United States v. Andrews

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 16, 2007 Decided July 15, 2008

No. 07-3024

UNITED STATES OF AMERICA,
APPELLEE

v.

LATANYA ANDREWS,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 06cr00026-02)

Ryan M. Malone argued the cause for appellant. With him
on the briefs was Peter M. Brody, appointed by the court.

Daniel A. Petalas, Attorney, U.S. Department of Justice,
argued the cause and filed the brief for appellee. Roy W.
McLeese, III, Assistant U.S. Attorney, entered an appearance.

Before: ROGERS and GARLAND, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GARLAND.

Concurring opinion filed by Circuit Judge ROGERS.
 2

GARLAND, Circuit Judge: LaTanya Andrews appeals her
conviction for bribery and conspiracy to defraud the United
States on the ground that the government failed to disclose
exculpatory evidence to her in a timely fashion, in violation of
her rights under Brady v. Maryland, 373 U.S. 83 (1963). She
also appeals her sentence on the ground that the district court
applied the wrong edition of the United States Sentencing
Guidelines Manual, and in so doing violated the Ex Post Facto
Clause of the Constitution. Because we find no Brady violation,
and conclude that any error the court made in referring to the
2006 Guidelines Manual was not plain, we affirm the judgment
of the district court.

I

LaTanya Andrews worked at the Department of Veterans
Affairs Medical Center (DVAMC) for eighteen years, beginning
in 1988. In 2000, Andrews worked in the DVAMC’s payroll
section as a payroll technician. That section was located in the
same area as the human resources section -- the department
charged with storing official personnel folders, including those
pertaining to employee benefits -- in which Andrews had
worked earlier in her career. Andrews’ codefendant, Peter
Turner, worked at the DVAMC as a volunteer driver.

From 1998 to 2000, Turner was romantically involved with
Vestor Mayo, a DVAMC nurse with whom he and Andrews
sometimes commuted to work. Mayo suffered a stroke on
December 8, 2000, and she died two weeks later. At the time of
her death, Mayo was insured through the Federal Employees’
Group Life Insurance (FEGLI) program, which is administered
through the Office of Federal Employees’ Group Life Insurance
(OFEGLI). The designation-of-beneficiary form received by
OFEGLI in January 2001 listed Turner and Mayo’s mother,
Lorenza Mayo, as co-beneficiaries. Pursuant to that designation,
 3

OFEGLI distributed $20,562.90 to each beneficiary as money
market accounts on which they could draw checks. On February
1, 2001, Turner wrote Andrews a check from his beneficiary
account for $1,000. It was the first check that Turner wrote
from that account; the memorandum line stated that the money
was a loan. In March 2001, Andrews purchased a car for $800.

When Lorenza Mayo went to the DVAMC human resources
section to review the paperwork necessary to obtain her share of
her daughter’s insurance proceeds, she examined the
designation-of-beneficiary form and concluded that it was a
forgery: the handwriting and signature did not look like those
of her daughter, the Social Security number was incorrect, and
Lorenza’s name and address were misspelled. Lorenza and her
husband reported the forgery to OFEGLI, which in turn
forwarded the claim to the Office of Personnel Management
(OPM) for review.

In November 2005, Andrews submitted to a voluntary
interview by Special Agents Shantel Robinson and Derek Holt
of OPM’s Office of Inspector General. When asked whether she
had ever received money or a loan from Turner, Andrews said
he had never given her anything more than $10. When
confronted with the $1,000 check that he had written to her, she
changed her story, ultimately claiming that it was a loan. The
agents recorded Andrews’ statements in the handwritten notes
they took during the interview and in Robinson’s typewritten
report prepared the same day.

On January 31, 2006, Andrews and Turner were indicted
and charged with one count of conspiracy to defraud the United
States, in violation of 18 U.S.C. § 371, and one count of bribery,
in violation of 18 U.S.C. § 201(b). The indictment alleged that
Turner and Andrews conspired to defraud the United States and
that Turner paid Andrews $1,000 for assisting him in placing the
 4

forged beneficiary form in the file. The indictment also charged
that Andrews and Turner agreed to conceal the conspiracy and
any acts committed in furtherance thereof.

On July 31, 2006, after a four-day trial, a jury returned
guilty verdicts against Andrews and Turner on both the
conspiracy and bribery charges. On February 9, 2007, the
district court sentenced Andrews to concurrent 15-month terms
of imprisonment. In so doing, the court applied the then-
effective 2006 United States Sentencing Guidelines Manual in
an advisory fashion, as required by United States v. Booker, 543
U.S. 220, 245 (2005).

