United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 12, 2010 Decided December 28, 2010
No. 09-3068
UNITED STATES OF AMERICA,
APPELLEE
v.
FRANKLIN H. PETTIFORD,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:06-cr-00162)
Mary E. Davis argued the cause for the appellant.
Jonathan P. Hooks, Assistant United States Attorney,
argued the cause for the appellee. Ronald C. Machen Jr., United
States Attorney, and Roy W. McLeese III, Mary B. McCord and
Mary Ann Snow, Assistant United States Attorneys, were on
brief.
Before: GINSBURG, HENDERSON and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: In November
2006, a jury convicted Franklin Pettiford (Pettiford) of
possessing with intent to distribute cocaine base in violation of
2
21 U.S.C. § 841(a)(1) and 841(b)(1)(B)(iii). Pettiford,
contending the Government had failed to disclose exculpatory
evidence in its possession in violation of Brady v. Maryland,
373 U.S. 83 (1963), moved for a new trial. The district court
denied his motion, concluding the undisclosed evidence was not
material. For the following reasons, we affirm.
I.
On May 11, 2006, Officer David Augustine of the District
of Columbia Metropolitan Police Department (MPD) stopped a
2003 Ford Expedition because of a burned-out headlight.1
Pettiford was the driver and sole occupant of the vehicle and
Augustine determined that its registration had expired.
Augustine let Pettiford go with a warning notice regarding the
headlight.
Four days later, on May 15, 2006,2 MPD officers James
Chastanet and Theodore Brosey stopped the same Ford
Expedition. Pettiford was again the driver and sole occupant.
This time, the officers arrested Pettiford for driving an
unregistered vehicle and searched the passenger compartment
incident to Pettiford’s arrest. In the center console, located
between the driver’s and passenger’s seats, Chastanet found a
clear plastic bag. The bag contained clusters of white, rock-like
substances, some of which were in ziploc bags. The police also
found in the console a digital scale, plastic gloves and
envelopes. The white, rock-like substances field-tested positive
for cocaine base.
1
Our decision in United States v. Pettiford, 517 F.3d 584 (D.C.
Cir. 2008), sets out much of the relevant factual and procedural
background of this case. We draw, at times verbatim, from that
decision in summarizing the background here.
2
All events occurred in 2006 unless otherwise noted.
3
On June 13, a federal grand jury indicted Pettiford on one
count of possessing with intent to distribute five grams or more
of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and
841(b)(1)(B)(iii). Pettiford’s first trial began on September 26
but mistried when the jury was unable to reach a unanimous
verdict. The case was reassigned to another judge and a second
trial commenced on November 27.
At trial, Officer Augustine first testified as to his stop of
Pettiford in the Ford Expedition on May 11, when Pettiford was
let go with a warning notice about the burned-out headlight.
Officer Chastanet then recounted the events leading up to and
following Pettiford’s arrest on May 15, including the discovery
of the plastic bag of drugs and the other paraphernalia in the
vehicle’s center console. Chastanet testified that, based on his
experience, he recognized the white, rock-like substances as
cocaine base. The parties stipulated to the analysis conducted
by a Drug Enforcement Administration chemist, which analysis
concluded the seized substances were 71% cocaine base and
weighed a total of 18.8 grams. MPD Detective Anthony
Washington, who qualified as an expert witness on the
distribution and use of narcotics, identified the substances seized
from Pettiford’s vehicle as cocaine base. Washington further
opined that the packaging of the cocaine base and the presence
of the digital scale and gloves were consistent with the
wholesale distribution thereof. The ziploc bags, he said,
contained “what we call eight balls, 3.5 grams which is an
eighth of an ounce” of cocaine base. Pettiford, 517 F.3d at 587
(citation omitted).
