Jermyl Moody v. United States

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 10-CF-181

JERMYL MOODY, APPELLANT,

V.

UNITED STATES, APPELLEE.

Appeal from the Superior Court of the
District of Columbia
(CF2-393-08)

(Hon. Lynn Leibovitz, Trial Judge)

(Argued June 18, 2013 Decided December 13, 2013)

Thomas D. Engle, with whom Sharon L. Burka was on the brief, for
appellant.

Kristina L. Ament, Assistant United States Attorney, with whom Ronald C.
Machen Jr., United States Attorney, and Elizabeth Trosman, Chrisellen R. Kolb,
and Heather Carlton, Assistant United States Attorneys, were on the brief, for
appellee.

Before FISHER and OBERLY, Associate Judges, and RUIZ, Senior Judge.

Opinion for the court by Associate Judge FISHER.

Dissenting opinion by Senior Judge RUIZ at page 23.
 2

FISHER, Associate Judge: Appellant Jermyl Moody was convicted by a jury

of two counts of possession of a controlled substance (ecstasy and marijuana),1

unlawful possession of a firearm by a convicted felon,2 carrying a pistol without a

license (CPWL),3 unlawful possession of ammunition,4 and possession of an

unregistered firearm.5 Two months later, appellant filed a motion for a new trial

based on newly discovered evidence. Appellant had located a potentially

exculpatory witness who claimed a Fifth Amendment privilege, and he requested

that the trial court apply the procedure endorsed by this court in Carter v. United

States, 684 A.2d 331 (D.C. 1996) (en banc), in considering his motion for a new

trial. The court held evidentiary hearings on October 23 and December 11, 2009,

but the witness proffered by the defense did not testify. After the trial judge denied

the new trial motion, this appeal followed. Appellant‘s counsel confirmed at oral

argument that his client is not seeking a new trial on the drug charges.

1
D.C. Code § 48-904.01 (d) (2001 & 2007 Supp.).
2
D.C. Code § 22-4503 (a)(2) (2001 & 2007 Supp.).
3
D.C. Code § 22-4504 (a) (2001).
4
D.C. Code § 7-2506.01 (2001).
5
D.C. Code § 7-2502.01 (a) (2001).
 3

We conclude that the trial court did not abuse its discretion in denying the

motion for a new trial. The court carefully applied Carter, declining to override

the government‘s decision that it would not grant the witness testimonial

immunity. This was not an abuse of discretion. We further conclude that the trial

court properly denied the motion on the ground that the proffered testimony would

not likely produce an acquittal at a new trial.

I. Facts

On January 5, 2008, Metropolitan Police Department (MPD) Officers Amy

Oliva and Mark Nassar conducted a traffic stop of a black Cadillac CTS with

heavily tinted windows. Upon request, appellant, the driver, lowered all four

windows. The officers saw a female passenger in the front passenger seat and

noticed ―a strong odor . . . of an alcoholic beverage.‖ Officer Oliva found an

opened bottle of vodka and two plastic cups, and appellant and the female

passenger were placed under arrest. During a search of the car incident to arrest,

the officers found several items that were later introduced at trial, including a black

briefcase on the rear floorboard. Appellant admitted that the briefcase was his, but
 4

he declined to open it, asserting that it contained nude photographs of his wife.

(No such photographs were found.)6

The briefcase contained a loaded Sig Sauer semiautomatic handgun,

approximately fourteen-hundred pills, marijuana, some loose powder, and a pipe

used to smoke marijuana. Police also found a bullet on the driver‘s side floorboard

between the seat and the transmission hump, a single bag of marijuana in the trunk

of the car, and a red Ziploc bag in appellant‘s left front pants pocket containing

twelve pills. A government expert testified that the bullet found on the driver‘s

side floorboard was not ―any different‖ in appearance than the bullets recovered

from inside the magazine and chamber of the handgun found in the briefcase. The

government‘s chemist testified that although a few of the pills in the red Ziploc bag

in appellant‘s pants pocket and in the briefcase contained ecstasy, most were

―fake‖ ecstasy.

6
There is no support for the dissent‘s suggestion that Judge Leibovitz did
not give much weight to police testimony that appellant admitted, both directly and
inferentially, that the briefcase was his. One officer testified that appellant stated
the briefcase was his. Two officers testified that he declined to open the briefcase,
claiming it contained nude photographs of his wife. Neither officer had
memorialized these statements, but such shortcomings in documentation are far
from uncommon and would not likely be thought to undermine the credibility of
the officers.
 5

Thus, in brief summary, appellant admitted the briefcase was his. A bullet

found on the driver‘s side floorboard was not ―any different‖ than the bullets found

in the handgun inside the briefcase. The Ziploc bag in appellant‘s pocket

contained green and yellow ecstasy pills and some fake ecstasy pills, and the

briefcase contained some green and yellow ecstasy pills and hundreds of fake

ecstasy pills. There was marijuana in the briefcase and in the trunk of appellant‘s

car.

At trial, the defense called the passenger, Nicole Smith. Smith testified that

she did not see the briefcase when she entered the car, and that another passenger,

who entered the car at approximately the same time as Smith, had sat in the back

seat of the car and exited the vehicle at the Metro station off of 5th and K Streets

just before they were pulled over by the officers. The defense also played portions

of recorded phone calls made while appellant was in jail in which he stated that he

dropped ―Leroy‖ off at the Metro, and ―that Leroy left his stuff in the car.‖ The

defense did not call Leroy as a witness or seek a continuance to locate him. At the

conclusion of the trial, appellant was found guilty of all charges.

II. The Rule 33 Motion
 6

In his motion for a new trial, appellant announced that he had located the

backseat passenger and wanted to present him at a new trial as an exculpating

witness. Appellant attached a handwritten statement signed by Leroy Odom in

which Odom admits to leaving in appellant‘s car a briefcase that contained a

handgun and over 1500 pills. The statement was not notarized, but it was signed

by Odom ―under the penalty of perjury‖ and witnessed by James Glenn, Odom‘s

brother. At a hearing on the new trial motion, appellant, his friend Gregory

Daniels, and Odom‘s brother, James Glenn, each testified that they had spent a

significant amount of time searching for Odom before appellant‘s trial, but that

they had been unable to find him. Odom‘s counsel informed the court that Odom

would not testify at a new trial (or at the motion hearing) unless the government

granted him immunity, and both Odom‘s counsel and appellant‘s counsel asked the

court to follow the procedure this court set out in Carter.

At the trial court‘s request, the government debriefed Odom. Odom‘s

counsel was present at the debriefing, which lasted more than two hours. The

prosecutor announced at a subsequent hearing that the government would not

provide immunity to Odom to facilitate his testimony at a Rule 33 hearing because

she believed ―that by putting this witness on the stand [the government] would be

sponsoring perjury.‖ The prosecutor and Odom‘s counsel provided oral
 7

descriptions of Odom‘s statements at the debriefing, and the trial court gave

defense counsel an opportunity to address the issue of immunity. Counsel argued

that without the testimony of Odom, he would not be able to ―put on the evidence

that [would] allow [appellant] to get a new trial.‖

The prosecutor gave an extensive proffer of the debriefing with Mr. Odom,

only part of which we will summarize here. For long periods of time, Odom was

in a ―crack haze‖ and lived on the streets. Although he claimed to have lived with

his wife for a couple of months in 2008, ―[h]e couldn‘t remember what the time

period was.‖ Odom said he sometimes lived with family, but he couldn‘t provide

details. Suspiciously, however, he claimed, in the words of the prosecutor, to

remember the night of appellant‘s arrest ―in startling detail.‖ On the other hand,

―[h]e forgot his Burberry coat in the trunk [of Mr. Moody‘s car] because he was so

drunk he couldn‘t remember.‖ Moreover, Odom couldn‘t remember anything else

being in the briefcase apart from fake ecstasy pills and the pistol. He claimed to

have been dropped off at the Union Station Metro stop, but the testimony at trial

indicated he was dropped at the New York Avenue Metro Station. He could not

recall the brand of pistol in the briefcase, and he could not (or would not) give

details about where he purchased the weapon. He seemed to be claiming that he
 8

had been in a drug treatment facility at the time of trial, but records subpoenaed by

the government showed that he entered after the trial had ended.

The trial court ruled that the Sixth Amendment right to compel the

attendance of witnesses and present a defense at trial is inapplicable at a motion

hearing, and thus Carter did not apply in the context of a new trial motion.

Nonetheless, assuming that Carter did apply, the trial court found that it was

reasonable for the government to decline to grant immunity to Odom.

The court determined that there was so much ―internal incredibility and

inconsistency‖ in Odom‘s statements at the debriefing, that the government could

―reasonably decline to immunize in these circumstances.‖ The court pointed to

―all of the contradictions internally‖ of Odom‘s testimony; indicated that Odom

―would be impeached with seven impeachable convictions‖; and noted ―the timing

of his having come forward, many months after a trial that he knew was taking

place when it was taking place, and as to charges that he knew the defendant was

facing but didn‘t come forward . . . .‖

The court particularly disbelieved Odom‘s claim that the gun was his. Judge

Leibovitz referred to the testimony of Gregory Daniels, who encountered Odom
 9

shortly after Moody‘s arrest and told him ―if the briefcase [is] yours, you need to

take your charge. And that‘s when [Odom] told me that, well, tell [Moody] that he

shouldn‘t be worried because . . . the drugs weren‘t real.‖ As the court explained,

―Odom said don‘t worry about it because what‘s in there wasn‘t real. He said

absolutely nothing about the weapon.‖ ―[T]here was no mention of a gun until [the

court] received . . . the affidavit written by [Moody‘s counsel] and signed by the

witness, in which he says [that] in the briefcase were a gun and over 1500 pills.

