemporaneously with
the making of such oral statement . . . .”
18 U.S.C. § 3500.
Under the definition in subparagraph (e), notes of a
conversation are not generally Jencks Act material (unless they
represent a full transcription), Norinsberg Corp. v. U.S. Dep’t of
Agric., 47 F.3d 1224, 1228 (D.C. Cir. 1995), but a statement that
is handwritten and approved by the witness is Jencks Act
material. Violations of the Jencks Act are subject to harmless-
error review. See, e.g., Lam Kwong-Wah, 924 F.2d at 310.
IV
At the outset, we find that any lost opportunity to impeach
12
Tequila Williams could not possibly have affected the verdicts
on counts five and nine (as to which Williams did not testify).
Oruche argues these convictions are tainted because of a
spillover effect from the convictions on counts two and three,
where Williams was a key witness. Oruche points out in this
regard that the prosecution had argued against severance of
these counts, claiming all the counts were part of a common
scheme. The two considerations (severance and Brady
materiality) are so different, however, that the asserted
inconsistency in the government’s argument disappears. It may
have been quite appropriate to deny severance based on the
relationship between the various counts; nevertheless, that
relationship is not so great that the convictions on counts five
and nine are placed in doubt simply because testimony on other
counts is challenged.
Counts one, two, and three pose a somewhat more serious
question. Count one is the conspiracy count, and we cannot
know whether the jury based its conspiracy finding on
Williams’s testimony. Count two is the ITAR count arising
from Oruche’s New York trip, and Williams was an important
witness. As to either of these counts, if the undisclosed
impeachment evidence discredited Williams’s testimony,
perhaps the fairness of the verdict might be questioned. On
count three, Oruche’s argument is even stronger. Not only did
Williams testify about the sale to Officer Arrington on
September 21, 2000, but the impeachment evidence arguably
supports Oruche’s claim that Williams had another source
(besides Oruche) for the heroin she sold. Thus, the resolution of
this case can be divided into two issues: (1) the question of
Williams’s credibility in the eyes of the jury, and (2) the
possibility Williams had an alternative source for heroin.
13
A
As regards Williams’s credibility in the eyes of the jury—an
issue that might impact count one, two, or three—we first
consider the government’s failure to disclose Detective Lyles’s
notes (including Williams’s jottings on those notes). The notes
taken by Lyles are not Jencks Act material (because they are not
a full transcription of Williams’s statement), Norinsberg, 47
F.3d at 1228-29; see also 18 U.S.C. § 3500(e)(2) (defining
covered “statement[s]” to include only “a substantially verbatim
recital of an oral statement” of a witness); Palermo v. United
States, 360 U.S. 343, 352-53 (1959) (holding that “summaries
of an oral statement which evidence substantial selection of
material . . . are not to be produced” under the Jencks Act), but
the few words and numbers Williams wrote on the notes might
be Jencks Act material, assuming they qualify as “a written
statement made by [Williams] and . . . approved by [her].”1 18
1
Notwithstanding the government’s repeated concession to the
contrary at oral argument, we do not believe the notations satisfy the
Jencks Act’s definition of a “statement.” The Jencks Act defines a
“statement” subject to disclosure as “a written statement made by [a
testifying] witness and signed or otherwise adopted or approved by
him.” 18 U.S.C. § 3500(e)(1) (emphasis added). The government
believes “[t]he notations actually written by Williams” meet this
definition. Appellant’s Br. at 57. Yet the notations—assuming
Williams’s brief written identification of “O,” O’s “Girlfriend
(Leslie)” and their cell phone numbers constitute “statement[s]”—are
not accompanied by Williams’s signature or any other indication of
her adoption thereof. See Appx. 15 at 1. The government’s
interpretation therefore rests on the assumption that, by merely making
the notations, Williams also “signed or otherwise adopted or
approved” them. 18 U.S.C. § 3500(e)(1). That interpretation,
however, renders redundant the Jencks Act’s requirement that a
testifying witness provide both a written statement “and” a signature
(continued...)