To buttress its proof that Pettiford knowingly possessed the
cocaine base in the console, and that he specifically intended to
distribute it, the Government moved in limine to introduce
4
evidence under Federal Rule of Evidence 404(b)3 that Pettiford
had possessed cocaine base with intent to distribute it on April
27, just two and one-half weeks before his May 15 arrest. Over
Pettiford’s objection, the court admitted the evidence of
Pettiford’s guilty plea to the earlier offense but, instead of
calling witnesses to the events of April 27, the Government,
with Pettiford’s agreement, read to the jury a redacted transcript
of his guilty plea.4 According to the transcript, the prosecutor in
that case proffered and Pettiford agreed to the following facts:
On the evening of April 27, MPD officers observed Pettiford
briefly converse with a person who appeared to give Pettiford an
unknown sum of money and who then followed Pettiford to a
nearby parking lot, where Pettiford reached into the front of his
pants, withdrew an item and tossed it to the ground in front of
the second person. The latter picked up the item and left. The
officers then watched Pettiford walk to a blue Mercedes, open
the front passenger door, reach inside, bend over into the
vehicle, withdraw, close the door and place an “unknown grassy
substance” by a nearby bush. Trial Tr. 194-98, United States v.
Pettiford, No. CR 06-162 (D.D.C. Nov. 27, 2006). The officers
subsequently stopped Pettiford and searched the Mercedes,
which was registered in his name. In the center console, the
police found 48 ziploc bags containing white, rock-like
substances that field-tested positive for cocaine. The MPD
placed Pettiford under arrest. Id.
3
Rule 404(b) permits evidence of “other crimes, wrongs, or acts”
to be admitted for the purpose of establishing, inter alia, intent and
knowledge.
4
In early November, between Pettiford’s first and second trials
in district court, he moved in superior court to withdraw his guilty
plea. His motion was pending at the time of his second trial in district
court.
5
After the Government concluded its case-in-chief in this
prosecution, the defense introduced a certified “Vehicle Record”
for the 2003 Ford Expedition indicating that, as of April 30, the
vehicle was registered to Marisa Ardelia Beam of Annandale,
Virginia. Pettiford, 517 F.3d at 587. Pettiford presented no
further evidence. Following closing arguments, the case was
submitted to the jury. On November 29, the jury returned a
guilty verdict.
Two months after Pettiford’s conviction here, the superior
court vacated Pettiford’s guilty plea as involuntary. On
February 15, 2007, Pettiford moved for a new trial, alleging that
the vacatur of his guilty plea in superior court constituted newly
discovered evidence under Federal Rule of Criminal Procedure
33(b)(1).5 The district court denied the motion and we affirmed.
Pettiford, 517 F.3d at 591-92.
Following vacatur of Pettiford’s guilty plea, the superior
court set trial for June 18, 2007 and later continued the trial date
to August 27, 2007. On August 27, the superior court again
continued the trial to give Pettiford time to review new
discovery material produced by the Government. Included in
the new material were photographs of the items the MPD
officers had removed from Pettiford’s Mercedes when they
searched it incident to his arrest on April 27. One photograph
showed a District of Columbia driver’s license belonging to
Covye Cousins. In Pettiford’s superior court trial, MPD Officer
Marc Wilkins, who had assisted in Pettiford’s April 27 arrest
and had driven Pettiford’s Mercedes from the scene of his arrest
to the police station, was the only witness who testified that the
license was found in, and removed from, Pettiford’s vehicle. Tr.
5
Rule 33 permits a court to “vacate any judgment and grant a
new trial if the interest of justice so requires.” Subsection (b) provides
that a new trial may be granted based on “newly discovered evidence.”
6
of Hr’g on Mot. for New Trial 7, 32-34, June 30, 2009.6 Neither
the Government nor Pettiford, however, asked Wilkins whether
the license was found in the center console with the drugs or
somewhere else in the vehicle.7 Pettiford was ultimately
acquitted in superior court on March 26, 2008.
Pettiford then filed a second new trial motion in district
court on August 25, 2008, alleging the Government’s failure to
timely disclose to him the photograph of Cousins’s driver’s
license constituted a Brady violation. The district court denied
Pettiford’s motion in a bench ruling on June 30, 2009. Pettiford
filed a timely notice of appeal on the same day.
II.
In Brady v. Maryland, the United States Supreme Court
held that the Due Process Clause “requires the government to
disclose, upon request, material evidence favorable to a criminal
defendant, including evidence held by law enforcement
officials.” United States v. Oruche, 484 F.3d 590, 596 (D.C.
Cir. 2007) (citing Brady, 373 U.S. at 87). The Government’s
failure to so disclose violates the Brady directive if three factors
exist: “The evidence at issue must be favorable to the accused,
either because it is exculpatory, or because it is impeaching;
[the] evidence must have been suppressed by the State, either
willfully or inadvertently; and prejudice must have ensued.”
