United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 18, 1999 Decided December 21, 1999
No. 98-3146
United States of America,
Appellee
v.
Walter J. Bowie,
Appellant
Consolidated with
No. 99-3027
Appeals from the United States District Court
for the District of Columbia
(98cr00008-01)
Paul L. Knight, appointed by the court, argued the cause
and filed the briefs for appellant.
Barbara A. Grewe, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Wilma A.
Lewis, U.S. Attorney, and John R. Fisher and Elizabeth
Trosman, Assistant U.S. Attorneys. Mary-Patrice Brown,
Assistant U.S. Attorney, entered an appearance.
Before: Sentelle and Randolph, Circuit Judges, and
Buckley, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge Randolph.
Randolph, Circuit Judge: As the rules governing criminal
trials multiply, even the simplest prosecution can generate a
host of legal errors. We have before us a three-witness case,
charging unlawful possession of a firearm and assault on two
police officers. Yet there are problems with the indictment,
with the government's failure to disclose evidence to the
accused, with the standard used to assess the effect of this,
and with the sentence. The case must be remanded, at least
for resentencing, as the government now acknowledges.
Among the open questions is whether there must also be a
new trial.
I
Walter J. Bowie went to trial in March 1998 on a three
count indictment. The first count charged that, as a convict-
ed felon, he unlawfully possessed a firearm. See 18 U.S.C.
s 922(g)(1). The other counts charged him with assaulting,
resisting, opposing, impeding and interfering with a police
officer "while armed with a deadly or dangerous weapon," in
violation of local law. Each of these two counts closed with
the same parenthetical: "(Assaulting, Resisting, or Interfer-
ing with a Police Officer While Armed With a Dangerous
Weapon, in violation of Title 22, District of Columbia Code,
Sections 505(b) and 3202(a)(1))".
The prosecution and defense stipulated to Bowie's status as
a convicted felon. The district court denied a motion to
suppress and trial commenced. The prosecution called Lon-
nie Moses and Paul Riggins, both police officers, and an
expert witness. The defense called no one. Officer Moses
testified that he saw Bowie on the street receiving money
from an unidentified man and handing the man something in
return. He told officer Riggins what he had witnessed. The
officers approached the men, Moses wearing a vest with the
word "Police" across the front, Riggins in full uniform. The
unidentified man walked away. When Moses called out,
Bowie came toward the officers. As Moses reached for
Bowie's arm, Bowie knocked the officer's hand away and then
shoved him in the chest. A struggle ensued. According to
Moses, as he and Riggins were wrestling Bowie to the
ground, trying to handcuff him, Bowie kept reaching into his
waist area. When they finally subdued him, and stood him
up, Moses pulled up the front of Bowie's shirt and a loaded
.357 magnum--a large pistol--fell out, hitting Moses on the
shin. Officer Riggins's version of the events tallied with that
of Moses, except that Riggins testified the pistol fell out while
they were still struggling to get Bowie to the ground. The
government's expert testified that the pistol had been manu-
factured in Connecticut. The jury returned a verdict of
guilty on all counts.
About a month later, the prosecutor sent a letter to defense
counsel disclosing that Moses was under investigation by the
United States Attorney's Office regarding his testimony in an
unrelated case and that the investigation had begun before
Bowie's trial. This information had not been revealed before
trial although Bowie's attorney had requested the govern-
ment to provide all material and information covered by
Brady v. Maryland, 373 U.S. 83 (1963). Bowie's attorney
responded to the letter with a motion for a new trial. During
the hearing on the motion, more details emerged about the
investigation of officer Moses.
On January 14, 1998--the date will become important--
Moses testified in a suppression hearing before the Honor-
able A. Franklin Burgess of the Superior Court of the Dis-
trict of Columbia, the local trial court. The case bore the title
United States v. Davon Williams. When the hearing ended
after two days of testimony, Judge Burgess suppressed the
evidence, finding the defense witnesses more credible than
Moses.