Andrews challenges the judgment below on two principal
grounds: (1) that the government violated her rights under
Brady v. Maryland, 373 U.S. 83, by failing to produce Special
Agents Robinson’s and Holt’s handwritten interview notes prior
to trial; and (2) that the district court erred under the U.S.
Sentencing Guidelines and the Constitution’s Ex Post Facto
Clause by calculating her sentence based on the 2006
Sentencing Guidelines Manual, rather than on the Manual that
was in effect in February 2001 -- the month she contends the
conspiracy ended. We consider these challenges below.1

1
Andrews also contends that the evidence at trial was insufficient
to support her conviction, although she concedes that it was enough to
sustain Turner’s. Mot. for Directed Verdict at 11 (Sept. 12, 2006).
Our standard for reviewing such a challenge is narrow: we must
accept the jury’s guilty verdict if we conclude that “any rational trier
of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979)
(emphasis omitted). “In making that determination, ‘the prosecution’s
evidence is to be viewed in the light most favorable to the government,
drawing no distinction between direct and circumstantial evidence,
and giving full play to the right of the jury to determine credibility,
weigh the evidence and draw justifiable inferences of fact.’” United
 5

II

We begin with Andrews’ claim under Brady v. Maryland.

A

In pretrial hearings, the district court ordered the
government to produce, inter alia, all Brady materials prior to
trial.2 On February 16, 2006, the government produced 3,134
pages of documents and records as part of its pretrial discovery.
Under separate cover, it also turned over Robinson’s typewritten
interview report, which conveyed the substance of Andrews’
answers and noted Holt’s presence during the interview. Before
trial, the government represented to the court that it had
complied with the court’s production order.

At trial, Agent Robinson testified about her November 2005
interview with Andrews. Robinson stated that Andrews initially
told her and Agent Holt that she had never borrowed or received

States v. Branham, 515 F.3d 1268, 1273 (D.C. Cir. 2008) (quoting
United States v. Dykes, 406 F.3d 717, 721 (D.C. Cir. 2005)). In this
case, the government’s evidence showed that the signatures on the
designation-of-beneficiary form were forgeries, that the physical
location of Andrews’ workstation gave her access to the DVAMC’s
personnel files, that the first check Turner wrote from the fraudulently-
obtained life insurance disbursement was to Andrews for $1,000, and
that Andrews lied to the OPM agents when they asked whether she
had ever received money or loans from Turner. This evidence is
sufficient to survive our narrow standard of review.
2
The court also ordered the government to produce all documents
required by Federal Rule of Criminal Procedure 16 and all witness
statements subject to disclosure under the Jencks Act, 18 U.S.C. §
3500(b). The defendant does not assert a Rule 16 or Jencks Act
violation on appeal.
 6

more than $10 from Turner. Trial Tr. 651 (July 26, 2006).
When Robinson showed Andrews a copy of the $1,000 check,
Andrews changed her story, claiming that Turner had given her
the check so that she could prove to a car dealership that she had
a checking account. Id. When Robinson pointed out that a
check written from Turner’s beneficiary account would not
show that Andrews had a checking account, Andrews changed
her story again, claiming that she borrowed the money from
Turner in order to purchase a car. Id. at 653. According to
Robinson, Andrews also said that she had repaid Turner in
February 2001 and that her bank statements should reflect that
fact. Id. Robinson recounted that she checked Andrews’ bank
accounts and did not find such a payment, although there were
regular cash withdrawals. Id. at 654, 658. Finally, she testified
that documents showed Andrews purchased a car in March
2001, after the period in which she claimed she had repaid
Turner for the loan. Id. at 655.

On cross-examination, at the end of the trial day, defense
counsel asked Robinson whether her testimony was based on her
memory of the interview. Robinson answered that it was also
based on her interview report and on the handwritten notes that
she took during the interview. Id. at 678-79. Defense counsel
had not known of the notes’ existence prior to that point and,
upon making this discovery, asked to approach the bench. The
prosecutor asserted that the government had no obligation to
produce the notes because they were incorporated into
Robinson’s final report, but she conceded that she had not
actually seen them. The court instructed the government to
examine the notes overnight and to determine whether they
should be produced. Id. at 680. Andrews’ counsel opted to
continue his cross-examination of Robinson without the notes.
Id. After the cross-examination ended, the court adjourned trial
for the day.
 7

The following morning, the government advised the court
that, although it still believed it had no obligation to produce
Robinson’s handwritten notes, it had voluntarily done so “in an
abundance of caution.” Trial Tr. 717-18 (July 27, 2006). The
court then asked defense counsel whether there was “anything
in [the notes] that requires any further inquiry.” Id. at 718.
Counsel said that further cross-examination was unnecessary,
but he reserved the right to use the notes in the event that the
government re-called Robinson on rebuttal. Id. The
government did not re-call her, and defense counsel did not raise
the issue again.