The gun did not belong to Mr. Moody.‖ The court concluded that Mr. Odom

―would not be credible in any respect on an admission that he put that gun in that

bag.‖

The court also noted that ―there were many other facts that [Odom] just

wasn‘t remembering [at the proffer] because he claimed he was in [a] crack haze.‖

―And so by his own proffer, he would be testifying at trial that he was in such a

crack haze, generally speaking in the weeks prior to the incident at issue here.‖

―And on the night of the incident [he] was so drunk on top of that that by definition

his credibility as to anything he would testify about that night would be hugely

impaired.‖ According to the court, ―there‘s more than a good chance here that Mr.

Odom is lying about having put the gun in the bag, and that that‘s why his

recollection of the details of the gun . . . are very imprecise.‖ Thus, the court
 10

concluded that no sanction against the government for refusing to immunize Odom

was warranted.

Having determined that it would not force the government to grant use

immunity to Odom, the court then considered appellant‘s motion for a new trial.

First, the court determined ―that the evidence isn‘t properly newly discovered

evidence‖ as ―it was certainly known to the defendant at trial.‖ ―The entire trial

was about Leroy Odom and this was his briefcase . . . . And so the fact is that the

evidence is not newly discovered, the body is newly discovered.‖ The court also

found that ―there was no failure of diligence on the part of counsel in attempting to

procure and subpoena [Odom]‖; in fact, the defense had ―shown extraordinary

diligence in the attempt to procure . . . the witness‘ presence . . . .‖

Noting that appellant never requested a continuance to locate a witness he

knew to exist, the court commented that it was either ―a very wise strategic

decision that Mr. Odom‘s testimony wouldn‘t add that much to the trial and it was

better not to have him here,‖ or a ―determination that all the possible efforts to find

[Odom] had been made and he wasn‘t gonna be found.‖ The court added,

however, that even if it had been presented before trial with ―everything that is
 11

currently in the record,‖ it would not have granted a continuance because ―further

efforts to find [Odom] would have been futile.‖

With respect to the substance of the proposed testimony, the court found that

the evidence was not cumulative or merely impeaching and that, if believed,

Odom‘s testimony would be material and exculpatory, and ―would result in an

acquittal.‖ However, ―[t]he question is, is it credible?‖ The court determined that

appellant ―utterly fail[ed]‖ to prove ―that the testimony as proffered would have

been of such a nature that in a trial it would probably produce an acquittal.‖ The

court recognized that it lacked ―an opportunity to assess the witness‘ demeanor,‖

but stated that the government and Odom‘s counsel had proffered ―what the

witness‘ demeanor, [and] recollections would be like . . . .‖ ―[A]ct[ing] as a 13th

juror,‖ the court found ―that the proffered testimony would be highly incredible,‖

and denied appellant‘s motion for a new trial on that basis.

III. Carter Applied

In Carter, this court addressed the tension that sometimes arises between

two fundamental rights – ―the accused‘s Sixth Amendment right of compulsory

process to obtain witnesses in aid of a defense, and a witness‘ Fifth Amendment
 12

right against self-incrimination.‖ 684 A.2d at 334-35. We recognized that, when

there is a direct clash between these rights, the Fifth Amendment privilege

prevails. Id. at 336, 338. We also agreed ―with the overwhelming number of

courts . . . that have rejected the concept of judicially imposed immunity.‖ Id. at

338. That means of resolving a conflict would violate the separation of powers

doctrine. Id. at 339.

We ultimately favored a ―carrot-and-stick approach‖ which, in ―an

appropriate factual situation . . . leaves the defense witness immunity decision to

the executive branch but reserves power in the judiciary to subject the government

to certain choices of action.‖ Id. at 341 (internal quotation marks omitted). One

example of when corrective action by the judiciary would be required is ―when the

government has engaged in discriminatory use of immunity to gain a tactical

advantage or, through its own overreaching, has forced the witness to invoke the

fifth amendment.‖ Id. at 341 (internal quotation marks omitted). There was no

such prosecutorial misconduct in Carter, and there is none here.

―With this background,‖ Carter turned ―to the more difficult issue

presented . . . where there is no prosecutorial misconduct but where the same Fifth

Amendment due process and Sixth Amendment fair trial issues are presented.‖ Id.
 13

at 341-42. We outlined a process trial courts should follow in evaluating and

weighing the competing claims:

If immunity of the crucial defense witness is . . . sought,
the defendant must first establish to the trial court‘s
satisfaction that the proposed testimony is (a) material,
(b) clearly exculpatory, (c) non-cumulative, and (d)
unobtainable from any other source.[7]. . . If, on the
initial showing, the trial judge concludes preliminarily
that the process should continue, the next step might be
to institute a debriefing process of the proposed defense
witness by the prosecution in order to determine whether
the government will accede to a grant of use immunity to
the witness . . . . If after a debriefing procedure and
investigation the government were to decline to grant
―use‖ immunity to the proposed defense witness, . . . it
would be for the trial court to explore the basis of the
government‘s refusal and decide whether there will be a
distortion of the fact-finding process and the indictment
should therefore be dismissed for a denial of due process
and Sixth Amendment rights to the defendant . . . .

Id. at 344-45. Typically, the defendant is ―required to raise this issue pre-trial, else

it might seriously derail the trial if raised after it commences,‖ id. at 345; the

pretrial procedural requirement may, however, be altered ―for good cause.‖ Id.

7
We noted in Carter that ―[t]hese are stringent standards and deliberately so
because of the intrusion into what would otherwise be the sole prerogative of the
executive branch.‖ 684 A.2d at 341.
 14

If, after a sufficient debriefing, the government can provide ―no justifiable

reason (a tactical advantage would not be sufficient) for not granting ‗use‘

immunity,‖ further evaluation is required. Id. at 342; see also id. at 343 (court may

consider imposing sanction if ―the government does not submit to the court a

reasonable basis for not affording use immunity‖). The imposition of a sanction

may be appropriate if the government‘s decision ―would, unless altered, result in a

distortion of the fact-finding process.‖ Id. at 342. However, the trial court should

defer to ―sound‖ reasons, such as ―considerations of potential future prosecution,

an ongoing investigation, clear indications of potential perjury, or the excusable

lack of information during the debriefing to make an informed immunity

decision . . . .‖ Id. ―[T]here may be a number of sound reasons for declining to

cloak the proffered defense witness with governmental immunity.‖ Id. at 342 n.10.

The first issue presented by appellant concerns whether Carter applies to a

Rule 33 hearing. Appellant argues that the trial court erred as a matter of law in its

determination that Carter‘s holding is limited to trial proceedings because it is

based on the Sixth Amendment. This is not a simple question, but we need not

reach it because the trial court made an alternative ruling applying Carter to these

circumstances.
 15

Appellant does not dispute that Odom validly asserted a Fifth Amendment

privilege, and the government does not question that the proposed testimony, if

believed, would be material, exculpatory, non-cumulative, and unavailable from

any other source. See Carter, 684 A.2d at 344. The government debriefed Odom

at the trial court‘s request and decided not to provide immunity because it believed

that putting him on the witness stand ―would be sponsoring perjury.‖ As Carter

required,8 the trial court did not accept that decision uncritically. Indeed, the court

commented that the government‘s subjective disbelief of Odom was not enough.

―I don‘t think that that alone would be enough to sustain decision-making under

Carter.‖ The court therefore listened to a lengthy summary of the debriefing from

the prosecutor and Odom‘s counsel and to a lengthy statement of the prosecutor‘s

reasons for declining to grant immunity. It then found, and reiterated, that the

government‘s decision was ―highly reasonable,‖ not ―unreasonable in any respect,‖

and ―entirely reasonable.‖ After giving a lengthy summary of its rationale, the

court concluded ―that the government is entirely reasonable in its decision not to

immunize Mr. Odom and that no sanctions should be imposed under Carter.‖

8
We said in Carter that if, after a debriefing, the government declines to
grant immunity to a witness who possesses material, exculpatory, non-cumulative
evidence, unobtainable from any other source, ―it would be for the trial court to
explore the basis of the government‘s refusal and decide whether there will be a
distortion of the fact-finding process‖ and a sanction should be imposed. 684 A.2d
at 345.
 16

We see no basis for overturning this aspect of the trial court‘s decision.

Reiterating that ―[t]he grant of immunity . . . is an executive not a judicial

function[,]‖ Carter itself emphasizes the importance of respect for the separation

of powers. 684 A.2d at 345 (―It should be apparent from this opinion that due to

the separation of powers, this process has strict confines, and deliberately so.‖).

―On this particular issue of defense witness immunity, the trial court should

consider only whether, after the issue has been explored, the government is abusing

its discretion and distorting the judicial fact-finding process in refusing to

immunize a proffered crucial defense witness, thereby preventing a fair trial for the

defendant.‖ Id. at 343. See also id. at 344-45.9 Here, after careful inquiry, the trial

judge concluded that the government was acting reasonably – in other words, that

it was not abusing its authority to confer use immunity.