As the chief prosecutor in the local and the federal courts,
the United States Attorney for the District of Columbia
maintains a computerized list of police officers who are under
investigation--the "Lewis list," after Lewis v. United States,
408 A.2d 303, 306 (D.C. 1979). Moses became the subject of
an investigation into the truthfulness of his testimony in the
Williams case on February 27, 1998. His name was added to
the Lewis list, when exactly is unknown, but the government
concedes it was before the start of Bowie's trial on March 10,
1998. The prosecutor explained that when she checked the
Lewis list sometime before Bowie's trial, she did not find
Moses's name and that she became aware of his listing only
when Moses called her three days after Bowie's conviction
saying "You may have a problem, you know, I just learned I
have been placed on the Lewis list."
At the hearing on Bowie's motion, the prosecutor and the
defense attorney treated the issue, not in terms of the
prosecutor's disclosure duty under Brady, but in terms of
newly-discovered evidence. The district court did the same,
denying the new trial motion because "(1) it is unlikely that
the newly discovered evidence upon which Mr. Bowie grounds
his motion--Officer Moses' testimony in and the surrounding
circumstances of the Devon Williams case--would be admissi-
ble at a new trial; (2) the new evidence is merely impeaching;
(3) the evidence is not of such a nature that in a new trial it
would probably produce an acquittal." United States v.
Bowie, No. 98-Cr-0008 (D.D.C. Nov. 5, 1998) (order denying
motion for a new trial).
II
Now that the case is on appeal, neither the government nor
the defense argues about whether the undisclosed information
constitutes newly discovered evidence. Both sides acknowl-
edge that Brady and the cases following it provide the
governing legal principles. These legal principles are as
follows. The Due Process Clause requires a prosecutor to
disclose, upon request, information favorable to the accused
"that is material to either guilt or to punishment." Brady,
373 U.S. at 87. Evidence affecting the credibility of govern-
ment witnesses is a category of exculpatory information po-
tentially within Brady's disclosure obligation. See Giglio v.
United States, 405 U.S. 150, 154 (1972). If the government
failed to disclose exculpatory evidence, a defendant is not
entitled to have his conviction overturned unless the evidence
was "material." United States v. Bagley, 473 U.S. 667, 674-
78 (1985); United States v. Agurs, 427 U.S. 97, 112 (1976).
Evidence is "material" only if " 'there is a reasonable proba-
bility that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different.' " Kyles
v. Whitley, 514 U.S. 419, 433-34 (1995) (quoting Bagley, 473
U.S. at 682 (opinion of Blackmun, J.)). A "reasonable proba-
bility" means the chances are high enough to undermine
confidence in the outcome. See Kyles, 514 U.S. at 434;
Strickler v. Greene, 119 S. Ct. 1936, 1952 (1999).
It is worth pausing here to examine this standard--"rea-
sonable probability," a standard first suggested by Justice
Blackmun in his opinion for himself and Justice O'Connor in
Bagley, endorsed by three other Justices in Bagley (see 473
U.S. at 685 (White, J., concurring in part)), explained by
Justice Souter in his opinion for the Court in Kyles, reaffirm-
ed last term in Strickler, and criticized by Justice Souter in
his separate opinion in Strickler, see 119 S. Ct. at 1956
(Souter, J., concurring in part and dissenting in part). What
is a "reasonable probability"? Probability is often expressed
in terms of percentages, with 100% representing certainty.
We know, because the Supreme Court has told us, that a
"reasonable probability" can be less than 50.01%. In other
words, to reverse a conviction for a Brady violation, it does
not have to be more likely than not that the defendant would
have been acquitted had the evidence been disclosed. See
Kyles, 514 U.S. at 434. We are also sure that a "reasonable
probability" is somewhat greater than 1%. How much great-
er? Enough, the Supreme Court says, to "undermine confi-
dence in the verdict," id. at 435, which may lead us in a circle:
one cannot be confident of the outcome when there is a
"reasonable" probability that it may be wrong, and a "reason-
able" probability is one high enough to undermine confidence
in the outcome. Fortunately, we do not need to face the
quandary this poses. Our confidence in Bowie's conviction is
not shaken by the government's post-trial revelation.