B

In Brady v. Maryland, the Supreme Court held that the Due
Process Clause imposes upon the prosecution an obligation to
disclose “evidence favorable to an accused . . . where the
evidence is material either to guilt or to punishment, irrespective
of the good faith or bad faith of the prosecution.” 373 U.S. at
87. In Giglio v. United States and United States v. Bagley, the
Court held that “[i]mpeachment evidence, . . . as well as
exculpatory evidence, falls within the Brady rule.” Bagley, 473
U.S. 667, 676 (1985) (citing Giglio, 405 U.S. 150, 154 (1972)).
As we have noted, “courts have used the term ‘Brady violation’
to cover a multitude of prosecutorial sins involving breach of
‘the broad obligation to disclose exculpatory evidence,’ often
called ‘Brady material.’” In re Sealed Case, 185 F.3d 887, 892
(D.C. Cir. 1999) (quoting Strickler v. Greene, 527 U.S. 263, 281
(1999)). “These include both the failure to search for Brady
material and the failure to produce it.” Id.

In Strickler v. Greene, the Supreme Court explained that,
“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
 8

a different verdict.” 527 U.S. at 281. A “true Brady violation”
has three components: “The evidence at issue must be favorable
to the accused, either because it is exculpatory, or because it is
impeaching; that evidence must have been suppressed by the
State, either willfully or inadvertently; and prejudice must have
ensued.” Id. at 281-82. To satisfy the prejudice component, the
withheld evidence must be “material” -- that is, there must be “a
reasonable probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have been
different.” Id. at 280 (quoting Bagley, 473 U.S. at 682); see
Kyles v. Whitley, 514 U.S. 419, 433-34 (1995). If the
undisclosed evidence is material, a new trial is required. See
Kyles, 514 U.S. at 421-22.

Andrews argues that Robinson’s and Holt’s handwritten
notes are Brady or Giglio material because they do not contain
two of the four allegedly false statements that Robinson testified
Andrews made to her. The notes do reflect Andrews’ first
statement: that Turner had never given or loaned her anything
more than $10. After Robinson confronted Andrews with the
$1,000 check from Turner, Robinson testified that Andrews
made a second statement: “that she needed to show a car
dealership that she had a checking account and so she asked Mr.
Turner to write her the check.” Trial Tr. 651 (July 26, 2006).
Andrews maintains that this second statement is not included in
the notes. She concedes that the third statement recounted by
Robinson -- that Andrews said Turner loaned her the money so
that she could purchase a car -- is in the notes. But she points
out that the alleged fourth statement -- that she told Robinson
that “her bank statements in February of 2001 should reflect that
she paid Mr. Turner back” -- is not there. Id. at 653.

Andrews contends that the absence in the notes of a mention
of her alleged second statement “is a critical difference from
Robinson’s report and testimony because the second story is the
 9

most suspicious and was highlighted by the Government as
proof of Andrews’s guilt.” Appellant’s Br. 18 (citing Trial Tr.
901 (July 28, 2006)). She also regards the absence of any
reference to her alleged fourth statement as significant. Had the
notes been available to defense counsel before he began his
cross-examination, Andrews asserts, he could have successfully
impeached Robinson’s testimony and changed the outcome of
the trial.

Contrary to the government’s contention in the district
court, “[i]t seems too plain for argument that rough notes from
any witness interview could prove to be Brady material.”
United States v. Harrison, 524 F.2d 421, 427 (D.C. Cir. 1975).
As we have previously explained, the “possible importance of
the rough notes” for the purpose of providing leads or of
impeaching a witness for discrepancies between the notes and
the witness’ testimony “is not diminished in cases where” the
notes form the basis of a final report that the prosecution turns
over to the defense. Id. Nor is the prosecutor relieved of her
Brady obligation if the notes are kept by the agent and never
reviewed by the prosecutor. As the Court held in Kyles v.
Whitley, the Brady rule includes evidence “known only to police
investigators and not to the prosecutor.” 514 U.S. at 438.
“Hence, to comply with Brady, ‘the individual prosecutor has a
duty to learn of any favorable evidence known to others acting
on the government’s behalf in the case, including the police.’”
In re Sealed Case, 185 F.3d at 892 (quoting Kyles, 514 U.S. at
437).