Our review is similarly limited. We review the trial court‘s application of

Carter for abuse of discretion. See Butler v. United States, 890 A.2d 181, 189-90

(D.C. 2006) (decision not to sanction government under Carter). Based on the

record summarized above, there was no abuse of discretion here.

9
It is worth noting that appellant makes no complaint about the way his trial
was conducted. As we mentioned above, he did not seek a continuance for the
purpose of locating Mr. Odom.
 17

IV. The New Trial Motion

It is well settled that to obtain a new trial based on newly discovered

evidence,

(1) the evidence must have been discovered since the
trial; (2) the party seeking the new trial must show
diligence in the attempt to procure the newly discovered
evidence; (3) the evidence relied on must not be merely
cumulative or impeaching; (4) it must be material to the
issues involved; and (5) of such nature that in a new trial
it would probably produce an acquittal.

Prophet v. United States, 707 A.2d 775, 778 (D.C. 1998). The defendant must

satisfy each of these requirements. United States v. Lafayette, 983 F.2d 1102, 1105

(D.C. Cir. 1993). ―We review a decision to deny a new trial only for abuse of

discretion.‖ Herbin v. United States, 683 A.2d 437, 442 (D.C. 1996). ―Thus,

where the denial is reasonable and supported by the record, we will not reverse.‖

Id.

In this case the government does not challenge the trial court‘s findings that

appellant satisfied prongs (2), (3), and (4). The government contends — and the
 18

trial court concurred — that ―[w]here the substance of a non-testifying trial

witness‘s testimony was known to the defense at trial, that witness‘s offer to testify

does not qualify as newly discovered evidence.‖ We do not decide this question

because there is an independent basis for affirming — the trial court properly

decided that the proffered evidence was not of such a nature that in a new trial it

would probably produce an acquittal.

Having determined that Odom would not be testifying at the hearing, the

trial court turned to analyzing the motion appellant had filed. ―Obviously I can‘t

determine credibility based on his testimony but I can determine credibility based

on the proffer.‖ As Judge Leibovitz, who had presided over the trial, recognized,

she was now, in effect, sitting as a thirteenth juror. See Lyons v. United States, 833

A.2d 481, 487 (D.C. 2003) (In ruling on a motion for a new trial, ―the trial judge

who heard the trial evidence, sits as the ‗thirteenth juror‘ to determine whether a

fair trial requires that the [additional evidence] be made available to the jury.‖

(some quotation marks omitted)).

It is not always necessary to hear from the witness in order to fulfill this role.

Indeed, we have recognized as a general rule ―that a trial court is not required to

hold a hearing before ruling on such a motion.‖ Prophet, 707 A.2d at 779. And
 19

here, the trial court had determined after careful inquiry that Odom would not

testify voluntarily and that the government had reasonably declined to confer use

immunity upon him. It therefore focused on the written statement signed by Odom

and upon the substance of the debriefing as proffered by the prosecutor and

Odom‘s counsel.

In Prophet, the defendant filed a motion for a new trial based on newly

discovered evidence, proffering an affidavit from his former co-defendant. The

trial court denied the motion without a hearing, concluding, among other things,

that the witness‘s testimony would probably not produce an acquittal. We rejected

Prophet‘s argument that the trial court should have held a hearing. Contrasting

prior cases where the trial court had summarily denied such motions without

explaining its reasons, we noted that in Prophet ―the trial court not only gave

careful consideration to the motion but explained in detail the reasons for its

ruling.‖ 707 A.2d at 779. Accordingly, we found ―no abuse of discretion in the

court‘s failure to hold a hearing.‖ Id.

Here the trial court similarly gave careful consideration to the motion, first

hearing testimony from three witnesses, including appellant, who testified

primarily about their efforts to locate Odom prior to the trial. It then urged the
 20

government to debrief Odom, heard a detailed proffer of that interview, and

considered appellant‘s explanations for many of the inconsistencies pointed out by

the trial court. As summarized above, the court then gave detailed reasons for

concluding that appellant ―utterly fail[ed]‖ to show that the proffered testimony of

Odom would probably produce an acquittal at a new trial. We find no abuse of

discretion here. See Johnson v. United States, 398 A.2d 354, 362 (D.C. 1979)

(―The concept of ‗exercise of discretion‘ is a review-restraining one.‖).10

V. The Dissent

Using phrases such as ―relatively minor inconsistencies and weaknesses,‖

―everyday weaknesses,‖ ―minor inconsistencies and ambiguities,‖ ―incidental

inconsistencies,‖ and ―weaknesses . . . of [a] garden variety,‖ our dissenting
10
Appellant also argues, as he did before the trial court, that his motion for a
new trial should have been granted because the written statement Odom signed and
Odom‘s statements during the debriefing could be admitted at a new trial as
statements against penal interest, even if Odom did not testify. Referring to the
statements at the debriefing, the trial judge asked ―how could that be a statement
against penal interest if he‘s got letter immunity at the time that he‘s making that
statement?‖ This statement was based on long experience and appellant‘s counsel
offered no meaningful response. However, as appellant points out, the record does
not contain an agreement or letter granting Odom any type of immunity in
connection with the debriefing. We therefore do not rely on this ground, but these
statements still fail to satisfy the five-part test quoted in Prophet. For all the
reasons summarized above, the so-called statements against penal interest would
not probably have produced an acquittal at a new trial.
 21

colleague finds the credibility assessments of the prosecutor and the trial judge

insufficient to support the rulings under review. But the trial judge was not

conducting de novo review and neither are we. We review the trial court‘s

decision for abuse of discretion, which is a ―review-restraining‖ standard.

Johnson, 398 A.2d at 362.

Judge Ruiz asserts that the denial of the new trial motion cannot be upheld

because the trial judge never ―heard from the witness directly‖ and her decision

therefore ―was not based on a firm factual foundation.‖ But that puts the cart

before the horse. Carter makes clear that the judge could not override Mr. Odom‘s

assertion of his Fifth Amendment privilege and that the government is not required

to confer immunity simply because it would be helpful to hear from a witness.11

Tackling the issues in their logical sequence, the trial judge exercised her

discretion carefully, faithfully applying the necessarily imprecise standards we

articulated in Carter. There is ample support for the trial court‘s judgment that the

government acted reasonably in declining to confer immunity upon Mr. Odom.
11
Judge Ruiz suggests hearing from Odom in camera as ―an option that
would have allowed the judge to hear from the witness directly with a minimal
extension of the letter immunity that had already been provided for the debriefing.‖
It appears that this option was not suggested in the trial court or in the briefs on
appeal. It is not at all clear that the government would be any more willing to
―sponsor perjury‖ if the public were excluded from the courtroom.
 22

Once she had decided the issue of immunity, Judge Leibovitz was faced with

the task of deciding the new trial motion without being able to hear the testimony

of Mr. Odom. In doing so, she properly assessed his credibility with the tools

available to her. See Prophet, 707 A.2d at 779. She was in no sense usurping the

function of a jury; no jury would hear Mr. Odom‘s testimony unless a new trial

were granted, and only then if the government were persuaded to grant immunity.

We do not dilute the importance of Carter, and its concern for fairness, by

affirming on this record. The trial court clearly has an obligation to explore the

basis for the prosecutor‘s decision not to grant immunity to the defense witness,

and we have a duty to intervene when the trial court abuses its discretion. In

conducting our review, however, we must respect the differing roles of the

government, the trial judge, and the appellate court. Otherwise, we may forget the

lessons of Carter, particularly the principle that granting immunity is not a judicial

function.

VI. Conclusion
 23

The trial court‘s judgment denying appellant‘s motion for a new trial is

hereby

Affirmed.

RUIZ, Senior Judge, dissenting: For the first time since the court established

a procedure for judicial review of defense requests for immunity in Carter v.

United States, 684 A.2d 331 (D.C. 1996) (en banc), we are presented with a case

where the trial judge has determined that the proffered testimony of a defense

witness is exculpatory, material, non-cumulative and not available from another

source; if believed, according to the trial judge, the witness‘s testimony would

result in an acquittal. Also for the first time, the issue arises in the context of a

motion for new trial. Thus, the appeal presents sharply defined questions: (1)

whether the prosecutor acted unreasonably in refusing to grant limited immunity so

that the trial judge could assess the credibility of the witness first-hand, as a

―thirteenth juror,‖ in determining whether appellant was entitled to a new trial; and

(2) whether, in the absence of an opportunity to hear from the witness directly, the

trial court properly exercised discretion in denying the motion for new trial on the

basis that the witness‘s testimony would not be credible.
 24

Unlike my colleagues in the majority, I conclude that the relatively minor

inconsistencies and weaknesses in the proffered testimony did not justify the

prosecutor‘s denial of immunity on the ground that the government would be

sanctioning perjury. Moreover, the prosecutor‘s refusal was unreasonable in light

of the critical importance that the trial judge had ascribed to the witness and the

limited and targeted nature of the request — only for the trial judge‘s consideration

of the defense motion. As a consequence, the trial judge‘s denial of the new trial

motion based on a determination that the proffered witness would not be

believable, without ever having heard from the witness directly, was not based on a

firm factual foundation and cannot be upheld. Therefore, I would reverse and

remand the case for further consideration of the limited immunity request and new

trial motion. On remand, the trial court should explore with all counsel whether

the judge could hear from the witness while respecting his Fifth Amendment

privilege and without unduly impinging on the government‘s legitimate interests.