The government's nonfeasance is clear enough. The prose-
cution had a duty, under Brady, to provide defense counsel
with the evidence about Moses before trial and it failed to
carry out its duty. This much the government admits. Its
defense of Bowie's conviction proceeds on another ground--
that the undisclosed evidence would not have been admissible,
and hence could not possibly be "material." The government
is right about the admissibility of the evidence. Bowie's
counsel could not have introduced evidence from the Davon
Williams suppression hearing, whether in the form of live
witnesses or a transcript. Moses was only under investiga-
tion; he had not been convicted of perjury. Rule 608(b) of
the Federal Rules of Evidence states: "Specific instances of
the conduct of a witness, for the purpose of attacking or
supporting the witness' credibility, other than conviction of a
crime as provided in rule 609, may not be proven by extrinsic
evidence." See 28 Charles A. Wright & Victor J. Gold,
Federal Practice and Procedure s 6117, at 80 (1993).
Admissibility of extrinsic evidence is one thing, cross-
examination of the witness another. Our opinion in United
States v. Cuffie, 80 F.3d 514, 517 (D.C. Cir. 1996), recognizes
as much. Thus, to refute Bowie's contention that the undis-
closed information was "material" in the Brady sense, it is not
enough to show that the transcript of the Davon Williams
hearing would be inadmissible. The Brady information po-
tentially would have opened up a line of cross-examination
going to Moses's credibility. To this, the government re-
sponds that there is no guarantee that such questioning would
be allowed; a trial judge has considerable discretion under
Rule 403 of the evidence rules. But certainty is not neces-
sary and we believe that, at a minimum, the judge would have
permitted the defense to question Moses about his knowledge
of the United States Attorney's investigation. See United
States v. Abel, 469 U.S. 45, 51 (1984). Even if Moses said he
did not know, the trial judge might also have allowed ques-
tioning about whether Moses feared that an investigation was
in the offing, as well he might have in light of the Davon
Williams proceedings. Even so, the requisite "reasonable
probability" of Bowie's acquittal scarcely follows.
Suppose Moses answered affirmatively when asked ques-
tions probing his knowledge or fear of an investigation by the
United States Attorney. Would this show the officer's bias?
Bias can manifest itself in hostility to one side, but it can also
take the form of favoring a litigant. See United States v.
Schaffer, 183 F.3d 833, 852 (D.C. Cir. 1999). Bowie's counsel
thinks he could establish bias, because the jury would believe
that the officer shaded his testimony in order to curry favor
with his investigators. That is one possibility, but not the
only one. The jury might think instead that Moses, knowing
he was under investigation in another case, would be careful
not to worsen his predicament, would be punctilious this time
around, would not shade the truth in the slightest respect.
The question remains--how far could cross-examination go
in destroying Moses's credibility? And if it were destroyed,
how high is the probability the jury would have acquitted the
defendant? We think not very, even if the questioning pro-
ceeded like this:
Defense counsel: Officer Moses, you testified in the
Superior Court in the Davon Williams case, did you not?
Officer Moses: Yes.
Defense counsel: That was a suppression hearing in
January of this year, a proceeding about a search and
seizure you carried out?
Officer Moses: Yes.
Defense counsel: And you swore to tell the truth, the
whole truth, and nothing but the truth, just as you did
here today?
Officer Moses: Yes.
Defense counsel: Now the Superior Court judge
ruled against the government in the Williams matter?
Officer Moses: True.
Defense counsel: The judge ruled that way because
he did not believe you?
Prosecutor: Objection. [Out of the presence of the
jury.] Defendant has not established that Moses was
untruthful in the prior case. All the judge said on this
score was that he found the defense witnesses more
credible. This officer does not know what was in the
judge's mind. The jury in this case is the sole judge of
the credibility of the witness. What a judge in another,
totally unrelated proceeding thought about this witness
has no bearing on this case. Putting that information
before the jury tends to usurp their fact finding function.