The government’s first argument on appeal is considerably
stronger than the one it made in the district court. The
government asserts that the differences between the notes and
Robinson’s report and testimony are not sufficient to satisfy the
prejudice prong of the Strickler test. Parsing the words of
Robinson’s handwritten notes, the government contends that
 10

they can be construed as referring to Andrews’ second statement
as well as to her first and third. But even if that were not true,
the government maintains that the notes would not have
successfully impeached Robinson because she could easily have
explained that rough interview notes are by their nature
incomplete, and that the report -- completed on the same day as
the interview -- was an accurate recounting of what Andrews
had said. Moreover, the notes do reflect the first story recounted
by Agent Robinson -- that Andrews’ responded to the question
of whether Turner had ever given or loaned her anything by
stating that he had never given or loaned her anything greater
than $10. Nor is there any dispute that this story was a lie,
which Andrews did not withdraw until confronted with the
$1,000 check. All of this makes it hard for us to conclude that
there is “a reasonable probability that, had the [notes] been
disclosed to the defense, the result of the proceeding would have
been different.” In re Sealed Case, 185 F.3d at 892 (quoting
Bagley, 473 U.S. at 676).

The government’s second argument on appeal is even
stronger, and there is no doubt that it is dispositive. Even if the
difference between the notes and Robinson’s testimony were
material, the notes were in fact “disclosed to the defense.” Id.
It is true that the government did not provide them until late in
the day. But in such circumstances, where disclosure was made
but made late, “the defendant must show a reasonable
probability that an earlier disclosure would have changed the
trial’s result” and not just that the evidence was material. United
States v. Dean, 55 F.3d 640, 663 (D.C. Cir. 1995); see also
United States v. Wilson, 160 F.3d 732, 742 (D.C. Cir. 1998)
(“Appellants have the burden to show that ‘had the statements
been disclosed earlier, there is a probability sufficient to
undermine our confidence in the actual outcome that the jury
would have acquitted.’” (quoting United States v. Tarantino,
846 F.2d 1384, 1417 (D.C. Cir. 1988))). And as we have said
 11

before, “a new trial is rarely warranted based on a Brady claim
where the defendant[] obtained the information in time to make
use of it.” Wilson, 160 F.3d at 742.

Andrews contends that the government’s failure to produce
the notes “until the morning of the fourth day of trial
(immediately before the defense case was to begin) did not leave
defense counsel with enough time to use the material properly,
to build a responsive defense theory, or effectively impeach
Robinson, who would have to have been recalled.” Appellant’s
Br. 23.3 The notes, however, were hardly voluminous:
Robinson’s and Holt’s notes together comprised only six pages
of large, legible handwriting. See J.A. 143-48. Moreover,
defense counsel had two opportunities to request a continuance
to examine them. The first was during the bench conference
immediately following counsel’s discovery of the notes’
existence on the afternoon of Wednesday, July 26, 2006; the
second was on the morning of Thursday, July 27, 2006, after the
government had produced the notes to counsel and he had read
them. As in Wilson, a case in which we rejected a Brady claim

3
Andrews’ appellate brief also states that her trial counsel “could
not recall if the Government provided him with a copy of Agent Holt’s
notes at the same time as Robinson’s notes, or whether he received
them at a later time.” Appellant’s Br. 11 n.3. But because the burden
of showing a Brady violation -- including one caused by late
disclosure -- is on the defendant, the speculative possibility that the
Holt notes came later adds nothing to Andrews’ argument. Andrews
further maintains that, if her trial counsel had received the notes
earlier, he “could have called Holt as a witness and used his notes to
discredit Robinson’s testimony.” Id. at 23. Yet counsel declined two
opportunities to seek a continuance, during which he could have
received and evaluated the notes and then decided whether to call
Holt. We thus have no ground for finding that testimony by Holt --
whose notes were not materially different from Robinson’s -- would
have made a difference in the outcome of the trial.
 12

similarly based on tardy disclosure, Andrews’ counsel “did not
request a continuance in order to determine whether the
statements supported a viable alternative defense, nor request a
mistrial, nor even claim a Brady violation had occurred.” 160
F.3d at 741.