If possible, the trial judge should be permitted, under a limited grant of immunity

to the witness tailored to the purposes of a new trial motion, to assess first-hand the

testimony of this critical defense witness. If, after careful exploration of all the

issues under the trial court‘s guidance, the government continues to refuse to grant

limited immunity that will permit the trial court to do so, the trial judge must

decide whether sanctioning the government is warranted under the circumstances.
 25

The appeal also presents two legal issues that the conclusions of the majority

allow it to sidestep. As I disagree with the majority‘s conclusions, I must address

those legal issues as well. I would hold that the proffered defense witness was

newly discovered for purposes of Rule 33 and that the Carter procedure applies in

the context of a new trial motion.

I discuss first the conclusions in the majority opinion with which I disagree

and then the legal issues the majority opinion does not address.

I. The Prosecutor’s Refusal to Extend Limited Immunity to the
Proffered Defense Witness for the Trial Judge’s Benefit

We established in Carter that where the trial court determines that the

proposed testimony is ―material, exculpatory, non-cumulative and unavailable

from another source,‖ and the prosecutor does not submit ―a reasonable basis‖ for

not affording use immunity to the crucial witness, the trial court may put the

prosecutor to a choice ―between dismissal of the indictment or some other

commensurate remedy which the court may fashion on Sixth Amendment and due
 26

process grounds, or affording use immunity to the crucial defense witness . . . .‖

684 A.2d at 343.

Carter made clear that the decision to grant immunity is an executive

function that lies with the prosecutor, id. at 338-39, but it also recognized that

authority is abused if used to gain a tactical advantage and is not reasonably based

on legitimate government interests, such as ―considerations of potential future

prosecution, an ongoing investigation, clear indications of potential perjury, or the

excusable lack of information during the debriefing to make an informed

decision.‖ Id. at 342.

The point of Carter was to craft a procedure — ―the carrot and stick

approach,‖ id. at 341 (quoting United States v. Bahadar, 954 F.2d 821, 826 (2d

Cir. 1992)) — that ―would provide the trial court a means to balance the legitimate

governmental interest with the defendant‘s Sixth Amendment right to compulsory

process and Fifth Amendment right to due process of law by way of a fair trial.‖

Id. at 335. Carter grounded its reasoning on ―settled law that the government has a

constitutional duty to volunteer exculpatory evidence to a criminal defendant,‖ id.

at 344 (citing United States v. Agurs, 427 U.S. 97 (1976); United States v. Bagley,

473 U.S. 667 (1985); and United States v. Trevino, 89 F.3d 187 (4th Cir. 1996)).
 27

From this constitutional mandate, Carter derived ―a related obligation to afford

immunity to a crucial defense witness claiming the privilege against self-

incrimination, so as to unlock the exculpatory testimony, always assuming the

government can offer the trial judge no sound reason to withhold immunity from

the particular witness.‖ Id. Thus, the question of fairness to the defendant is to be

weighed in determining the reasonableness of the government‘s decision to deny

immunity to an exculpatory defense witness. This is not an inquiry into

prosecutorial misconduct, but an assessment of the impact of the government‘s

decision, i.e., whether without the evidence, there will be ―a distortion of the fact-

finding process.‖ Id. at 344-45; see Brady, 373 U.S. at 87 (noting that a

constitutional violation may occur ―irrespective of the good faith or the bad faith of

the prosecutor‖); Agurs, 427 U.S. at 110 (noting that what is at issue is ―the

character of the evidence, not the character of the prosecutor‖).

A. “Sponsoring perjury”

Here, the trial court determined that Odom‘s testimony was ―material,

exculpatory, non-cumulative, and unavailable from any other source,‖ and that, if
 28

believed, the testimony would result in acquittal.1 Yet the government decided not

to immunize Odom, asserting, as its sole concern, that it would be ―sponsoring

perjury.‖2 Was this decision ―reasonable‖ under Carter?3

Carter referred to ―clear indications of potential perjury‖ or the ―threat of

blatant perjury . . . that is so apparent as to be demonstrable to the trial judge,‖ id.

1
The government does not dispute these determinations.
2
The prosecutor stated that she believed ―that by putting this witness on the
stand [the government] would be sponsoring perjury.‖ The prosecutor did not
mention any of the other legitimate justifications that Carter identified: a pending
investigation, insufficient basis to make a decision, or potential future prosecution.
3
Since Carter, we have had very few cases raising the question whether the
prosecutor‘s refusal to grant immunity was reasonable; the few cases that have
presented the question were not close on the question. For example, in Butler v.
United States, 890 A.2d 181, 189 (D.C. 2006), we upheld the trial court‘s decision
not to sanction the government where the witness refused to be debriefed by the
government, leaving the government without a basis upon which to make an
informed decision. This was explicitly identified in Carter as a reasonable basis
for declining to grant immunity. 684 A.2d at 342. Unlike in Butler, here the
witness was debriefed. In Ginyard v. United States, 816 A.2d 21 (D.C. 2003), and
Bell v. United States, 950 A.2d 56 (D.C. 2008), we affirmed the denial of motions
for new trials where requests for Carter procedures were made. In Ginyard, we
found that Carter was inapplicable because the proposed testimony was not that of
a ―proposed defense witness‖ as defendant ―did not seek to present [his] testimony
or ask the government to immunize [him] to enable him to be a defense witness,‖
the testimony ―would not have been materially exculpatory,‖ nor was the evidence
―unobtainable from any other source.‖ 816 A.2d at 34. In Bell, we affirmed the
trial court‘s decision not to conduct a Carter procedure because the proposed
testimony was ―not ‗clearly exculpatory‘ of appellant.‖ 950 A.2d at 63.
 29

at 342, as a proper justification for the government to refuse immunity. This was

the case, for example, in United States v. Moore, 651 F.3d 30, 81-82 (D.C. Cir.

2011), where the D.C. Circuit affirmed the District Court‘s determination that the

government‘s refusal to immunize a defense witness for trial was reasonable and

did not warrant sanction under Carter where the witness had given four wildly

different stories about a murder, claiming first that he participated only in a

robbery, then naming the murderer, then saying he was the murderer, and finally

denying any involvement at all. The witness in Moore was clearly lying about an

issue material to the prosecution.

Unlike in Moore, in this case the proffered defense witness did not make

contradictory claims about the crime charged; to the contrary, Odom consistently

said the gun and briefcase found in the backseat of appellant‘s car were his.

Rather, the prosecutor cited nothing more than the everyday weaknesses in

testimony routinely presented in criminal trials: minor inconsistencies and

ambiguities in Odom‘s statements during the debriefing, his delay in coming

forward, drug addiction and intoxication, and prior convictions. These weaknesses

are inherent in the testimony of witnesses presented by the government in its case-

in-chief in any number of cases where we have upheld convictions as supported by
 30

proof beyond a reasonable doubt,4 and do not implicate the government in

―sponsoring perjury‖ as the prosecutor said it would be doing if it were to grant

immunity to the defense witness in this case. If the government can present such

testimony to satisfy its burden of proof beyond a reasonable doubt, is it fair to deny

that opportunity to the defense, on a claim of ―perjury,‖ so that it can meet the

much lower threshold of raising a reasonable doubt? Moreover, Carter could not

have envisioned that the defense would proffer witnesses who were free from taint;

indeed, it was concerned only with witnesses who are involved in wrongdoing,

otherwise they would not have a Fifth Amendment privilege. The question is how

much taint is too much and from whose perspective?

It is unnecessary to decide whether the prosecutor‘s use of the word

―perjury‖ in this case or whether Carter‘s use of the term were intended in the

technical sense of that word. See Gaffney v. United States, 980 A.2d 1190, 1193

(D.C. 2009) (explaining that for perjury government must prove that the witness

made ―a false statement of material fact under oath with knowledge of its falsity‖).

4
See, e.g., Fortune v. United States, 59 A.3d 949, 960-61 (D.C. 2013)
(noting that the sole government witness‘s criminal convictions and a history of
drug use did not make her testimony ―inherently incredible‖); Gibson v. United
States, 792 A.2d 1059, 1063 (D.C. 2002) (stating that jury could credit testimony
of a government witness who had been drinking and smoking marijuana before the
incident occurred).
 31

What is obvious from the use of such a freighted term is the understandable

concern that the government should not be penalized for declining to cloak with

governmental immunity the testimony of a witness who would be deliberately

lying about issues material to the offense. This is not a ―necessarily imprecise

standard,‖ as the majority says. Carter purposely set a high bar and made clear

that the prosecutor should not refuse to immunize an exculpatory witness simply

because she does not think the witness‘s testimony would be credible before a jury.

If the government believes a proffered defense witness who, as here, would

completely exculpate the defendant, it would be obligated to discontinue the

prosecution of the defendant. Carter, on the other hand, established the conditions

to make it possible for the exculpating witness to be presented in the prosecution of

the defendant.