More than that, it will--in the terms of Rule 403 of the
evidence rules--confuse and mislead them.
Defense counsel: Your honor, this is crucial to our
defense. The judge must have found that Moses lied,
otherwise he would have denied the suppression motion.
Moses wasn't convicted of perjury, to be sure, but the
judge's finding amounts to the same thing.
The Court: Objection sustained. The jury will disre-
gard the question. [See United States v. Lopez, 944 F.2d
33, 38 (1st Cir. 1991) (holding that "the credibility assess-
ment made by the presiding judge at an unrelated trial
would have entailed a grave risk that the jury might
abrogate its exclusive responsibility to determine the
credibility of the testimony given by the officer at appel-
lant's trial"); see also Fed. R. Evid. 608(a) (providing that
opinion evidence attacking the credibility of a witness
must be limited to character for untruthfulness).]
Defense counsel: Now after the Williams matter end-
ed, you were worried that the U.S. Attorney might
investigate you for perjuring yourself in that case?
Officer Moses: No, I wasn't worried at all because I
told the truth then and I'm telling the truth now.
Defense counsel: Well, the fact is that the United
States Attorney is now investigating you for perjury?
Officer Moses: That's news to me. [The prosecutor
in this case told the judge that, in her post-trial conversa-
tion with Moses, the officer indicated that he did not
know about his name being on the Lewis list until after
Bowie's conviction.]
Defense counsel: Let me show you defense exhibit 1,
marked for identification. [A copy of the Lewis list.]
Officer Moses do you know what the Lewis list is?
Prosecutor: Objection. [Out of the presence of the
jury.] You honor, the whole purpose of allowing this line
of cross-examination is to establish that officer Moses
was coloring his testimony for the prosecution, in order
to gain favor with our office so that we would drop our
investigation of him or exonerate him. I don't agree
with the theory, but if he didn't even know of the
investigation, the defense theory collapses anyway. So
defense counsel should not now be allowed to get before
the jury the fact that we are conducting an investigation.
Defense counsel: Judge, I need to probe the truthful-
ness of this officer's claim that he did not know he was on
the list. He's denied knowing that. I should not have to
accept that response. The only way I can test his candor
is to show him the list and get him to acknowledge that
he's on it. Then the jury can decide for itself whether
he's telling the truth.
The Court: I'll sustain the objection. Those on the
list are not normally told they are being investigated. It
would be highly unusual for an officer to know this. He
said he didn't know. You asked the question and now
you must accept the answer.
We do not suggest that cross-examination could have pro-
ceeded in no other way, but only that this hypothetical
transcript is quite plausible. (At oral argument, Bowie's
counsel could offer no other line of questioning.) When the
undisclosed Brady material consists of impeachment evi-
dence, a court seeking to determine the probable impact of
the violation must form some idea about how effectively the
evidence could have been used in cross-examination. Of
course, it is hard to know what effect such questioning would
have had on the jury's assessment of Moses's truthfulness
and of Bowie's guilt. In that respect, this case differs mark-
edly from Cuffie, in which the government failed to disclose
that its critical witness--a co-defendant who had pled guilty--
had committed perjury in another proceeding. See 80 F.3d at
517-19. Here, the most one can say is that Moses was under
investigation for perjury because another judge found oppos-
ing witnesses more credible than him.
If the cross-examination would have led the jury simply to
discredit Moses's testimony, we still are not convinced that
this would give rise to any significant probability of acquittal.
In view of the other evidence against the defendant, the jury
could acquit only if it took the added step of believing that the
truth must be opposite of what Moses had told them. See
United States v. Zeigler, 994 F.2d 845, 848-49 (D.C. Cir.
1993). Only then could a thinking jury entertain a reasonable
doubt of Bowie's guilt. Only then would the jury have before
it two opposite versions of what transpired, one from its
disbelief of Moses (the defendant possessed no pistol and he
did not commit an assault), the other from officer Riggins
(the defendant possessed the pistol and committed the as-
saults). The point here is not simply that Riggins's testimo-
ny, standing alone, would be sufficient to sustain the convic-
tion. It would be, but "the materiality inquiry is not just a
matter of determining whether, after discounting the inculpa-
tory evidence in light of the undisclosed evidence, the remain-
ing evidence is sufficient to support the jury's conclusions."