Andrews maintains that her counsel had little choice but to
decline the opportunity to delay the cross-examination on
Wednesday and use the notes on Thursday morning, as that
would have required recalling Robinson -- a strong prosecution
witness -- to the stand. But cross-examinations often run over
two days, and lawyers often save their best ammunition for their
last exchanges with a witness. Andrews has suggested no reason
why -- if the inconsistencies between the notes and Robinson’s
testimony were as powerful as she believes they were --
concluding the examination by confronting the witness on
Thursday morning would have been tactically disadvantageous.
Accordingly, because Andrews has failed to show that she did
not receive the notes “in time to make effective use” of them, we
reject her Brady challenge. Dean, 55 F.3d at 663 (internal
quotation marks omitted).

III

We next address Andrews’ sentencing challenge, which is
based on her contention that the district court referred to the
wrong edition of the Sentencing Guidelines Manual, in violation
of Guidelines § 1B1.11 and the Ex Post Facto Clause. Because
Andrews did not object to the court’s application of the 2006
Manual in the district court, we review her claim only for plain
error. United States v. Simpson, 430 F.3d 1177, 1183 (D.C. Cir.
2005).4 Under that standard: “‘[T]here must be (1) error, (2)

4
Andrews contends that she effectively raised this claim in the
district court by arguing, before trial began, that the indictment was
 13

that is plain, and (3) that affect[s] substantial rights. If all three
conditions are met, an appellate court may then exercise its
discretion to notice a forfeited error, but only if (4) the error
seriously affect[s] the fairness, integrity, or public reputation of
judicial proceedings.’” Id. (alterations in original) (quoting
Johnson v. United States, 520 U.S. 461, 467 (1997)).

The Sentencing Guidelines provide that courts should
generally “use the Guidelines Manual in effect on the date that
the defendant is sentenced.” U.S. Sentencing Guidelines
Manual § 1B1.11(a) (2006) [hereinafter U.S.S.G.]. Andrews
was sentenced on February 9, 2007, when the 2006 Manual was
in effect. The Guidelines also provide, however, that “[i]f the
court determines that use of the Guidelines Manual in effect on
the date that the defendant is sentenced would violate the ex post
facto clause of the United States Constitution, the court shall use
the Guidelines Manual in effect on the date that the offense of
conviction was committed.” Id. § 1B1.11(b)(1). We have
previously held that, when use of a later Manual would
“adversely affect” a defendant’s sentence, it “may not be applied
retroactively without violating the ex post facto clause.” United
States v. Lam Kwong-Wah, 924 F.2d 298, 304 (D.C. Cir. 1991);
see United States v. Gaviria, 116 F.3d 1498, 1514 (D.C. Cir.
1997). Hence, as recently as 2003 we held that “courts must
apply the Guidelines in effect on the date the offense was
committed if using the Guidelines in effect at the time of

barred by the statute of limitations because the alleged conspiracy
ended no later than February 2001. This was insufficient to preserve
the objection she has made on appeal, however, because she never
suggested, at sentencing or otherwise, that the court should apply the
2000 rather than 2006 Guidelines Manual. See In re Sealed Case, 349
F.3d 685, 690-91 (D.C. Cir. 2003); United States v. Smith, 232 F.3d
236, 238 (D.C. Cir. 2000).
 14

sentencing would yield a longer sentence.” United States v.
Bolla, 346 F.3d 1148, 1151 n.1 (D.C. Cir. 2003).

Andrews contends that the charged conspiracy ended in
February 2001 and notes that the Guidelines Manual in effect in
that month was the 2000 Manual. The district court’s use of the
2006 Manual was error, she argues, because it yielded a longer
sentence than that indicated by the 2000 Manual. The 2006
Guidelines Manual specifies a base offense level of 14 for
Andrews’ conspiracy and bribery convictions. U.S.S.G. §
2C1.1(a)(1) (2006). Given Andrews’ criminal history category
of I, that offense level corresponds to a sentence of 15 to 21
months. Id. § 5A. In contrast, the 2000 Guidelines Manual
specifies a base offense level of 10 for Andrews’ offenses of
conviction, U.S.S.G. § 2C1.1(a)(1) (2000), which, given her
criminal history category, corresponds to a sentence of only 6 to
12 months, id. § 5A.

