United States v. Johnson

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 11, 2007 Decided March 11, 2008

No. 06-3167

UNITED STATES OF AMERICA,
APPELLEE

v.

ABDUL C. JOHNSON,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 03cr00211-01)

Jenifer Wicks argued the cause and filed the briefs for
appellant.

John P. Mannarino, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Jeffrey A.
Taylor, U.S. Attorney, and Roy W. McLeese, III, Assistant U.S.
Attorney.

Before: SENTELLE, Chief Judge, GARLAND, Circuit Judge,
and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GARLAND.
 2

GARLAND, Circuit Judge: Defendant Abdul Johnson
appeals from his conviction on firearms and narcotics charges.
He contends that the gun and drug evidence that the government
used against him was the fruit of an unlawful detention, that the
improper admission of a previous firearms conviction prejudiced
the outcome of his trial, that the government did not introduce
sufficient evidence to prove that the cocaine base the police
seized from him was crack cocaine, and that the district court
erred in not granting a new trial on the grounds of newly
discovered evidence and nondisclosure of Brady material. We
reject Johnson’s challenges and affirm the judgment of the
district court.

I

On May 20, 2003, a grand jury charged Johnson with four
illegal acts: (1) possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1); (2) possession 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); (3) using, carrying, and
possessing a firearm in relation to a drug trafficking offense, in
violation of 18 U.S.C. § 924(c)(1); and (4) simple possession of
marijuana, in violation of 21 U.S.C. § 844(a). In the fall of
2003, the district court held a hearing on Johnson’s motion to
suppress evidence arising out of the stop that led to his arrest.
At the hearing, the government introduced the testimony of
Metropolitan Police Department (MPD) Officer Jason Pearce,
who stated as follows.

On April 9, 2003, Pearce and Officer Steven Franchak,
Investigator Steven Manley, and Detective David Dessin were
patrolling a high-crime area in Northeast Washington, D.C., in
an unmarked Jeep. An undercover officer patrolling in the same
area radioed to inform them that a blue Buick was “driving
crazy” and was heading toward 2nd and Bryant streets. Shortly
 3

thereafter, the officers saw defendant Johnson pull up in the
Buick, double-park, get out of the car while leaving it idling, and
approach an unoccupied green Chrysler that was parked on the
other side of the street.

As the officers pulled up in their Jeep, they saw Johnson get
into the Chrysler’s driver’s seat, lean over, and begin examining
something in the vicinity of the passenger’s seat, with six inches
of his arm extended underneath the dashboard. When the
officers got out of their car, Johnson looked up and noticed
them. His eyes then “widen[ed] and his mouth kind of f[ell] half
open and he start[ed] fumbling with the driver’s side door.”
Mot. Hr’g Tr. 15 (Oct. 16, 2003). He “looked very shocked and
. . . it took him several spastic actions to get the door open and
he darted up out of the car.” Id. at 55. Pearce then directed
Johnson to sit back down in the car. As he did so, Johnson
began reaching quickly around his waist area. Concerned,
Pearce asked him to step out of the car, and when he did, Pearce
smelled alcohol on his breath. Johnson then reached toward his
waistband again, and Pearce directed him to put his hands on top
of the car. Johnson, who seemed unsteady on his feet, complied.
Pearce then saw a plastic cup of reddish amber liquid on the
passenger side of the Chrysler. At almost the same time, Pearce
heard Investigator Manley say that he could see an open
container of alcohol inside the blue Buick.

Pearce handcuffed Johnson and informed him that he was
being arrested for “POCA” (possession of an open container of
alcohol in an automobile). When Pearce asked Johnson to turn
around, Johnson pressed his right side against the car. Manley
then approached to assist Pearce; after a short struggle, Manley
lifted Johnson’s shirt, revealing a semiautomatic handgun in his
waistband. Franchak ran over to grab the gun, and Johnson
exclaimed: “Yeah, I carry a gun. I got shot in my neck. They
 4

killed my man. You guys never found who did that. I’ll carry
a gun for the rest of my life.” Id. at 21.

Officer Pearce searched Johnson and found two ziplocks of
a “green plantlike substance” in his breast pocket. Pearce also
recovered $1883 in cash from Johnson’s pockets and several
ziplocks containing “white chunks of rocklike substance” from
the Chrysler’s glove compartment. When Pearce called to
another officer that he had found some “crazy candy” in the car,
Johnson immediately yelled out: “Crack, I know we didn’t find
any crack in my car. I know we didn’t find any crack in my car.
I bought that car from my dad three years ago. There’s no crack
in that car.” Id. at 22-24.