Questions about witness credibility are ―committed to the sole and sound

discretion of the jury as determiners of fact.‖ Payne v. United States, 516 A.2d

484, 493 (D.C. 1986). Although Carter recognized ―clear indications of potential

perjury‖ as a legitimate basis for denying immunity, it cautioned that in deciding

whether to grant immunity to a defense witness, the prosecutor may not ―in effect

usurp the usual jury function of judging credibility.‖ 684 A.2d at 342. But that is

what the prosecutor‘s reasons for refusing to immunize Odom amounted to in this
 32

case, under the guise of the overheated rubric of ―perjury.‖ For example, the court

accorded great significance to the prosecutor‘s argument that Odom ―did not make

himself known or available at the time of trial‖ and found that it ―diminishes the

credibility of his current assertion of facts enormously.‖ The court also noted that,

according to the prosecutor, Odom ―stated basic facts about himself . . . either

falsely or unknowingly incorrectly‖ such as ―the number of kids he had,‖ and when

he had ―last talked to any of the family members he was supposedly extremely

close to.‖ According to the trial court, this indicated ―either a cognitive

impairment or a truth impairment.‖ The court discussed Odom‘s ―crack haze,‖ and

said that he was ―so drunk‖ on the night of the incident that ―by definition his

credibility as to anything he would testify about that night would be hugely

impaired.‖5 Relying on the government‘s proffer, the trial court picked out

individual parts of what Odom had said in debriefing: that ―he was dropped at

Union Station rather than New York Avenue‖; that according to the prosecutor,

Odom said ―there was a gun in the briefcase,‖ (emphasis added) instead of

admitting ―that was my gun in the briefcase‖ (emphasis added); that Odom could

5
The testimony at trial was that appellant and Odom had spent the night at a
club playing pool and buying each other drinks. At the debriefing, Odom said he
forgot to retrieve his briefcase from the backseat of appellant‘s car and a Burberry
raincoat that he had placed in the trunk because he was drunk. However, there
does not appear to have been any effort to quantify the amount of alcohol or other
intoxicants Odom had consumed that night.
 33

not say ―what manufacturer of gun it was,‖ and did not remember the marijuana in

the briefcase.

In the Rule 33 hearing, defense counsel provided explanations for many of

these inconsistencies. With respect to his absence from the first trial, Odom said

during the debriefing that ―he came forward because he was in recovery and it was

his fourth step.‖ Before then, he was on crack, jobless, homeless, and living on the

streets.6 Although a witness‘s delayed report to the authorities may be grounds for

impeachment, it is not a disqualification nor does it make the witness‘s testimony

inherently incredible. See Morris v. United States, 662 A.2d 111, 1125 (D.C.

1993). Many witnesses are understandably reluctant to testify at a criminal trial

and this is even more so when that testimony would self-incriminate them in the

6
The government put great weight on the alleged discrepancy as to whether
Odom had entered drug treatment before the trial, or after. The trial was scheduled
to begin on April 8, 2009, but did not actually take place until April 13 and
concluded on April 15. The government stated that ―Odom entered the drug
program [at Avery Road] on April 27th,‖ — after the trial — and claimed that
Odom said he was admitted ―on March 24th.‖ Odom‘s lawyer, however, explained
that ―the first thing my client offered was that he was at Avery Road April 28th.
Then he hedged and he wasn‘t sure . . . [but] he was accurate as to his initial guess
as to when he started treatment.‖ The medical records obtained by the prosecution
confirmed Odom‘s initial recollection.
 34

commission of a felony.7 The question is not whether the witness did not come

forward before trial, but why, and whether the reason for his eventual decision to

come forward would be credible to a jury. Here, there were plausible and concrete

explanations for Odom‘s absence at the time of trial and subsequent willingness to

take responsibility as part of his recovery from drug addiction. Even the

impeaching prior convictions, which were mostly for drug offenses, corroborated

Odom‘s statements that he had a been a crack addict for five years before he

entered the drug treatment program that caused him to make the decision to come

forward.

Defense counsel also argued that other alleged inconsistencies highlighted

by the government were minor or merely discrepancies of the type that are grist for

the jury‘s mill. For example, the fact that Odom claimed he was dropped off at

Union Station, while the government stated it was the New York Avenue Metro

station (based on Nicole Smith‘s description at trial that he was dropped off at a

―Metro station off of 5th and K‖) could have been ―an honest mistake‖ by the

intoxicated Odom because those two stations are a few blocks apart. According to

7
Any impeachment of Odom for failing to come forward would be
permissible ―only where the circumstances are such that the witness‘s normal and
natural course of conduct would have been to go to the authorities and furnish the
exculpatory information.‖ Alexander v. United States, 718 A.2d 137, 143 (D.C.
1998).
 35

Odom‘s counsel, Odom was ―hazy‖ about where he was dropped off. Odom‘s

confusion might also be understandable in light of his explanation that because

appellant had ―the young lady in the front seat,‖ ―they changed plans on him,‖ and

instead of being given a ride home, as he had expected, they ―kind of dropped him

at Union Station.‖ With respect to the number of children Odom had, the

prosecutor proffered that Odom stated at the debriefing that he had two children.

At the motions hearing, for the first time the prosecutor added that after subsequent

investigation, the government determined ―he actually has four,‖ but did not offer

any evidence in support of that assertion. Even though Odom was never asked

about the two additional children the government claimed it discovered after the

debriefing, the court accepted the prosecutor‘s statement and concluded that Odom

had ―either a cognitive impairment or a truth impairment such that he misstated the

number of kids he had.‖ That might have been an unfounded inference, however,

as appellant explains in his brief on appeal that ―Odom denies paternity of two of

the children the government believes he sired.‖ The trial judge did not know this,

however, because Odom was not informed of the government‘s allegation or given

a chance to explain.

These inconsistencies were, in any event, at most incidental to the primary

question of guilt for possession of the gun in the briefcase. Odom maintained that
 36

the briefcase, and the gun in it, were his. He never wavered. His claim was

corroborated by other evidence. Odom stated that he forgot the briefcase in the

backseat of appellant‘s car, consistent with the trial testimony of the officer who

said that the briefcase was found in the back passenger compartment. Nicole

Smith, the person who was a passenger in the front of appellant‘s car, testified at

trial that she had seen Odom enter and leave the backseat of the car, but had not

seen a briefcase, also consistent with the officer‘s testimony that the case was

found right behind the front passenger seat, where Smith would not have seen it.

Much was made by the prosecutor and the trial judge of the fact that Odom did not

know the manufacturer of the gun. But he correctly identified it as a 9 mm and

also correctly said that it was loaded, but not with a full clip. At trial, the officer

who searched the car testified that there were eight rounds of ammunition in total.

The gun was loaded with ―six rounds in the chamber.‖ Odom also said where he

bought the gun and what he exchanged for it, see note 14 infra, and when he did

so;8 he said that he had first taken the ammunition out because he had tried to sell

the gun, but then reloaded the gun. The prosecutor proffered that Odom said there

8
Odom said that he bought the gun ―about one month‖ before it was seized
by the police on January 9, 2008. The government argues that Odom‘s assertion
could not be right because he had been in jail until ―mid-December‖ 2007. This is
hairsplitting. Odom gave no specific date, but an approximation of ―about‖ a
month; the three-week period between mid-December and January 5 is ―about‖ a
month.
 37

was ―a‖ gun — rather than ―my gun‖ — in the briefcase, and the trial court thought

that formulation indicated that Odom was not fully claiming responsibility for the

gun. But one must keep in mind that there was no transcript of the debriefing that

captured Odom‘s exact words, and the prosecutor‘s account was disputed by

Odom‘s counsel, who informed the court that Odom said the gun was ―his.‖ In this

respect, Odom‘s signed and sworn affidavit also stated that ―I left a briefcase in

[appellant‘s] automobile,‖ and that ―in the briefcase was a gun and over 1000

pills.‖

In considering the government‘s justification for denying limited immunity

to the witness, the trial judge‘s role was not to agree or disagree with the

prosecutor‘s assessment of the witness‘s credibility. Nor is it our appellate role to

agree or disagree with the trial judge in this respect. Assessing the credibility of

the witness and the probable impact of the witness‘s testimony if presented at trial,

was the issue for the trial court in ruling on the Rule 33 motion, but it was not

properly the focus of the preliminary, and different, inquiry into the reasonableness

of the prosecutor‘s refusal to immunize the witness, which denied the trial court

the opportunity to hear and question Odom directly. At this first step, the relevant

question was whether Odom‘s statements gave such ―clear indications of potential

perjury‖ that the trial judge should not even have to engage in the more nuanced
 38

assessment of credibility appropriate to a Rule 33 inquiry. That was not the case

here and ―potential perjury‖ was not the basis for the trial court‘s determination

that the government‘s decision not to extend immunity was reasonable. The

prosecutor‘s and court‘s focus on factors that go to the ultimate question of

credibility at trial (incidental inconsistencies, delay in coming forward, addiction

and prior convictions) rather than on the standard established in Carter — clear

indications of potential perjury — was misguided in light of Odom‘s clear

admission that the gun in the briefcase was his — a statement that, if believed,

exculpated appellant of the gun possession.9 With a limited grant of immunity,

many of the inconsistencies the prosecutor emphasized could have been explored

and the court could have assessed first-hand whether they sufficed to defeat the

motion for a new trial or should be for a jury to decide.

The majority draws attention to evidence tying appellant to the briefcase.