The government argues that, even if the district court erred
in applying the 2006 Manual, that error was not plain for two
reasons. We agree.

First, in its 2005 opinion in United States v. Booker, the
Supreme Court held that the Sentencing Guidelines must now be
regarded as advisory rather than mandatory. 543 U.S. at 245.
This circuit has not yet determined whether, after Booker,
application of a later (than the date-of-offense) Guidelines
Manual that yields a higher sentence continues to raise an ex
post facto problem. Nor has the Supreme Court. The Seventh
Circuit has concluded that use of a later Manual no longer
presents such a problem, holding that “the ex post facto clause
should apply only to laws and regulations that bind rather than
advise.” United States v. Demaree, 459 F.3d 791, 795 (7th Cir.
2006). Some other courts have indicated their agreement. See
United States v. Mathis, 239 F. App’x 513, 517 n.2 (11th Cir.
 15

2007); United States v. Barton, 455 F.3d 649, 655 n.4 (6th Cir.
2006); see also United States v. Rodarte-Vasquez, 488 F.3d 316,
325 (5th Cir. 2007) (Jones, C.J., concurring). The Eighth
Circuit, however, disagrees. See United States v. Carter, 490
F.3d 641, 643 (8th Cir. 2007). And several other circuits also
appear to regard the ex post facto analysis as unchanged,
continuing to apply Guidelines § 1B1.11(b)(1) in the same way
they did before Booker. See United States v. Gilman, 478 F.3d
440, 449 (1st Cir. 2007); United States v. Wood, 486 F.3d 781,
791 (3d Cir. 2007); United States v. Austin, 479 F.3d 363, 367
(5th Cir. 2007); United States v. Stevens, 462 F.3d 1169, 1170
(9th Cir. 2006).

We do not need to decide which side of that circuit split we
would join in order to resolve this case. “Even assuming the
district court erred, . . . absent an opinion by this circuit or the
Supreme Court on the issue in dispute, there is no plain error
unless [the] district court failed to follow [an] ‘absolutely clear’
legal norm . . . .” United States v. Vizcaino, 202 F.3d 345, 348
(D.C. Cir. 2000) (quoting United States v. Merlos, 8 F.3d 48, 51
(D.C. Cir. 1993)). And there is no such absolutely clear norm
here.

Second, it is also not plain that Andrews’ conspiracy ended
in February 2001 -- when Andrews received the $1,000 payment
from Turner -- rather than in 2005 -- when Andrews lied to
OPM investigators to conceal the plot. Andrews’ argument in
favor of the former date is based on Grunewald v. United States,
which held that “acts of concealment done after the[] central
objectives have been attained, for the purpose only of covering
up after the crime,” are not part of the principal conspiracy. 353
U.S. 391, 405 (1957); see Pyramid Sec., Ltd. v. IB Resolution,
Inc., 924 F.2d 1114, 1117-18 (D.C. Cir. 1991). This, Andrews
argues, means that the conspiracy ended when she says it did:
with her receipt of the $1,000. But there is an exception to the
 16

Grunewald rule. As the Supreme Court explained, “a vital
distinction must be made between acts of concealment done in
furtherance of the main criminal objectives of the conspiracy,”
which extend the statute of limitations, “and acts of concealment
done after these central objectives have been attained,” which do
not. Grunewald, 353 U.S. at 405. When “‘[t]he successful
accomplishment of the crime necessitates concealment,’ acts of
concealment are properly considered to be within the scope of
the original conspiracy.” United States v. Gleason, 766 F.2d
1239, 1242 (8th Cir. 1985) (quoting Grunewald, 353 U.S. at
405). In Forman v. United States, the Court applied this
exception to hold that a conspiracy to evade income taxes
extended to false statements made to IRS agents as late as 1953,
notwithstanding that the last fraudulent return was filed in 1946,
because “concealment of the ‘holdout’ income must continue if
the evasion is to succeed. It must continue until action thereon
is barred and the evasion permanently effected.” 361 U.S. 416,
424 (1960), overruled on other grounds by Burks v. United
States, 437 U.S. 1 (1978).