United States v. Brodie, 524 F.3d 259, 268 (D.C. Cir. 2008)
(quoting Strickler v. Greene, 527 U.S. 263, 281-82 (1999)), cert.
6
The crime scene search officer who photographed the contents
of the vehicle testified that he did not remember the license being in
the car. Id. at 32-34.
7
Wilkins died sometime after Pettiford’s superior court trial. Id.
at 7. Pettiford’s superior court counsel submitted an affidavit in this
case in which he stated “[t]he driver’s license was near the cocaine in
the center console of the car.” Ferguson Aff. ¶ 5.
7
denied, 129 S. Ct. 1396 (2009). To satisfy the third
prong—prejudice—the withheld evidence must be material,
which means “there must be ‘a reasonable probability that, had
the evidence been disclosed to the defense, the result of the
proceeding would have been different.’ ” United States v.
Johnson, 519 F.3d 478, 488 (D.C. Cir. 2008) (quoting Strickler,
527 U.S. at 280). “A ‘probability’ reaches the level of
‘reasonable’ when it is high enough to ‘undermine confidence
in the verdict.’ ” United States v. Johnson, 592 F.3d 164, 170
(D.C. Cir. 2010) (quoting Kyles v. Whitley, 514 U.S. 419, 435
(1995)). “The defendant bears the burden of showing a
reasonable probability of a different outcome.” Johnson, 519
F.3d at 488 (citing Strickler, 527 U.S. at 291).
The Government concedes that the photograph of the
driver’s license is favorable to Pettiford and was not timely
disclosed to him. Accordingly, the materiality of the photograph
is the sole issue before us. “[T]he assessment of the materiality
of . . . evidence under Brady is a question of law” reviewed de
novo. Brodie, 524 F.3d at 268 (quoting Oruche, 484 F.3d at
595). If we find a Brady violation, “a new trial follows as the
prescribed remedy, not as a matter of discretion.” Id. (quoting
Oruche, 484 F.3d at 595).
Pettiford first seizes upon a stray statement made by the
district court in the course of a lengthy bench ruling on
Pettiford’s Brady motion, claiming the court found the
undisclosed photograph of the license material. See Tr. of Hr’g
on Mot. for New Trial at 42 (court stated that it considered “the
evidence of the driver’s license in the Mercedes to be material
in this case”). The court’s very next statement, however,
clarified that it did not find the photograph material within the
meaning of Brady. See id. (“But saying that, however, I cannot
find the probability of a new trial would result in a different
outcome. The reasonable probability sufficient to undermine[]
confidence in the outcome . . . .”). The court confirmed its
8
conclusion as it went on to explain its reasoning. See id. (“I do
not see that . . . finding another person’s license in the car would
be sufficient in the court’s mind to overcome the verdict in this
case, that it would be another verdict of acquittal if this evidence
had been available to him. I cannot find sufficient probability
that that would have occurred.”); id. at 43 (“So if the [404(b)
evidence] is minimized by—and the effect is reduced by the
evidence that there is a driver’s license of someone else found
in the car, I cannot find that that would mean that the result
would be probably different.”); id. at 44 (“But I cannot find that
the evidence [of Cousins’s driver’s license being found in the
Mercedes] is so drastic . . . [that it] would alter the outcome of
this case.”). When the ruling is read in its entirety, therefore, it
is plain that the district court did not find the photograph to be
material.
Next, Pettiford argues the district court failed to consider
certain relevant facts. First, he argues the court ignored the facts
that his first district court trial mistried and that he was acquitted
in superior court. Pettiford is mistaken. See id. at 35 (court
acknowledged first district court trial ended in hung jury); id. at
39 (court acknowledged Pettiford was acquitted in superior
court); id. at 43 (court considered “the acquittal in the Superior
Court and the affect [sic] that could have on a jury”); id. at 44
(“Another factor I considered was the first trial in this court was
a hung jury, but the same evidence was used at that time.”).