14
U.S.C. § 3500(e)(1). Nevertheless, we are not persuaded the
release of these notes would have enabled the defense to
undermine Williams’s credibility. Significantly, the notes do
not suggest Williams is a liar. At most, they weakly support an
argument that she had a second source for heroin, but that
argument does not particularly impact her credibility. If, at trial,
the defense had possessed the notes, counsel could have cross-
examined Williams about the source of the heroin she sold to
Arrington, and given the corroborating evidence, she likely
would have denied Tungy was the source. That denial would
not have undermined her credibility, because the defense lacked
any strong evidence implicating Tungy as the true source, and
the prosecution had plenty of evidence implicating Oruche
(including cell-phone usage and video recordings showing
Oruche entering the club at the critical time when the transfer of
heroin took place and leaving only minutes later). Similarly, we
do not see how Williams’s jottings on the sheet of notes (three
telephone numbers and the words “O” and “Girlfriend (Leslie)”)
could have been used to undermine her credibility.
We next consider the government’s failure to disclose the
grand jury testimony in which Williams admitted she had lied to
police in 1993 to protect her boyfriend. The transcript of this
1
(...continued)
or other affirmation of that statement. Id. Because “statutory
language should be construed so as to avoid redundancy,” Parker v.
Califano, 561 F.2d 320, 325 (D.C. Cir. 1977); see also Gustafson v.
Alloyd Co., 513 U.S. 561, 574 (1995) (courts should “avoid a reading
[of statutory language] which renders some words altogether
redundant”), we read 18 U.S.C. § 3500(e)(1) to require something
more than the testifying witness’s written notations on a sheet of paper
to establish a Jencks Act “statement.” Thus, in the absence of
Williams’s signature or some other sign of approval of the notations
appearing on Detective Lyles’s debriefing notes, we do not believe
they are subject to disclosure under the Jencks Act.
15
testimony (though a full transcription) is not Jencks Act
material, because it does not “relate[] to the subject matter” of
Williams’s testimony in the Oruche case. Id. § 3500(b). The
grand jury transcript, however, could certainly have been used
to impeach Williams’s credibility. The transcript (and related
notes) show that, nine years before Oruche’s trial, Williams had
lied to police in order to protect her boyfriend. Defense counsel
could have used this evidence to support a claim that Williams
was a liar who would say whatever suited her purposes in the
moment, even when speaking with authority figures about a
matter of grave importance. Nevertheless, given the “reasonable
probability” standard articulated by the Supreme Court for
Brady claims, Kyles, 514 U.S. at 434; Bagley, 473 U.S. at 682,
we do not believe this evidence would have affected the
outcome at trial.
Williams was thoroughly impeached at trial. The defense
cross-examined her about her work in a strip club, her use of
PCP, her prior felony convictions, and the benefits she was
receiving in exchange for her testimony. She also admitted to
the jury that she had lied in the past, and she admitted to using
an alias on her plea agreement. See Cuffie, 80 F.3d at 518
(noting that “undisclosed impeachment evidence can be
immaterial because of its cumulative nature . . . if the witness
was already impeached at trial by the same kind of evidence”).
Moreover, the lies Williams told in connection with the
investigation of her boyfriend in 1993 were not the sort of lies
that would have significantly undermined her testimony at
Oruche’s trial. The lies were nine years old, and in any case, a
lie told to protect a boyfriend, and later recanted when under
oath, is a very different thing from a lie told under oath at a
criminal trial to falsely convict a defendant of heroin
distribution. Finally, the evidence corroborating Williams’s
testimony on counts one, two, and three was very strong. As
noted, count one was the conspiracy count and depended
16
primarily on the evidence offered in support of the other counts.
As for count two, both Ogar and Williams testified about the trip
to New York, and Ogar’s testimony substantially corroborated
Williams. In support of count three, the video recording showed
Oruche entering and then exiting the club at precisely the time
Williams entered the club and obtained the heroin. In sum, we
think any impeachment value associated with the grand jury
transcript and related notes would have been negligible and
cumulative of similar evidence that was presented to the jury.
We cannot say the failure to disclose this evidence called into
question the fairness of the verdict. Kyles, 514 U.S. at 434;
Bagley, 473 U.S. at 678; see also United States v. Smith, 77 F.3d
511, 515 (D.C. Cir. 1996).