Because a crowd had started to gather, the officers decided
to remove Johnson from the scene in their Jeep. At one point,
Johnson complained that the handcuffs were too tight, and
Manley, who was sitting next to him, shifted their position.
During the ride to MPD’s major narcotics branch, Johnson
“start[ed] moving and talking and [was] animated.” Id. at 26.
When they arrived at the branch, the officers removed Johnson
from the Jeep and discovered four ziplocks containing a white,
rock-like substance and one ziplock containing a green, plant-
like substance in the seatbelt reservoir where he had been sitting.
Franchak then searched the area behind Johnson’s seat and
recovered 15 more bags filled with a white, rock-like substance
and one more bag filled with a green, plant-like substance. The
ziplock bags containing the white substance later field-tested
positive for cocaine, and those containing the green substance
tested positive for THC, the active ingredient in marijuana.

On the second day of the suppression hearing, the defense
introduced the testimony of Nancy Jones, a resident of the area
where Johnson was arrested. Jones stated that Johnson was a
friend of her niece and that she had known him for seven or
 5

eight years. She testified that, on April 9, 2003, she saw him
driving his blue Buick. The police then “came up with their
guns drawn on both sides and made him get out of his car.”
Mot. Hr’g Tr. 82 (Nov. 10, 2003). “They took him over directly
across the street on another car and . . . his pants had fell down
and they were searching him.” Id. Jones told one of the
officers, “you all don’t have to do him that rough.” Id.

After listening to the testimony of both Pearce and Jones,
the district court credited Pearce. The court concluded that
neither the stop nor the search violated the Fourth Amendment,
and it denied Johnson’s motion to suppress evidence. Id. at 107.

At Johnson’s trial, which began on April 23, 2004, the
government offered testimony from Pearce, Manley, Franchak,
and Dessin that was in accord with Pearce’s testimony at the
suppression hearing. Pearce also testified that the substance he
found in the glove compartment was “crack cocaine.” Trial Tr.
75 (Apr. 26, 2004). Pearce, Manley, and Franchak testified that
they saw a total of 19 ziplocks of a rock-like substance and two
ziplocks of a weed-like substance in the Jeep after Johnson had
been removed. The jury also heard from a narcotics expert,
Detective Tyrone Thomas, who stated that the white, rock-like
substance recovered in this case was street-level crack cocaine
and that it had a total street value of $6660.

In addition to this testimony, the parties stipulated that a
DEA chemist had determined that the controlled substances
seized on April 9, 2003 were cocaine base and marijuana. The
chemist analyzed 5.8 grams of cocaine base (from the three
ziplocks seized from the Chrysler’s glove compartment), 7.9
grams of cocaine base (from the four ziplocks seized from the
Jeep’s seatbelt reservoir), 34.1 grams of cocaine base (from the
15 ziplocks seized from the area of the Jeep behind Johnson’s
seat), and 5.73 grams of marijuana. The parties further
 6

stipulated that Johnson had previously been convicted of a crime
punishable by more than one year’s imprisonment and that the
seized handgun was operable and had an interstate nexus.

The government also introduced testimony, from MPD
fingerprint examiner Diane Downing, that Johnson’s fingerprint
was on the magazine of the gun taken from his waistband.
Finally, pursuant to a pretrial ruling by the court, the parties
stipulated that “on August 25, 1997, the defendant Abdul
Johnson was convicted of carrying a pistol without a license and
possession of cocaine in the Superior Court of the District of
Columbia,” and that Johnson had also been convicted of
possession with intent to distribute cocaine in 1992. Trial Tr. 4-
5 (Apr. 27, 2004).

Johnson did not testify or call any witnesses. On April 28,
2004, the jury convicted him on all counts. Thereafter, the
district court denied his motion for a new trial and sentenced
him to 136 months’ imprisonment. Johnson timely appealed and
now raises four challenges to his conviction.

II

Johnson’s first contention is that the district court erred in
denying his motion to suppress the gun and drug evidence
because the stop that led to his arrest violated the Fourth
Amendment. The stop in question began with Officer Pearce’s
direction to Johnson to “sit back down” as he tried to dart out of
the Chrysler. Mot. Hr’g Tr. 16 (Oct. 16, 2003). Johnson does
not separately challenge the searches that yielded the gun and
drugs; he contends only that these items were the unlawful fruits
of a stop that was unreasonable under Terry v. Ohio, 392 U.S. 1
(1968). See Appellant’s Br. 12, 23-24.
 7