Not only was the briefcase found in appellant‘s car, he ―admitted it was his.‖ A

bullet matching those in the briefcase and in the chamber of the gun was found on

the driver‘s side floorboard of appellant‘s car. The pills in the briefcase were green

9
This was the only charge for which a new trial was sought. Appellant‘s
drug convictions were supported by evidence of drugs (pills and marijuana) found
on his person and in the trunk of his car. The drug convictions were not the subject
of the new trial motion nor are they at issue on appeal.
 39

and yellow, just like those found in appellant‘s pocket, and marijuana was

recovered from the briefcase and the trunk of appellant‘s car.

Considered by itself, as it was at trial, this evidence is undeniably sufficient

to convict appellant of owning the gun found in the briefcase. But the evidence was

not as forceful as might appear at first blush. Evidence that appellant said that the

briefcase was his came from an officer who arrested appellant. He testified that

when he asked appellant to open the locked compartment of the briefcase, he

refused, saying that the briefcase was his and that it contained naked pictures of his

wife. But another officer on the scene, testifying about the same conversation,

remembered appellant‘s claim that the briefcase contained naked pictures of his

wife, but said nothing to indicate that appellant expressly claimed ownership of the

briefcase. In addition, both officers‘ testimony was impeached by the fact that

neither officer recorded what appellant said after the arrest.

The pills in appellant‘s front pocket were similar to some of those in the

briefcase. The forensic chemist testified that appellant‘s pocket contained red and

orange pills (both inert) and yellow and green pills (which contained MDMA).

The briefcase also contained green and yellow pills, some inert, and others

containing MDMA. But these facts do not mandate the inference that the briefcase
 40

belonged to appellant. Odom, who said he had taken over 1000 pills to the club to

sell to a purchaser who did not show up, could have given or sold some of the pills

to appellant with whom he spent the night at the club, drinking and shooting pool.

As for the marijuana found in the briefcase and the trunk of appellant‘s car, the

forensic chemist testified that the contents of the two separate bags were

commingled in the lab and tested together. Thus, the record provides no evidence

that the marijuana in appellant‘s trunk was the same type as that found in the

briefcase, as the government conducted no test that would allow it to compare the

two samples. The jury did not have to decide whether appellant owned the pills

and marijuana in the briefcase because appellant was charged with possessing the

pills found in his pocket and marijuana in the trunk of his car, not those in the

briefcase.

That was the evidence presented at trial. But the issue in this case does not

pertain to the trial that was had but to how a new trial with the proffered defense

witness would have been different. Once the trial judge was informed of Odom‘s

proffered testimony claiming the briefcase was his, in ruling on the motion for new

trial the judge said ―it may well be the case‖ that Odom put the briefcase in

appellant‘s car; the judge thought Odom ―actually might be credible‖ about owning

the pills in the briefcase. Although the trial judge did not say whether she credited
 41

or discredited the officers‘ testimony about appellant‘s statements, we do know she

did not give much weight to appellant‘s purported admission about the briefcase

and did not rely on the officers‘ testimony or appellant‘s statement in ruling on the

new trial motion — despite the prosecutor‘s urging that she do so. At a minimum,

the trial judge struggled with the question of who the briefcase belonged to and did

not assume that it belonged to appellant simply because officers testified that he

said so when he was arrested. If the trial judge thought the evidence seen as a

whole, including the proffered defense witness, supported Odom‘s claims to own

the briefcase and the pills, the countervailing evidence in the government‘s case

could not be compelling enough to provide a ―clear indication‖ that Odom was

lying. 684 A.2d at 342. And this is the relevant standard under Carter.

B. The limited nature of the immunity requested

There is a second and distinctive aspect to evaluating the reasonableness of

the prosecutor‘s refusal to immunize the witness in this case. Unlike in Carter,

which involved a request for use immunity so that the defense could present an

exculpatory witness to the jury at trial, in this case what was required from the

government was much more limited in scope: a grant of immunity that would
 42

permit the judge to assess Odom‘s credibility directly in order to decide the

pending defense motion for a new trial.

The judge recognized that because the immunity requested was only for the

motions hearing, it ―presented a different calculus‖ than in the context of a request

to present immunized testimony at a full-fledged trial.10 The trial judge was

undoubtedly correct, but what the judge missed is that the difference in the

calculus favored the grant of limited immunity. 11

The reasonableness of the prosecutor‘s decision not to immunize the witness

has to be evaluated in the context of the purpose of the request and the scope of the

requested immunity. Here, the purpose was to permit the judge to assess the

10
The trial court stated during the motions hearing:

What‘s happening here is that as a threshold
matter, that witness isn‘t going to be able to testify in this
hearing or isn‘t going to choose to testify in this hearing
because he has a Fifth Amendment privilege.

And so this is not trial testimony, this is motions
hearing testimony.
11
The trial judge‘s reluctance to explore the application of Carter in the
setting of a motion for new trial might be explained by her own disapproval or
discomfort with Carter and the procedure it established. (―Carter in and of itself
is, I‘ve always felt, way out there as an opinion.‖).
 43

witness‘s credibility in deciding a motion for new trial pending before the court.

As the witness had already been granted ―letter immunity‖ for purposes of

debriefing by the prosecutor,12 what was required was an incremental extension of

that immunity to include the judge under conditions tailored to the motion before

the court. Carter also suggested that the court could consider hearing from the

witness ―in camera,‖ 684 A.2d at 343 n.16, an option that would have allowed the

judge to hear from the witness directly with a minimal extension of the letter

immunity that had already been provided for the debriefing.13

Instead of extending Odom‘s immunity to allow the trial court to hear from

Odom directly, the prosecutor proffered a narrative of Odom‘s statements to the

judge, without a transcript, and offered her assessment that Odom was lying. The

judge then asked Odom‘s counsel whether he had any disagreements with the

12
In its brief, the government represented that Odom received a letter
granting him limited immunity for the debriefing. The letter is not in the record.
At oral argument, government counsel said that she would consult with appellant‘s
counsel about supplementing the record on appeal with the letter of immunity. The
court has not received any supplementation of the record in this regard.
13
We have suggested a similar in camera procedure to allow the judge to
determine whether information is Brady material. See Boyd v. United States, 908
A.2d 39, 61 (D.C. 2006) (―In arguable cases, the prosecutor should provide the
potentially exculpatory information to the defense or, at the very least, make it
available to the trial court for in camera inspection.‖).
 44

prosecutor‘s proffer. His response indicated there were some discrepancies that

could be significant on the question of credibility, including with respect to the

important question of whether Odom was familiar with the gun in the briefcase.14

14
The prosecutor stated that ―Odom remembers a gun [in his briefcase],
remembers that he has loaded it, doesn‘t remember the make or model of the gun,
says that he normally carried a .45 Glock.‖ However, reading from his notes and
those of his assistant, Odom‘s counsel recounted that Odom said that he normally
carried a 9 mm or .40, and that the gun in the briefcase was a 9 mm, but he could
not remember the manufacturer. The gun the police found in the briefcase was a 9
mm SIG Sauer.

There were other inconsistencies in the accounts the trial judge heard from
the prosecutor and Odom‘s counsel, both with respect to what Odom said and what
questions he was asked. According to the prosecutor, Odom said that he had
bought the gun ―from some random guy at some random location, which he
couldn‘t specify, for 300 packs of pills.‖ Odom‘s counsel, however, reported that
Odom said that he purchased the gun ―on the street in Michigan Park‖ in exchange
for ―three packs of pills.‖ He remembered taking the ammunition out of the gun
because he wanted to resell it, and then reloading the gun.

According to the prosecutor, Odom had no explanation for how a bullet
could have gotten on the floorboard of appellant‘s car. This appears to have been
the prosecutor‘s inference from the fact that Odom said he did not open the
briefcase in the car, as Odom‘s counsel reported that the prosecutor did not ask
Odom about the bullet found loose in the car. With respect to the marijuana found
in the briefcase, the prosecutor related that Odom ―did not remember‖ the
marijuana, but Odom‘s counsel said Odom was asked only whether he smoked
marijuana, which he admitted to doing ―regularly.‖ According to Odom‘s counsel,
there were ―no further questions‖ by the prosecutor about the marijuana found in
the briefcase, and Odom did not volunteer any statement in this regard. But the
prosecutor replied that several times Odom had been asked whether there was
―anything else‖ in the briefcase.‖ These discrepancies were not reconciled. In
considering the relevance of Odom‘s failure to mention the marijuana found in the
briefcase, it is important to bear in mind that at trial the officer testified that there
was ―a little bit‖ of marijuana in the briefcase.
 45

Lacking a transcript of the debriefing, the trial court had no definitive source about

what Odom actually said, or what he was asked. Based on the narrative, the judge

concurred with the prosecutor‘s assessment that Odom was lying.

It is difficult to understand why this roundabout, second-best procedure was

reasonable under the circumstances. The importance of the proffered exculpatory

testimony, the relatively minor nature of the weaknesses pointed out by the

prosecutor, and the need for an accurate understanding of what the testimony

would be, made it all the more important that the judge have direct access to the

proffered witness. There was no obstacle, other than the prosecutor‘s refusal to

extend the immunity it had already granted to Odom, for the court not to assess

Odom‘s credibility based on direct observation. Odom was physically available

during both dates of the motions hearing: he was in the courtroom when that

hearing began on October 23, and he was ―in the hallway‖ when it continued on

December 11. And even if the prosecutor and the trial court thought there were

questions about Odom‘s veracity, there was countervailing evidence of his bona

fides as Odom had been willing to put his credibility on the line, offering to take a

polygraph test.
 46

Where the court determines that the refusal to grant immunity will unfairly

―distort the fact-finding process,‖ the trial court may decide that a sanction is

warranted. Carter, 684 A.2d at 345.15 That inference arguably could be justified

where the proffered witness has been determined to be critical to acquittal in a new

trial, the identified weaknesses in the witness‘s testimony are of garden variety,

and the prosecutor could reasonably be expected to extend the immunity already

granted to permit the trial judge to assess the witness‘s credibility directly. It is

premature to make that ultimate determination at this juncture, however, because

the matter has not been fully aired and considered under the correct legal standard.