Strickler, 119 S. Ct. at 1952. Rather, the point is that officer
Riggins--whose credibility was unimpaired--testified to pre-
cisely the same events as Moses and, in all important re-
spects, agreed with him. True, Moses and Riggins disagreed
on when the gun fell out of Bowie's pants--during the scuffle,
or after they had handcuffed him--but this is of no particular
help to the defense. Both officers agreed that Bowie pos-
sessed the pistol and that he assaulted and impeded them,
which made out Bowie's guilt.
How likely is it that the cross-examination of Moses would
have been devastating? Not very, even if the Perry Mason of
our day were defending Bowie. Federal Rule of Evidence
801 gave the prosecution a ready means of rehabilitating
Moses on redirect: a witness's prior consistent statement is
not hearsay when it is "offered to rebut an express or implied
charge against the [witness] of recent fabrication or improper
influence or motive...." The Davon Williams hearing,
which led to Moses winding up on the Lewis list, concluded on
January 14, 1998. Yet by then Moses had already testified in
a preliminary hearing in this case, on December 19, 1997, and
before the grand jury on January 6, 1998. His testimony on
both of those occasions did not vary in any meaningful way
from his testimony at Bowie's March 1998 trial. Knowing
this, it is unlikely--too unlikely--that the jury would have
believed that Moses slanted his trial testimony because he
knew of, or feared, an investigation by the U.S. Attorney
regarding his testimony in the Davon Williams case. And
even if the most effective cross-examination had convinced
the jury that Moses was not to be trusted, the unimpeached
testimony of officer Riggins would remain to bolster Moses
and to convince that, whatever happened in the Superior
Court, here the jury could believe beyond any reasonable
doubt that Bowie possessed the pistol and that he attacked
the two officers.
In sum, Bowie has not shown to our satisfaction that if the
evidence wrongfully withheld had been disclosed, there was a
reasonable probability the jury would have acquitted him. In
coming to this conclusion, we have been mindful of our
responsibility to evaluate the impact of the undisclosed evi-
dence not in isolation, but in light of the rest of the trial
record. See Agurs, 427 U.S. at 112.
Thus far we have confined our discussion to the trial phase
of this case. Bowie faintly suggests, in a caption in his reply
brief but not in the body, that we ought to consider as well
whether the suppression hearing might have come out the
other way. (Moses was the government's only witness at the
hearing.) This is too little too late. Too little because it is
hardly clear that the Brady line of Supreme Court cases
applies to suppression hearings. Suppression hearings do not
determine a defendant's guilt or punishment, yet Brady rests
on the idea that due process is violated when the withheld
evidence is "material either to guilt or to punishment," 373
U.S. at 87. Too late because Bowie raised the question for
the first time in his reply brief and then only obliquely. See
Rollins Environmental Services (NJ) Inc. v. EPA, 937 F.2d
649, 652 n.2 (D.C. Cir. 1991); Fed. R. App. P. 28(a)(6). We
therefore will not decide the issue.
III
We mentioned in the opening a problem with the indict-
ment. It is this. The last two counts charged assault on a
police officer while armed with a deadly weapon and cited
D.C. Code ss 22-505(b) and 22-3202(a)(1). Section 22-505(a)
spells out the offense of assaulting or impeding a police
officer, which carries a maximum of five years' imprisonment,
while s 22-505(b) enhances the penalty to a maximum of ten
years if the defendant "uses a deadly or dangerous weapon"
in committing the offense. Bowie had a weapon, but even on
the officer's version of events he did not get around to using
it. The "while armed" language in the indictment comes from
s 22-3202(a)(1), a sentencing enhancement provision. A de-
fendant who commits certain offenses while armed will have
his sentence increased. The government now concedes that
assault on a police officer is not one of the predicate offenses.