The government asserts that Forman, not Grunewald,
governs here. It argues that, after the insurance proceeds were
initially distributed pursuant to the designation-of-beneficiary
form, OPM had a continuing obligation to ensure that the money
had been given to the correct beneficiary. Thus, the
conspirators’ “object to defraud continued throughout the course
of the regulatory inquiry conducted by OPM to determine who
was the proper lawful beneficiary for those funds,” an effort that
“remained on-going when Andrews was interviewed in
November 2005.” Gov’t Br. 33. This, the government argues,
is consistent with the language of the indictment, which charged
a conspiracy from December 8, 2000, through January 10, 2006,
to “defraud the United States by impairing, impeding, and
defeating the lawful functions and duties of the OPM and the
FEGLI program,” Indictment at 3 (J.A. 22), and which listed
 17

“conceal[ing] the conspiracy itself and the acts committed in
furtherance thereof” among the objects of the conspiracy, id. at
5 (J.A. 24).

Once again, we need not decide which party’s argument is
correct. On its face, the indictment alleged that the conspiracy
continued into 2006, and the question of whether Grunewald or
Forman applies to acts of concealment in a particular case is not
without difficulty. See, e.g., United States v. Rabinowitz, 56
F.3d 932, 933-34 (8th Cir. 1995) (holding that a conspiracy to
defraud a client by using a wire transfer included the defendant’s
subsequent lies to a revenue agent to conceal the nature of those
transfers); United States v. Masters, 924 F.2d 1362, 1368 (7th
Cir. 1991) (holding that a conspiracy to commit murder
continued as long as the defendant acted to conceal it where the
conspirators, including two police officers, “intended from the
first to exert strenuous efforts to prevent discovery of the crime
and of their involvement in it”); Gleason, 766 F.2d at 1242
(noting “agree[ment] with other courts that have held that a
conspiracy covered by 18 U.S.C. § 371, such as the one charged
here [to obstruct the collection of income taxes], necessarily
contemplates acts of concealment to accomplish its objectives”);
United States v. Diez, 515 F.2d 892, 897-98 (5th Cir. 1975)
(holding that, in “light of the substantial possibility” that the
fraudulent tax returns filed by the defendants “would be audited
and investigated, the filing of the returns did not fully
accomplish the purpose of the main conspiracy”). Given this
uncertainty, together with the uncertainty that Booker creates for
the ex post facto analysis, we cannot conclude that any error in
the application of the 2006 Guidelines Manual was plain.
 18

IV

For the foregoing reasons, the judgment of the district court
is

Affirmed.
 ROGERS, Circuit Judge, concurring. Although I agree that
the judgment of conviction must be affirmed, I would hold that
Andrews has failed to show plain error with respect to her Brady
challenge and, without joining unnecessary discussion of the
termination date of the conspiracy, with respect to the district
court’s application of the 2006 edition of the Sentencing
Guidelines.

I.

I agree that the notes at issue constituted Brady material,
Op. at 9, which the prosecutor was required to turn over to
defense counsel prior to trial pursuant to the district court’s
order and long-established precedent, see, e.g., United States v.
Harrison, 524 F.2d 421, 427 (D.C. Cir. 1975). The failure to do
so is particularly troubling because the prosecutor knew of the
notes prior to Andrews’ defense counsel’s accidental discovery
of their existence while cross-examining Agent Robinson at
trial. Trial Tr. 679-80 (July 26, 2006). I do not agree, however,
that production of the notes was nonetheless timely. Op. at 12.
Brady requires early enough disclosure that a defendant can
make meaningful use of material. Cf. United States v. Wilson,
160 F.3d 732, 742 (D.C. Cir. 1998); United States v. Dean, 55
F.3d 640, 663 (D.C. Cir. 1995). Contrary to the court’s view, it
seems highly implausible to suggest that defense counsel could
have restructured his defense to save the best for last, Op. at 12,
or more generally that a defense trial strategy, any more than a
prosecution trial strategy, can be effectively reworked four days
into trial, at the close of the government’s case, cf. Op. at 11-12.
The prosecution’s tardy disclosure forced Andrews’ counsel to
choose between recalling a strong government witness after a
mid-trial continuance and risk cementing her testimony more
firmly in the mind of the jury, or not impeaching the witness at
all. Whatever the merits of defense counsel’s effort to navigate
a middle course, stating that the defense would not recall Agent
Robinson as its witness but ensuring that the notes would be
 2

available for impeachment if the government did, Trial Tr. 718
(July 27, 2006), it was a strategic decision forced by the
prosecutor’s delay. So understood, the defense case was
compromised, no matter the “tactics” Andrews’ counsel
deployed following his receipt of the notes.1