Pettiford also claims the district court failed to consider how
Pettiford could have used the photograph of the license if it had
been timely disclosed by, for example, requiring the MPD
officers to testify about his previous arrest rather than publishing
portions of his guilty plea transcript and cross-examining the
officers, including now-deceased Officer Wilkins, about where
9
in the Mercedes the license was located.8 Again, Pettiford is
mistaken. See id. at 43-44 (court explained that Pettiford’s
counsel, as trial strategy, agreed to the publishing of Pettiford’s
guilty plea alternative); id. at 44-45 (court noted that Officer
Wilkins “had testified previously” that the license was in the
Mercedes but had not specified where in the vehicle “so there is
the chance that there would be [] different testimony as to where
the license was. All we can say is there was testimony that it was
in the car according to one officer, and the other officers do not
recall it.”).
Finally, Pettiford argues the district court erroneously
weighed the strength of the overall evidence against him in
concluding the undisclosed license was not material under
Brady. The court, however, has a “responsibility to evaluate the
impact of the undisclosed evidence not in isolation, but in light
of the rest of the trial record.” United States v. Bowie, 198 F.3d
905, 912 (D.C. Cir. 1999) (citing United States v. Agurs, 427
U.S. 97, 112 (1976)); see also, e.g., Oruche, 484 F.3d. at 597-
601 (strength of overall evidence against defendant relevant in
finding no Brady violation).
The undisclosed evidence does not undermine the strength
of the evidence establishing Pettiford’s guilt of the drug offense
sub judice. Even without the 404(b) evidence of the April 27
arrest, there was ample evidence establishing Pettiford’s
8
Pettiford does not argue that the account of his April 27 arrest
would not have been admissible under Rule 404(b) had the photograph
been timely disclosed. Rather, he claims he would have required the
MPD officers to testify about that arrest. In any event, the district
court indicated that the evidence of Pettiford’s April 27 arrest would
have been admitted, whether via the guilty plea transcript or live
testimony. See Tr. of Hr’g on Mot. for New Trial at 44 (court
concluded undisclosed photograph did not “militate[] against”
admissibility of evidence of Pettiford’s April 27 arrest).
10
knowledge of and intent to distribute the drugs found in the
vehicle he was driving on May 15. Pettiford had been stopped
four days earlier while driving the same vehicle. He was the
driver and sole occupant of the vehicle both times, manifesting
his repeated use of the vehicle and thus his knowledge of its
contents. Incident to Pettiford’s May 15 arrest, the MPD
officers discovered a substantial amount of cocaine base in the
console, some of it individually packaged in ziploc bags, as well
as equipment commonly used to distribute cocaine, including a
digital scale and plastic gloves. That Pettiford’s May 15 arrest
came less than three weeks after his April 27 arrest and that both
times the police found cocaine base in the center console of the
vehicle Pettiford was driving provides strong evidence of his
knowledge and intent to distribute the cocaine base on May 15.9
Accordingly, we cannot conclude that the photograph of
9
As already noted, Pettiford does not challenge the admissibility
of the April 27 arrest evidence under Rule 404(b). Supra note 8. Nor
would timely disclosure of the license have significantly undermined
that evidence; although Pettiford contends the presence of Cousins’s
driver’s license in his Mercedes calls into question whether he knew
the cocaine base was there, the only thing he claims he would have
done differently had he known of the photograph was to insist that the
April 27 events be presented to the jury through live testimony instead
of by publishing the guilty plea transcript. In fact, the evidence of the
April 27 events might have had more impact if, instead of being read
to the jury in a brief, “matter-of-fact way,” Pettiford, 517 F.3d at 591,
it had been introduced through the testimony of the officers who
witnessed Pettiford engage in an apparent drug sale, walk to his
Mercedes, reach inside and place a grassy substance by a nearby bush
before arresting him and finding cocaine base in the console. There
was thus sufficient evidence from which the jury could conclude
Pettiford knowingly possessed with intent to distribute the cocaine
base on April 27 even if the photograph of Cousins’s license had been
timely disclosed and Officer Wilkins had testified the license was
found in the center console with the drugs.
11
Cousins’s driver’s license is material under Brady because there
is no “reasonable probability” the jury would have reached a
different result with knowledge of the photograph or that the
jury’s ignorance of the photograph “undermine[s] confidence in
the verdict.” Johnson, 592 F.3d at 170 (quoting Kyles, 514 U.S.
at 435).
For the foregoing reasons, we affirm the district court’s
denial of Pettiford’s new trial motion.
So ordered.