In Terry, the Supreme Court held that “the police can stop
and briefly detain a person for investigative purposes if the
officer has a reasonable suspicion supported by articulable facts
that criminal activity ‘may be afoot,’ even if the officer lacks
probable cause.” United States v. Sokolow, 490 U.S. 1, 7 (1989)
(quoting Terry, 392 U.S. at 30). We decide de novo whether the
police had reasonable suspicion for a stop, but we review the
district court’s “findings of historical fact only for clear error”
and give “due weight to inferences drawn from those facts.”
Ornelas v. United States, 517 U.S. 690, 699 (1996). We also
review the district court’s credibility determinations only for
clear error, see United States v. Broadie, 452 F.3d 875, 880
(D.C. Cir. 2006), and may not overturn them unless the court
has credited “exceedingly improbable testimony,” United States
v. Mapp, 476 F.3d 1012, 1017 (D.C. Cir. 2007) (quoting United
States v. Adamson, 441 F.3d 513, 519 (7th Cir. 2006)).

Johnson first asks us to reverse the district court because it
credited Officer Pearce’s testimony (that the police did not
approach Johnson until he was inside the green Chrysler) over
Nancy Jones’ testimony (that she saw the police force Johnson
out of the blue Buick and take him across the street to another
car). Because there was nothing improbable about Pearce’s
testimony, we find no clear error in the court’s decision to credit
it.

Johnson next argues that, even accepting the officer’s
version of the events, the stop nonetheless transgressed Terry.
In response, the government urges us to hold that the stop was
lawful on the ground that Johnson was committing a parking
violation -- double-parking -- at the time of the stop. Because
the police may stop an automobile when they have probable
cause to believe that a traffic violation has occurred, see Whren
v. United States, 517 U.S. 806, 810 (1996), the government
argues that the same should be true when the police witness a
 8

parking violation, Gov’t Br. 34. Although other circuits have so
held, see United States v. Choudhry, 461 F.3d 1097, 1103-04
(9th Cir. 2006); Flores v. City of Palacios, 381 F.3d 391, 402-03
(5th Cir. 2004); United States v. Copeland, 321 F.3d 582, 594
(6th Cir. 2003), this circuit has not yet decided the question, see
United States v. Spinner, 475 F.3d 356, 358 (D.C. Cir. 2007)
(assuming without deciding that the defendant’s parking
violation justified his initial detention).

Nor need we decide that question in order to resolve this
case, as the officers’ decision to stop Johnson was reasonable
under the “totality of the circumstances test” normally employed
in a Terry analysis. United States v. Arvizu, 534 U.S. 266, 273
(2002); see Sokolow, 490 U.S. at 9-10; United States v.
Edmonds, 240 F.3d 55, 59-60 (D.C. Cir. 2001). The police
received a report about a blue Buick “driving crazy” in “a high
violence and high drug transaction area.” Mot. Hr’g Tr. 12-13
(Oct. 16, 2003). They then observed Johnson quickly drive by,
double-park, leave the car idling, cross the street, and get into an
unoccupied green Chrysler. After the officers pulled up, they
watched Johnson reach under the Chrysler’s dashboard; when he
noticed their presence, he looked shocked, fumbled with the
door, and attempted to dart out of the car. Together, these
articulable facts supported the officers’ “reasonable suspicion
that [Johnson] was engaged in wrongdoing when they
encountered him” in the Chrysler. Sokolow, 490 U.S. at 7; see
Illinois v. Wardlow, 528 U.S. 119, 124 (2000); Terry, 392 U.S.
at 30; United States v. Dykes, 406 F.3d 717, 720 (D.C. Cir.
2005); Edmonds, 240 F.3d at 57, 60.

III

Johnson’s second challenge concerns the district court’s
decision to admit evidence of his 1997 Superior Court
conviction for carrying a pistol without a license.
 9

A

At the pre-trial motions hearing, the government argued that
the 1997 conviction was relevant to prove Johnson’s knowledge,
intent, and absence of mistake as to his possession of the gun in
the present case. The defense responded that the court should
bar evidence of the conviction under Federal Rule of Evidence
404(b), as improper character evidence, or under Rule 403, as
unduly prejudicial. Rule 404(b) provides that “[e]vidence of
other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity
therewith,” but that it may “be admissible for other purposes,
such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.” FED.
R. EVID. 404(b). Evidence that is admissible under Rule 404
may nonetheless be excluded by the trial court under Rule 403
“if its probative value is substantially outweighed by the danger
of unfair prejudice.” FED. R. EVID. 403; see Old Chief v. United
States, 519 U.S. 172, 182 (1997); United States v. Douglas, 482
F.3d 591, 600 (D.C. Cir. 2007).