Where does this leave us? The government tells us that
the citation to s 22-505(b) was a typographical error, that the
grand jury meant to refer to s 22-505(a), that Bowie clearly
was guilty of two violations of this provision, one relating to
officer Moses, the other to officer Riggins. Furthermore, the
trial judge never instructed the jury that to convict, it must
find that Bowie used his pistol, an instruction s 22-505(b)
demanded. But when it came to sentencing, the judge ap-
plied s 22-505(b) and meted out a sentence of 31/2 to 10 years'
imprisonment, a sentence not permissible under s 22-505(a).
Unraveling this tangle yields these consequences. First,
an error in an indictment's citation "shall not" be a ground for
reversal if the error "did not mislead the defendant to the
defendant's prejudice." Fed. R. Crim. P. 7(c)(3). Here, Bowie
suffered no prejudice. His defense, presented through his
counsel's cross examination of the prosecution witnesses, lost
no force on account of the miscitation. And even if the grand
jury intentionally cited s 22-505(b), even if, that is, this was
no mere typographical error, the offense laid out in
s 22-505(a) was a lesser included offense, for which Bowie
was properly convicted. Assaulting and impeding a police
officer under subsection (a) is necessarily included within
subsection (b). The wording of s 22-505(b) makes this clear:
"Whoever in the commission of any such acts [those described
in subsection (a)] uses a deadly or dangerous weapon shall be
imprisoned not more than 10 years." The federal rule, like
the District of Columbia rule, is that a "defendant may be
found guilty of an offense necessarily included in the offense
charged," Fed. R. Crim. P. 31(c); D.C. Super. Ct. R. Crim. P.
31(c).
We are never bound to accept the government's confession
of error. Young v. United States, 315 U.S. 257, 258 (1941)
(citing Parlton v. United States, 75 F.2d 772 (D.C. Cir. 1935));
United States v. Pryce, 938 F.2d 1343, 1351-52 (D.C. Cir.
1991) (Randolph, J., concurring). We do so here for obvious
reasons. Bowie's sentence on the assault counts will be
vacated and the case remanded for resentencing in accor-
dance with s 22-505(a). In pronouncing a new sentence for
Bowie's local law offenses, the trial judge will not be bound by
federal Sentencing Guidelines. United States v. Cutchin, 956
F.2d 1216, 1219 (D.C. Cir. 1992).
III
All that remains is Bowie's challenge to his sentence of 120
months' imprisonment on the federal charge. This he oppos-
es on the basis that the trial judge erred in granting upward
departures for "possession of a firearm," see U.S.S.G.
s 2K2.1(b)(5), and "official victim," see id. s 3A1.2. As he
sees it, the "official victim" enhancement did not apply be-
cause the assault did not "creat[e] a substantial risk of serious
bodily injury." Id. The trial judge found, and the evidence
amply supports the finding, that Bowie was attempting to pull
the pistol from his waistband. His assault therefore certainly
did involve a risk of serious bodily injury. The "official
victim" adjustment raised Bowie's offense level to 27 (Bowie
had two prior felony convictions for crimes of violence),
resulting in a sentencing range of 120 to 150 months. Be-
cause the maximum sentence for felony gun possession is 120
months--the sentence Bowie received--any challenges to ad-
ditional enhancements are of no moment. Even so, the trial
judge committed no error in making a "possession of a
firearm" adjustment. Bowie contends that he did not possess
the gun "in connection" with the assault because he did not
use the gun during the assault. See id. s 2K2.1. But the
provision refers not simply to use, but to use and possession
of a firearm in connection with another felony offense. See
id. Bowie's possession of the weapon emboldened him, or
appeared to, and his reaching for the weapon showed his
intent to use it to facilitate his felony assault on the officers.
See United States v. Sturtevant, 62 F.3d 33, 34-35 (1st Cir.
1995). The connection between the possession of the weapon
and the assault was thus established.
Affirmed in part and vacated and remanded in part.