I would reverse and remand the case so that the trial court can re-assess Odom‘s

proffered testimony for ―clear indications of potential perjury.‖ Then, using the

―carrot and stick‖ approach envisioned in Carter, id. at 341, the trial judge should

explore with all counsel whether some accommodation can be reached that would

harmonize the defendant‘s constitutional rights and the government‘s legitimate

interests in order to obtain the ―immunity key to unlock exculpatory evidence from

the defense witness,‖ id. at 344, that the judge needs to assess to perform her

judicial function in ruling on the motion for new trial. See id. at 350 (Ruiz, J.,

concurring) (noting that ―where competing constitutional rights are asserted, it is

15
During the motions hearing defense counsel made clear that he was not
seeking any ―sanction‖ against the government, only a new trial so that Odom
could be presented as a defense witness.
 47

the trial court‘s responsibility to avoid a conflict between them and to

accommodate all of them, if at all possible,‖ and that ―all the participants at trial,

under the guidance of the trial court, must actively attempt to find means around

the problem.‖).

II. The Trial Court’s Denial of the Motion for New Trial

Most of the same inconsistencies discussed above were cited by the trial

judge in deciding to deny the motion for new trial on the ground that Odom‘s

testimony would not be believable if presented at a new trial.16 The trial court also

referred to three other items of evidence, as relevant for what they revealed about

the credibility of Odom‘s claim to ownership of the gun. Specifically, the trial

court worried that Odom‘s statement that the gun in the briefcase he left in

appellant‘s car was his did not address the stray bullet found on the floorboard of

the car, because Odom had not opened the briefcase while he was in the car. The
16
Our standard of review of the denial of a new trial motion is usually
deferential, for abuse of discretion. See Prophet, 707 A.2d at 777-78. This is a
reflection of the fact that the trial court, who has sat through the trial and observed
the witnesses, has a superior evidentiary basis for decision. See Anderson v. City
of Bessemer City, North Carolina, 470 U.S. 564, 573-74 (1985). In this case,
however, where the trial judge never had an opportunity to observe Odom testify,
we are in the same position as the trial judge; we know just as much (or just as
little) with respect to how his credibility would be judged if he were to take the
stand.
 48

court also found it telling that when Gregory Daniels, a friend of appellant,

approached Odom days after the incident to ask Odom to own up to what was his,

and asked about the Ecstasy pills in the briefcase, Odom reassured him the drugs

weren‘t real but said nothing about the gun. The trial court also thought that

appellant‘s comment during taped telephone calls made while he was in jail that

―we‘re gonna put [the drugs and the gun] on Odom‖ undermined Odom‘s

credibility. None of these questions would explain, however, why Odom would be

willing to say the gun was his, even if he were granted some sort of limited or use

immunity. The question for the judge was not whether there were any loose ends,

but whether they were likely to outweigh Odom‘s admission before a jury that the

gun was his.

In ruling on a new trial motion, the trial court must evaluate the proffered

new evidence and decide whether it is ―of such nature that in a new trial it would

probably produce an acquittal.‖ Prophet v. United States, 707 A.2d 775, 778 (D.C.

1998). In this case, the trial judge determined that, if believed, Odom‘s testimony

would result in an acquittal. The only issue, therefore, was whether his testimony

that the gun was his was believable to the point that it would raise a reasonable

doubt in the mind of a jury about appellant‘s possession of the gun. In making this

determination, the trial court ―sit[s] as a thirteenth juror‖ — a reference to the fact-
 49

finder‘s role in determining credibility and weighing the evidence. Ingram v.

United States, 40 A.3d 293, 299 (D.C. 1983). For the trial judge to be able to sit as

a thirteenth juror in this case, she had to be able to put herself in the position of a

juror in a new trial who heard the witness. The trial judge did not dismiss Odom as

an incredible witness; in fact, she thought ―it may well be the case‖ that Odom put

his briefcase and raincoat in appellant‘s car, and that Odom ―actually . . . might be

credible‖ about his ownership of the pills in the briefcase. But the judge was not

convinced by his claim that the gun in the briefcase was his. There was no

explanation, however, for how and when the gun would have found its way into

Odom‘s briefcase, which was locked when the police seized it upon arresting

appellant and his companion for drinking in the car. Under the circumstances,

where so much was at stake on the resolution of that question, and the judge was

informed of the witness‘s statements only through the filter of counsel and did not

have an independent basis for assessing the witness‘s credibility, the judge was not

in a position, as a thirteenth juror, to weigh its impact on the evidence as a whole.17

As a result, the court‘s decision denying the motion for new trial, based only on the

17
The trial judge commented that Odom‘s counsel and the prosecutor had
proffered ―what the witness‘s demeanor, recollections would be like.‖ But except
for the fact that Odom‘s recollections were described as a bit ―hazy‖ on some
points, there was no description of his demeanor.
 50

proffer, on the ground that Odom would not be credible before a jury lacked a firm

factual foundation.18

As I disagree with the majority that the trial judge‘s determination that the

prosecutor‘s refusal to grant limited immunity to Odom was reasonable and denial

of the motion for new trial without hearing from the witness on the ground that

Odom would not be believable was proper, I turn to address two underlying legal

issues that the majority avoids: whether Odom‘s testimony was ―newly

discovered‖ for purposes of Rule 33, and whether Carter applies in the context of a

new trial motion. I conclude in the affirmative as to both.

III. Newly Discovered Evidence

18
There are cases in which ―a trial court does not need to hold a hearing
before ruling on a motion for new trial.‖ Geddie v. United States, 663 A.2d 531,
534 (D.C. 1995) (citation omitted). However, in those cases, the trial court has
either already heard directly from the witness during the trial and is in a position to
evaluate a proffer of additional testimony (e.g., a recantation), or is able to decide
that the new evidence, even if credited, would not have made a difference in the
context of the trial as a whole. See Ingram, 40 A.3d at 901 (affirming denial of
new trial motion where trial judge found ―that the jury did not appear persuaded by
similar testimony‖); Johnson v. United States, 537 A.2d 555, 561-62 (D.C. 1988)
(observing that two proposed witnesses had already testified at trial). This,
however, is not such a case.
 51

The government‘s leading contention on appeal is that we can affirm the

trial court‘s denial of appellant‘s motion for new trial solely on the basis that

Odom‘s proffered testimony was not ―newly discovered‖ for purposes of Rule

33.19 The government argues that ―[w]here the substance of a non-testifying trial

witness‘s testimony was known to the defense at trial, that witness‘s [subsequent]

offer to testify does not qualify as newly discovered evidence.‖20 I disagree with

that categorical assertion. Rather, when, as in this case, evidence was not

discoverable even though the defense has been diligent in trying to find and present

the witness in time for trial, that witness‘s testimony, when proffered in a motion

for new trial, is ―newly discovered‖ for purposes of Rule 33.
19
To obtain a new trial because of newly discovered evidence,

(1) the evidence must have been discovered since the
trial; (2) the party seeking the new trial must show
diligence in the attempt to procure the newly discovered
evidence; (3) the evidence relied on must not be merely
cumulative or impeaching; (4) it must be material to the
issues involved; and (5) of such nature that in a new trial
it would probably produce an acquittal.

Prophet, 707 A.2d at 77 (quoting Thompson v. United States, 188 F.2d 653 (D.C.
Cir. 1951).
20
The trial court concurred in this view, stating that ―the evidence is not
newly discovered, the body is newly discovered.‖ The trial court reasoned,
however, that even if the evidence had been newly discovered, appellant‘s motion
failed because Odom‘s testimony would not be credible. As I have discussed in
the previous section, the trial court‘s ruling cannot be upheld on that basis because
it lacks a firm factual foundation.
 52

The government relies on two cases from the United States Court of Appeals

for the District of Columbia Circuit for the proposition that ―the general rule in this

Circuit has been that evidence known to the defendant at the time of trial does not

qualify as newly discovered.‖ United States v. Gloster, 185 F.3d 910, 914 (D.C.