Because the police witnesses testified that they recovered
the gun in this case from Johnson’s waistband, the defense
maintained that further evidence that Johnson knowingly and
intentionally possessed the weapon was inappropriate. The
district court rejected this argument, holding that the
government could introduce the prior conviction to prove
Johnson’s intent, knowledge, and absence of mistake. The court
ruled, however, that the prosecution could not put on evidence
regarding the facts underlying the conviction. It recommended
that the parties instead adopt a stipulation regarding the
conviction, and the parties did so. The stipulation was the only
 10

evidence of the 1997 conviction that was entered at trial.1 On
appeal, Johnson contends -- as he did in the district court -- that
the court erred under Rules 404(b) and 403 in admitting any
evidence regarding the prior conviction.

“We review a claim that a district court improperly admitted
evidence under Rule 404(b) solely to determine whether the
court abused its discretion.” United States v. Pindell, 336 F.3d
1049, 1056-57 (D.C. Cir. 2003). Because the “trial court is in
the best position to perform [the] subjective balancing” required
under Rule 403, its decision not to exclude evidence under that
rule “should be reviewed only for grave abuse.” United States
v. Cassell, 292 F.3d 788, 795-96 (D.C Cir. 2002) (internal
quotation marks omitted). If we conclude that the district court
erred in admitting evidence under either rule, our review --
when, as here, the defendant objected to admission at trial -- is
limited by the harmless error standard of Federal Rule of
Criminal Procedure 52(a). See United States v. Coumaris, 399
F.3d 343, 347 (D.C. Cir. 2005). Under that standard, we may
not correct the district court’s error unless it affected the
defendant’s “substantial rights.” FED. R. CRIM. P. 52(a). “[I]n
most cases [this] means that the error must have been
prejudicial: It must have affected the outcome of the district
court proceedings.” United States v. Olano, 507 U.S. 725, 734
(1993). When the error did not involve a constitutional right, it
is not prejudicial “unless it had a ‘substantial and injurious
effect or influence in determining the jury’s verdict.’” United
States v. Linares, 367 F.3d 941, 952 (D.C. Cir. 2004) (quoting
Kotteakos v. United States, 328 U.S. 750, 776 (1946)). The
government bears the burden of proving the absence of such
prejudice. Id.; see Coumaris, 399 F.3d at 347 n.1.

1
The same stipulation included an acknowledgment that Johnson
had previously been convicted of cocaine offenses in 1997 and 1992.
Johnson does not challenge that part of the stipulation on appeal.
 11

B

On appeal, the government concedes that the district court
erred in admitting proof of Johnson’s 1997 conviction. It does
so on the basis of this circuit’s decision in United States v.
Linares, which was issued a few weeks after the conclusion of
Johnson’s trial. In Linares, the defendant was likewise charged
with being a felon in unlawful possession of a firearm, and this
court held that the trial judge erroneously permitted the
government to present evidence that Linares had previously
possessed a handgun. At Linares’ trial, eyewitnesses testified,
as they did here, that they saw the gun on the defendant’s person
-- indeed, that he had held the gun in his hand and fired it.
“Given the evidence in this case,” the court said, “we do not
understand how Linares’s previous possession of a pistol makes
it any more likely that he knowingly possessed a gun this time.”
Linares, 367 F.3d at 946. “If the jury believed these
eyewitnesses, then Linares possessed the gun knowingly; if it
did not, then it should have acquitted based on the government’s
failure to prove possession rather than its failure to prove
knowledge.” Id.

Although the government concedes that the district court
wrongly admitted Johnson’s 1997 conviction under Linares, it
argues that this error was harmless. On this point, too, Linares
governs. Although the Linares court held that the admission of
the prior gun possession in that case was error, it nonetheless
found the error harmless. In light of “multiple and consistent
eyewitness accounts” placing the gun in the defendant’s hand,
the court concluded that the government had carried its burden
of proving that the error did not have a substantial and injurious
effect on the jury’s verdict. Id. at 952-53.

The evidence in this case commands the same conclusion.
At trial, multiple arresting officers testified, without
 12

inconsistency or contradiction, that they discovered the gun in
Johnson’s waistband. That discovery was preceded by several
attempts by Johnson to reach for his waistband, as well as an
effort to keep his waist away from the officers by pressing it
against the car. The officers further testified, again without
contradiction, that as soon as Officer Franchak grabbed the gun,
Johnson exclaimed: “[O]f course I carry a gun. . . . I’ve been
shot seven times, I got shot in my neck. They killed my man.
You all never found who did that. I will carry a gun for the rest
of my life.” Trial Tr. 32 (Apr. 26, 2004). Finally, the
fingerprint examiner testified that she found Johnson’s
fingerprint on the magazine of the gun that the officers took
from his waistband. On this record, we conclude that the
admission of Johnson’s 1997 conviction did not have a
“substantial and injurious effect” on the jury’s verdict and hence
was harmless. Kotteakos, 328 U.S. at 776.2

IV

Johnson next contends that the district court erred in
denying his motion for judgment of acquittal on the charge of
possession with intent to distribute cocaine base. The court
should have granted the motion, he maintains, because the
government failed to introduce sufficient evidence that the
cocaine base at issue was either smokable cocaine base or crack
cocaine, as required by United States v. Brisbane, 367 F.3d 901
(D.C. Cir. 2004).