The significance of the prosecutor’s delay in producing the
notes is manifest. Agent Robinson’s testimony was an
important part of the government’s case, which was not
overwhelming to begin with, because her description of the
interview with Andrews tied together a set of otherwise
circumstantial facts. Recognizing this, the prosecutor focused
on the interview during closing argument, telling the jury that
Andrews attempted to “conceal . . . her involvement . . . by
coming up [with] one preposterous story after another,” Trial Tr.
900 (July 28, 2006), using Agent Robinson’s testimony to color
and frame facts that could otherwise be excused as a series of
innocent coincidences. While it is true that Agent Robinson’s
notes corroborate some of her damaging testimony, see Op. at
10, they omit any mention of two of the “preposterous stor[ies]”
relied on by the prosecutor at closing, specifically that Andrews
had stated she wanted to use the check to prove possession of a
checking account; and that Andrews claimed to have repaid
Turner in February 2001.2 Although alerting the jury to these
omissions would not constitute a knock-out blow, it is at least

1
Exactly how Agent Robinson might have explained the
omissions, and how the jury would have assessed any such
explanation, are hypotheticals to which the government responds with
mere speculation. See Op. at 9-10.
2
Although the government suggests the notes can be
construed as referring to using a check to prove possession of a
checking account, Op. at 9-10; Resp. Br. at 17, one searches the notes
in vain for such a reference.
 3

plausible that the jurors’ confidence in Agent Robinson’s
memory and veracity would have been undermined. Under
these circumstances, earlier disclosure of the notes could have
allowed a different, more effective defense strategy and their
tardy handover “‘undermine[s] confidence in the outcome’” of
the trial, Dean, 55 F.3d at 663 (quoting United States v. Bagley,
473 U.S. 667, 682 (1985)), and thus constitutes a Brady
violation.

Unfortunately for Andrews, her burden is greater than
simply showing a “reasonable probability” of a different verdict,
Strickler v. Greene, 527 U.S. 263, 280 (1999); because no
objection to the delayed handover was made in the district court,
Op. at 12, she must now show plain error, see United States v.
Johnson, 437 F.3d 69, 74 (D.C. Cir. 2006), which she cannot do.
In particular, Andrews cannot show that the Brady violation
affected her “substantial rights.” Id. Under this part of the plain
error test, “the burden on prejudice is reversed, requiring the
defendant to show the error’s likely effect on the verdict.”
United States v. Wilson, 240 F.3d 39, 45 (D.C. Cir. 2001), citing
United States v. Olano, 507 U.S. 725, 734 (1993). The
government presented significant circumstantial evidence tying
Andrews to the charged crimes. This included her ample
opportunities to access human resources files; her possession of
the knowledge necessary to insert a forged FEGLI form in
Mayo’s file; Turner’s payment of $1,000 to her in the form of a
check soon after he received his share of Mayo’s life insurance;
and the unchanging nature of her bank withdrawal habits in the
month she claimed to have repaid Turner. See Trial Tr. at 346-
51; 647-48; 650-51; 656-58 (July 25-26, 2006). To conclude
that the verdict would likely have been different, the court must
assume that in addition to the circumstantial evidence, Agent
Robinson’s testimony was necessary to the guilty verdict and
that impeachment of her on the basis of her notes would have
been sufficient to alter the verdict. While there is a reasonable
 4

probability that timely disclosure of the notes could have led to
a different verdict, the impact of such disclosure is too uncertain
for Andrews to demonstrate that the verdict would likely have
been different.3

II.

With regards the ex post facto challenge to the sentence, I
would rely only upon the first basis the court identifies for
holding that the error was not plain, Op. at 14-15, and do not
join the dictum discussing the application of Grunewald v.
United States, 353 U.S. 391 (1957), and Foreman v. United
States, 361 U.S. 416 (1960), Op. at 15-17. Because the error by
the district court in using the 2006 edition of the Guidelines was
neither “‘clear’” nor “‘obvious,’” United States v. Sumlin, 271
F.3d 274, 281 (D.C. Cir. 2001) (quoting United States v. Olano,
507 U.S. 725, 734 (1993)),4 the court need not opine that the
date that the conspiracy terminated is legally “uncertain[],” Op.
at 17.

3
For the reasons stated by the court, Op. 4 n.1, there was
sufficient evidence to support Andrews’ convictions for conspiracy
and bribery.
4
Because Andrews did not make this objection in the district
court, our review is limited to plain error. See Johnson, 437 F.3d at
74.