Cir. 1999) (citing United States v. Ortiz, 136 F.3d 161, 168 (D.C. Cir. 1998) (―The

traditional definition of newly discovered evidence is evidence ‗discovered since

trial.‘‖)). However, notwithstanding the ―general rule‖ quoted in the government‘s

brief, the cases cited are easily distinguished from this case. In Gloster, unlike in

this case, the witness was never physically unavailable; rather the witness was

known and at hand at the time of trial but claimed a Fifth Amendment privilege,

and his written statement exculpating the defendant was admitted as a statement

against penal interest. 185 F.3d at 912. Even more significantly, in both Gloster

and Ortiz, the court‘s decision did not turn on whether the evidence was newly

discovered because the proffered testimony failed several other prongs of the five-
21
part test. See Gloster, 185 F.3d at 915 (―[A]s in Ortiz, however, Gloster‘s claim

fails so many parts of the [] test that we need not tarry over the first.‖); Ortiz, 136

F.3d at 168 (holding that ―regardless of whether [the proposed witness‘s]

21
The five-pronged test we use is the same as the D.C. Circuit‘s. See note
19, supra.
 53

testimony is considered ‗newly discovered‘ evidence, there is no basis to conclude

that her testimony would have had any significant impact on the outcome of the

trial given the nature of the government‘s other evidence‖).22 Here, on the other

hand, the trial court specifically found that three of the five Prophet elements were

met: ―there was no failure of diligence on the part of counsel in attempting to

procure and subpoena the witness,‖ ―the evidence was not cumulative or

impeaching merely,‖ and ―the evidence was highly material.‖ See notes 16 and 17,

supra.

22
The government cites additional cases from other jurisdictions, which are
also distinguishable. See United States v. Lenz, 577 F.3d 377, 379 (1st Cir. 2009)
(holding that proposed testimony of victim, who was previously known and
physically available but had not been called as a witness at trial on advice of her
treating psychologist, was not newly discovered evidence); United States v. Lofton,
333 F.3d 874, 876 (8th Cir. 2003) (finding that proposed testimony of co-defendant
was not newly discovered because defense knew relevant facts during trial, and
thus could have called the co-defendant as a witness, and if the co-defendant
invoked his privilege against self-incrimination, then the defense could have
moved to sever his trial from his co-defendant, ―which would have tested whether
[the co-defendant‘s] unavailable testimony would deprive [the appellant] of a fair
trial.‖); United States v. Pierce, 62 F.3d 818, 824-25 (6th Cir. 1995) (noting that
proposed evidence was not newly discovered because it was known by the defense
at the time of trial; the proffered testimony was ―evasive, inconsistent and
implausible‖; the witness, who had testified at trial, ―lied under oath several
times‖; and the defendant himself had testified that the proposed witness was
―about as crazy a man as you‘ll ever meet‖).
 54

This case is more similar to Coates v. United States, 174 F.2d 959 (D.C. Cir.

1949), and Amos v. United States, 218 F.2d 44 (D.C. Cir. 1954), decisions binding

on this court,23 where the District of Columbia Circuit reversed and remanded the

cases for a new trial on the ground of newly discovered evidence even though the

existence of the newly proffered witness was known at trial. In Coates, the

defense proffered the testimony of a police officer who would have contradicted

the complainant on a material issue. 174 F.2d at 959-60. Although the defense

had known that an officer was a witness, he was not called to testify at trial. In a

motion for a new trial, counsel for the defendant attached an affidavit detailing the

efforts made prior to trial to identify and locate the witness. Id. at 959. The court

held that the testimony of the policeman ―was ‗newly discovered‘ within the

meaning of the rule,‖ emphasizing, among other factors, that ―[c]ounsel for the

defendant certainly showed diligence in trying to ascertain it.‖ Id. at 960.

Similarly, in Amos, defense counsel had attempted to subpoena a witness whose

testimony would corroborate the defendant‘s claim of self-defense, but defendant

did not know how to spell the witness‘s name and he could not be located. 218

F.2d at 44. The court found that ―it was no fault of the defendant or his counsel

that [the witness] was not available at the trial,‖ stating that even though the

evidence would be cumulative of the defendant‘s testimony, a new trial should be

23
See M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971).
 55

granted where ―a disinterested witness becomes available who can supply evidence

of vital importance and the only similar evidence at the trial was that of the

defendant himself.‖ Id.

Other courts recognize that when a witness is known but unavailable to

testify at the original trial notwithstanding the defense‘s efforts, her testimony

―may [be] considered ‗not previously available‘ for purposes of Rule 33. Lenz,

577 F.3d at 382; see United States v. Purnell, No. 97-4057, 1998 WL 405942, at

*3 (4th Cir. June 9, 1998) (determining that testimony was newly available, even

though witness was known, where defense counsel, despite diligent efforts, was

unable to speak with witness until after trial and until that time ―did not know how

[witness] would testify); United States v. Garland, 991 F.2d 328, 335-36 (6th Cir.

1993) (finding that proffered testimony was newly discovered where defense knew

of witness‘s existence, but could not locate witness after diligent attempts); see

also United States v. Ouimette, 798 F.2d 47, 52 (2d Cir. 1986) (remanding for

hearing on motion for new trial because court needed to make findings concerning

reasons for defense witness‘s unavailability and counsel‘s efforts to locate

witness).24

24
Courts are split where the evidence proffered as newly discovered
concerns the testimony of a co-defendant who has a Fifth Amendment privilege at
(continued . . .)
 56

It makes no sense to adopt an all-or-nothing rule. The question whether

evidence is ―newly discovered‖ should turn on the facts of the case. In this case, as

the trial court found, defense counsel, appellant, and Odom‘s brother had shown

―extraordinary diligence‖ in trying to locate Odom before the trial. In addition, at

the time of the motion for new trial, the court was presented with a plausible

explanation for Odom‘s former unavailability and subsequent willingness to come

forward. Under these circumstances, a determination that the proffered evidence

was newly discovered would neither reward negligent preparation nor provide an

incentive for ―strategic‖ decisions to withhold evidence until after a verdict. I

conclude that where the proposed witness was unavailable to testify at trial after a

diligent search by the defense, the proffered testimony is ―newly discovered‖ for

purposes of a Rule 33 motion.

(. . . continued)
the time of the original trial. Compare United States v. Jasin, 280 F.3d 355, 364-
65 (3d Cir. 2002) (discussing the majority rule that co-defendant statements are not
newly discovered under Rule 33, citing cases from other jurisdictions, and
commenting on the ―inherently suspect‖ nature of ―exculpatory testimony offered
by codefendants after they have been sentenced‖), with United States v.
Hernandez-Rodriguez, 443 F.3d 138, 144 (1st Cir. 2006) (―This circuit has long
held that exculpatory affidavits from co-defendants who exercised their Fifth
Amendment privilege not to testify at trial may constitute ‗newly discovered
evidence‘ for Rule 33 purposes.‖ (citations omitted)).
 57

IV. Carter Applies in the Rule 33 Context

The government argued in the trial court and before this court that Carter

has no application post-trial. The government relies in part on language in Carter

stating that the defendant is ―required to raise this issue pretrial, else it might

seriously derail the trial if raised after it commences.‖ 684 A.2d at 345. This

admonition makes perfectly good sense where the defense has the witness ready to

testify, as was the case in Carter, provided the requested immunity is granted. But

that may not always be the case and, as Carter also noted, the pretrial procedural

requirement may be altered ―for good cause.‖ Id.

It is obviously preferable, for the sake of good order and judicial efficiency,

that Carter requests be presented as soon as possible, and before trial whenever

feasible. However, there is good cause to depart from that common-sense

requirement in the case of new trial motions based on a newly discovered witness

who has a Fifth Amendment privilege against self-incrimination. As just

discussed, appellant‘s motion for a new trial was based on the proffer of a witness

the defense had diligently sought, but could not locate, before trial. Importantly,

the witness‘s testimony that the gun was his, if believed, would probably have led

to appellant‘s acquittal of the gun charge. Appellant‘s constitutional right to call
 58

witnesses and present a defense to the trier of fact would be compromised if he

were procedurally impeded, for reasons beyond his control, from invoking the trial

court‘s consideration of his request for a new trial. Moreover, the pre-and post-

trial distinction amounts to form over substance in this context, where the question

is whether to grant a new trial. If the motion were granted, appellant‘s ―post-trial‖

motion (after the first trial) would be tantamount to a ―pretrial‖ request (before the

second trial). What is significant is when the evidence became available to the

defense. If it was newly discovered for purposes of Rule 33, the Carter procedure

is available to enable the judge to rule on the motion on the merits. Cf. Brown v.

United States, 934 A.2d 930, 937 (D.C. 2007) (rejecting request for witness

immunity under Carter procedure made for first time on appeal).

The government also argues that Carter applies only for the purpose of

presenting evidence at trial, based on Carter‘s reliance on the Sixth Amendment

right to present a defense. See 684 A.2d at 335-36. This also seems a formalistic

distinction because the Sixth Amendment right would be implicated in a second

trial, which is the focus of the new trial motion. Moreover, in Carter the court also

based its reasoning on the trial court‘s and government‘s obligations to balance the

defendant‘s Fifth Amendment right to due process of law ―by way of a fair trial.‖

Id. at 335, 342-44. In considering a new trial motion, the trial court implicitly
 59

decides whether, in light of the new evidence proffered, fairness to the defendant

requires that a jury decide guilt after hearing all the evidence. Thus, the Carter

procedure is applicable in a Rule 33 motion hearing based on a newly discovered

materially exculpatory witness who has a Fifth Amendment privilege.

***

For the foregoing reasons, I would reverse the trial court‘s denial of the new

trial motion and remand the case so that the trial judge may consider, in

consultation with all counsel, options available that would permit the court to make

a first-hand assessment of the credibility of the proffered exculpatory witness in a

manner that would respect the witness‘s Fifth Amendment privilege, protect the

legitimate interests of the government, and ensure fairness to the defense. The

court can then make a properly informed decision on appellant‘s motion for a new

trial.