Count Two of the indictment charged Johnson with
violating 21 U.S.C. § 841(a) and (b)(1)(B)(iii), by possessing
with intent to distribute five grams or more of “cocaine base.”

2
We also note that the government did not mention the 1997
conviction in its closing or rebuttal arguments. The jury learned of it
only through a bare-bones stipulation.
 13

As we have explained in previous cases, a “certain quantity of
‘cocaine base’ will trigger much stiffer penalties than an
equivalent quantity of powdered cocaine -- that is, ‘cocaine, its
salts, optical and geometric isomers, and salts of isomers.’”
United States v. Powell, 503 F.3d 147, 148 n.1 (D.C. Cir. 2007)
(comparing 21 U.S.C. § 841(b)(1)(A)(ii)(II) & (B)(ii)(II) with
21 U.S.C. § 841(b)(1)(A)(iii) & (B)(iii)); see United States v.
Johnson, 437 F.3d 69, 74 (D.C. Cir. 2006). In Brisbane, we
held that, to “uphold the higher penalties that § 841 prescribes
for crimes involving ‘cocaine base,’” the government must
prove that the kind of cocaine base seized was either “smokable
cocaine base or crack cocaine.” Johnson, 437 F.3d at 71 (citing
Brisbane); see United States v. Baugham, 449 F.3d 167, 171
(D.C. Cir. 2006).3 Our review of a challenge to the sufficiency
of the evidence to establish a statutory element is limited: we
must accept the jury’s guilty verdict if we conclude that “any
rational trier of fact could have found the essential element[] of
the crime beyond a reasonable doubt.” United States v.
Arrington, 309 F.3d 40, 48 (D.C. Cir. 2002) (quoting Jackson v.
Virginia, 443 U.S. 307, 319 (1979)).

In light of the parties’ stipulation to the chemist’s report,
there is no doubt that the white, rock-like substance seized in
this case was cocaine base. There is also no doubt that the
government did not attempt to prove that the substance was
smokable cocaine base, as no evidence of smokability was
introduced. Thus, as in many of our previous cases, the only

3
Johnson argues that, because the government failed to prove that
the substance seized from him was smokable or crack, his conviction
for possession with intent to distribute cocaine base must be vacated,
and a conviction for the lesser-included offense of possession with
intent to distribute cocaine -- with a correspondingly reduced sentence
-- must be entered. Appellant’s Br. 16-17 (citing Brisbane, 367 F.3d
at 915).
 14

question is whether the evidence was sufficient to prove that the
cocaine base the officers found was crack cocaine.

At trial, the arresting officers testified that the drugs they
seized from Johnson were “white” and “rock-like” and that,
during their many years working for the major narcotics branch,
they had often seen crack packaged as it was in this case. E.g.,
Trial Tr. 35, 45, 123, 149, 172, 190 (Apr. 26, 2004). Officer
Pearce specifically testified that the substance he found in the
Chrysler’s glove compartment was “crack cocaine.” Id. at 75.
The government’s narcotics expert testified that the drugs
appeared to be “street-level crack cocaine,” that “[c]rack cocaine
is sold in these small Ziploc bags,” and that the amount in
question would generate about 666 bags of crack that would sell
for ten dollars each. Trial Tr. 13-15 (Apr. 27, 2004). Finally,
several officers testified that, upon hearing Officer Pearce
announce that he had found some “crazy candy” in the glove
compartment of the Chrysler, Johnson spontaneously yelled out:
“Crack, I know you didn’t find any crack in that car, ain’t never
been any crack in that car.” E.g., Trial Tr. 37, 190 (Apr. 26,
2004).