B
Oruche argues he could have used Detective Lyles’s notes
to suggest Tungy—allegedly Williams’s second supplier—was
the real source of the heroin Williams sold to Officer Arrington
on September 21, 2000, thereby casting doubt on the count-three
conviction. Here, Oruche is on weak ground. Oruche has no
solid evidence tending to show Williams had any other source
for heroin. The only evidence in this regard is Detective Lyles’s
notes, which include a very ambiguous reference to “Tungy.”
If, however, the government had disclosed these notes before
trial, and if Oruche, on cross-examination of Williams, had
attempted to implicate Tungy, Williams would likely have
denied Tungy was her source, and the defense would have had
nothing with which to discredit that denial. Cf. United States v.
Bowie, 198 F.3d 905, 909-11 (D.C. Cir. 1999) (considering
hypothetical impact of undisclosed evidence on cross-
examination to conclude that evidence was not material). In
addition, the notes are very weak support for the argument that
Tungy was a heroin dealer. The word “coke” appears directly
below Tungy’s name, and the word “Heroin” is some distance
17
away and not clearly associated with the word “Tungy.”
Moreover, the government could have called Detective Lyles to
interpret the notes, explaining Tungy was a coke dealer not a
heroin dealer. Of course, Lyles testified at the Kastigar hearing
that Tungy was a heroin dealer, but she later repudiated that
testimony. If in fact she erred in testifying at the Kastigar
hearing, then we cannot assume she would have made this same
error at trial.
The district court declined to credit Lyles’s claim of error,
and its finding in that regard is entitled to deference, Founding
Church of Scientology, 802 F.2d at 1457, but the district court
apparently believed Detective Lyles had fraudulently prepared
her second page of notes to bolster the reversal in her testimony.
This conclusion is plainly wrong because Detective Lyles
presented this sheet of notes at the Kastigar hearing, long before
the change in her testimony. This oversight in the court’s
analysis suggests the court may have misjudged Lyles’s
credibility, also calling into question its analysis of the
Brady/Jencks Act issue. If the court had credited Lyles’s
revised testimony that Tungy was in fact a cocaine dealer (not
a heroin dealer), then the court might have been much less
inclined to find that Detective Lyles’s notes—with their
ambiguous markings—were material exculpatory evidence.
Finally, as noted, the evidence implicating Oruche as the
source of the heroin Williams sold Officer Arrington is very
strong. Williams set up the deal with Arrington to occur at 3:00
p.m. at the club. Cell-phone records show a series of telephone
calls between Williams and Oruche on that same day, with
several calls shortly before and after 3:00 p.m. Moreover, the
video recording shows Oruche entering the club minutes before
the heroin sale and exiting the club minutes after the sale. This
evidence strongly suggests Oruche, not Tungy, was the supplier
of the heroin.
18
In sum, the government’s failure to disclose Detective
Lyles’s notes and the grand jury transcript (as well as the related
police notes from 1993) did not affect the outcome of Oruche’s
trial or call into question the fairness of the verdict, and
therefore these documents were not material for purposes of
Brady. Kyles, 514 U.S. at 433-34; Bagley, 473 U.S. at 678;
Smith, 77 F.3d at 515. The government concedes that
Williams’s jottings on Detective Lyles’s sheet of notes
constitute Jencks Act material that should have been disclosed,
but we see no possibility that disclosure of these jottings would
have affected the outcome, and therefore the error (if any) was
harmless, Lam Kwong-Wah, 924 F.2d at 310-11. The grand jury
transcript and related notes were not Jencks Act material
because they did not relate to Williams’s testimony in the
Oruche case. 18 U.S.C. § 3500(b).
V
We reverse the district court’s new trial order. As noted,
Oruche based his new trial motion on several asserted
irregularities in the trial, but the district court’s ruling focused
primarily on Brady and the Jencks Act. The court stated: “As to
other defense motions, those motions are denied in view of the
grant of the new trial.” The court was not specific as to the
substance of the defense motions it was leaving unaddressed, but
we consider it appropriate under the circumstances to remand
for further proceedings consistent with this opinion.
So ordered.