The evidence introduced in this case is indistinguishable
from evidence we have previously held sufficient to establish
that cocaine base is crack.4 Johnson objects that the evidence

4
See United States v. Pettiford, No. 07-3027, slip op. at 17 (D.C.
Cir. Feb. 26, 2008) (the arresting officer, based on his experience in
“prior arrests dealing with crack cocaine,” testified that the “white,
rock-like substance” he seized was “crack cocaine”; a narcotics expert
opined that the “cluster of white . . . rock-like substance . . . was
cocaine base which is also known as crack cocaine” in Washington,
D.C.; and the expert further testified that the substance was packaged
in amounts that were consistent with the wholesale distribution of
crack and was found with paraphernalia typical of equipment used in
 15

was insufficient because there was no testimony that the
substance was smokable. Our cases make clear, however, that
“evidence about the substance’s smokability” is not required to
sustain a finding that it is crack. Johnson, 437 F.3d at 75; see
Pettiford, slip op. at 18; Powell, 503 F.3d at 148.5 The district

wholesale crack transactions); United States v. Lloyd, No. 05-3007,
slip op. at 16-17 (D.C. Cir. Feb. 22, 2008) (the seizing officer
identified the substance as “white” and “rock-like”; a narcotics expert
identified the white, rock-like substance found in eleven ziplock bags
as “crack cocaine”; and the expert further testified that the crack was
packaged for wholesale street distribution and that the kind of
paraphernalia found with the drugs was used to measure amounts
when packaging crack for wholesale distribution); Powell, 503 F.3d
at 148 (the seizing officer, experienced in crack cases, testified that the
“‘rock-like’ and ‘off-white’ or ‘yellowish’” substance was crack; and
a narcotics expert testified that the material was crack and not powder
cocaine); United States v. Lawrence, 471 F.3d 135, 139 (D.C. Cir.
2006) (police witnesses testified that the substance was a “large white
rock substance” and that the sale “followed conventional practices for
the sale of crack cocaine”; and undercover officers testified that the
defendant gave them the substance in response to their requests to buy
crack); Baugham, 449 F.3d at 183 (a police witness testified that the
substance was a “white rock substance,” distinguished the substance
from powder cocaine, and agreed that crack was “vernacular slang for
cocaine base”); Johnson, 437 F.3d at 75 (the seizing officers “testified
that the recovered drugs were ‘rock’ or ‘white rock,’ a physical
description that suggests crack cocaine”; a narcotics expert testified
that paraphernalia found in the defendant’s apartment was associated
with crack cocaine; and the expert further testified that the quantity
and packaging of the drugs were consistent with the street sale of
crack cocaine).
5
Johnson also objects that the narcotics expert “used
interchangeably the terms ‘cocaine base’ and ‘crack cocaine,’” and he
therefore maintains that the expert’s testimony cannot be used to
support the distinction required by Brisbane. Appellant’s Reply Br.
 16

court did not err in denying Johnson’s motion for judgment of
acquittal.

Before concluding this Part, we note that, at oral argument,
Johnson’s counsel challenged the adequacy of the description of
the charged offense contained in the jury verdict form. Oral
Arg. Recording at 3:00. Employing the statutory language, the
verdict form asked the jury whether it found the defendant guilty
of possession with intent to distribute five grams or more of
“cocaine base”; it did not mention “crack cocaine.” Counsel
contends that this means that the jury did not find Johnson guilty
of possession with intent to distribute crack, but only of
possession with intent to distribute generic cocaine base. This
objection was not asserted in the district court and was not made
on appeal until the reply brief. Even then, it was only mentioned
in passing. It is therefore waived. See, e.g., United States v.
Johnson, 216 F.3d 1162, 1168 (D.C. Cir. 2000).

Even if the point were not waived, it would not prevail.
Count Two of the indictment charged Johnson with “possession
with intent to distribute cocaine base, also known as crack.”
Indictment, Gov’t App. 31. The district court’s jury instructions
repeatedly stated that, to convict Johnson on that count, the jury
would have to find him guilty of possession with intent to
distribute “crack cocaine.” E.g., Trial Tr. 96 (Apr. 27, 2004)
(“[T]he government must prove . . . that Mr. Johnson possessed
a controlled substance, specifically crack cocaine[,] . . . that Mr.
Johnson possessed the crack cocaine knowingly and

3. We rejected a similar objection in Lloyd, where the expert testified
that the seized substance was crack but also said that “crack is a ‘street
name’ for the same drug that chemists identify as ‘cocaine base.’”
Lloyd, slip op. at 17; see also Baugham, 449 F.3d at 183 (citing an
officer’s testimony that “‘cocaine base’ was ‘another name’ for
‘[c]rack’ and that crack was the ‘vernacular slang for cocaine base’”).
 17

intentionally[,] . . . [and] that when Mr. Johnson possessed this
crack cocaine, he had the specific intent to distribute it.”). We
therefore reject the argument that, in marking the “guilty” line
of the verdict form, the jury did not find Johnson guilty of a
crime involving crack cocaine.

V

Finally, Johnson argues that the district court erred in
denying his motion for a new trial. That motion was based on
two grounds: a witness affidavit that he obtained only after the
trial ended, and an alleged Brady violation. We review both
grounds below.

A

Following his conviction, Johnson filed a motion for a new
trial, contending that he had recently obtained eyewitness
evidence that refuted the government’s case. The new evidence,
which he maintained contradicted the police officers’ testimony
that they approached him when he was inside the green
Chrysler, consisted of an affidavit from a woman named Sharon
Jones. The relevant portion of the affidavit recited Jones’
observations as follows:

The police hopped out of the truck with guns and
pulled Abdul [Johnson] out of the car. The police
officers started searching him. . . . [T]hey pulled Abdul
across the street and put him against the green car on
the other side of the street. Some of the police were
searching the green car and one of the white officers
searching in the green car said that he found a gun and
some candy. The police were talking to each other
about how they were going to lock him up for what
was found in the green car.
 18

Jones Statement, Appellant’s App. 375. The district court
denied Johnson’s motion, concluding that “the defendant has not
argued diligence in the attempt to procure the newly discovered
evidence” and that the affidavit “would not likely produce an
acquittal.” United States v. Johnson, Mem. Order at 2-3 & n.1
(Oct. 27, 2005).

We review a district court’s ruling on a motion for a new
trial for abuse of discretion. See, e.g., United States v. Gloster,
185 F.3d 910, 914 (D.C. Cir. 1999). For a defendant to obtain
a new trial because of newly discovered evidence, he must
satisfy each of five requirements:

(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) [it must be] of
such nature that in a new trial it would probably
produce an acquittal.

United States v. Lafayette, 983 F.2d 1102, 1105 (D.C. Cir. 1993)
(quoting Thompson v. United States, 188 F.2d 652 (D.C. Cir.
1951)).

We agree with the district court that Johnson did not show
-- indeed, did not even argue -- that he had diligently attempted
to procure Sharon Jones’ affidavit. Nor does he argue diligence
on appeal. And it is not likely that he could. Sharon Jones is
Nancy Jones’ daughter, see Oral Arg. Recording at 14:34, and
at the time of Johnson’s arrest, the two women lived together.
Given that the defendant was able to obtain Nancy’s testimony
in time for the pretrial suppression hearing, his failure to pursue
 19

the testimony of her daughter prior to trial manifests a lack of
diligence.

Although it is not necessary to our decision, we also agree
with the district court’s determination that Sharon’s affidavit
was not likely to have produced an acquittal. Sharon’s proffered
testimony would have added little to that already available from
Nancy. Accordingly, we find no abuse of discretion in the
district court’s denial of a new trial on the basis of the Sharon
Jones affidavit.

B

Johnson’s second argument for a new trial was that the
government had failed to disclose Brady material that could
have been used to impeach Officer Franchak’s testimony. The
alleged Brady material was an official MPD reprimand of
Franchak, based on the results of an Office of Citizen Complaint
Review investigation, for conducting an unexplained traffic stop
and harassing the driver in 2001. See Appellant’s App. 377-93.6
The district court rejected Johnson’s argument on the ground
that the reprimand would not have been admissible at trial, and
hence was not favorable to Johnson, because it would have been
barred by Federal Rule of Evidence 608(b). Under that rule,
“[s]pecific instances of the conduct of a witness, for the purpose
of attacking or supporting the witness’ character for truthfulness,
. . . may not be proved by extrinsic evidence.” FED R. EVID.
608(b).

6
Johnson’s counsel did not receive the material until after
Johnson’s trial, and only then by happenstance: she received the
material in connection with a discovery request she made in a different
case that involved the same officer. See Oral Arg. Recording at 16:47.
 20

In Brady v. Maryland, the Supreme Court held that the Due
Process Clause imposes upon the prosecution an obligation to
disclose “evidence favorable to an accused . . . where the
evidence is material either to guilt or to punishment, irrespective
of the good faith or bad faith of the prosecution.” 373 U.S. 83,
87 (1963). In Giglio v. United States and United States v.
Bagley, the Court held that “[i]mpeachment evidence, . . . as
well as exculpatory evidence, falls within the Brady rule.”
Bagley, 473 U.S. 667, 676 (1985) (citing Giglio, 405 U.S. 150,
154 (1972)). As the Court subsequently explained, a “true
Brady violation” has three components: “The evidence at issue
must be favorable to the accused, either because it is
exculpatory, or because it is impeaching; that evidence must
have been suppressed by the State, either willfully or
inadvertently; and prejudice must have ensued.” Strickler v.
Greene, 527 U.S. 263, 281-82 (1999). To satisfy the prejudice
component, the withheld evidence must be “material”; that is,
there must be “a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would
have been different.” Id. at 280 (quoting Bagley, 473 U.S. at
676); see also Kyles v. Whitley, 514 U.S. 419, 433-34 (1995).
The defendant bears the burden of showing a reasonable
probability of a different outcome. Strickler, 527 U.S. at 291;
United States v. Gale, 314 F.3d 1, 4 (D.C. Cir. 2003).

Whether the government has breached its obligations under
Brady is a question of law, which we review de novo. In re
Sealed Case, 185 F.3d 887, 892 (D.C. Cir. 1999); see United
States v. Cuffie, 80 F.3d 514, 517 (D.C. Cir. 1996); United
States v. Lloyd, 71 F.3d 408, 411 (D.C. Cir. 1995). To decide
this question, we need not address the district court’s holding
that the reprimand would have been inadmissible at trial, or the
government’s contention that cross-examination using the
reprimand would not have materially discredited Franchak’s
 21

testimony.7 In this case, the government’s nondisclosure was
nonmaterial regardless of whether the reprimand would have
been admissible and regardless of whether it would have
undermined Franchak’s testimony.

In determining whether there is a reasonable probability
that disclosure would have yielded a different outcome, see
Strickler, 527 U.S. at 280, “the court must consider the
non-disclosure dynamically, taking into account the range of
predictable impacts on trial strategy.” Gale, 314 F.3d at 4. This
means that the court must consider whether, if use of the
material would have substantially discredited a witness, the
government would have proceeded to trial without that witness’
testimony. Id. at 4-5. When the government has other qualified
witnesses to prove its case, we cannot assume that it “would
have foolishly charged ahead, blindly offering [the compromised
witness] and exposing itself to his inevitable demolition on
cross.” Id. at 4. In such cases, nondisclosure would not be
material in Brady terms. See id. at 4-5 (holding that, where the
government could have replaced its impeachable expert with
another, the defendant could not show that disclosure of the
potential impeachment material would have been reasonably
likely to yield a different result); see also United States v.
Matthews, 168 F.3d 1234, 1243 (11th Cir. 1999) (rejecting a

7
Even if extrinsic evidence of the reprimand would have been
inadmissible, Rule 608(b) would not necessarily have barred
“inquir[y] into” the reprimand “on cross-examination of the witness
. . . concerning the witness’ character for truthfulness or
untruthfulness.” FED. R. EVID. 608(b). Our cases make clear that the
government’s effective foreclosure of such cross-examination, by its
failure to disclose the underlying extrinsic evidence to the defense, can
(where material) constitute a Brady violation. See United States v.
Whitmore, 359 F.3d 609, 620 (D.C. Cir. 2004); United States v.
Bowie, 198 F.3d 905, 909 (D.C. Cir. 1999).
 22

Brady claim because, if the internal investigation of a testifying
detective “had been disclosed, it is unlikely that the government
would have used” the detective’s testimony, and because there
was overwhelming evidence implicating the defendants in the
charged conspiracy without that testimony).

In this case, Officer Franchak did not testify at the
suppression hearing. The government’s only witness at that
hearing was Officer Pearce. Hence, the government’s failure to
disclose impeachment evidence regarding Franchak was clearly
not material to the outcome of Johnson’s Fourth Amendment
challenge.

Franchak did testify at Johnson’s trial. But at trial, he was
only one of several arresting officers who testified about the
circumstances of Johnson’s arrest, including the discovery of the
handgun in his waistband, the marijuana in his pocket, and the
5.8 grams of crack cocaine in the Chrysler’s glove compartment.
Other officers also testified to Johnson’s inculpatory
exclamation when the police found the gun and to his statement
when they found the “crazy candy.” Had the reprimand been
disclosed and had the government regarded it as damaging, the
prosecution’s case regarding the gun and these drugs would
have proceeded in virtually identical fashion without
Franchak’s testimony.

We are not certain that the same can be said for the
government’s case regarding the crack cocaine and marijuana
subsequently recovered from the Jeep in which Johnson was
transported after his arrest. The record is unclear as to whether
Franchak was the only officer who could have testified to the
discovery of that evidence.8 By failing to raise this point in his

8
Some of the other officers’ trial testimony suggests that they
witnessed Franchak’s discovery of at least one portion of the drugs in
 23

briefs, however, the defendant has waived it. See, e.g., Johnson,
216 F.3d at 1168.9 In any event, we do not believe that Johnson
could satisfy his burden of showing that the absence of
testimony regarding the drugs found in the Jeep would have
materially affected the verdict. Johnson was indicted for -- and
convicted of -- possession with intent to distribute five grams or
more of cocaine base and possession of a detectable amount of
marijuana. Three officers other than Franchak testified to
discovering 5.8 grams of crack cocaine in the Chrysler’s glove
compartment and .69 grams of marijuana in Johnson’s pocket.
Given that evidence, Johnson cannot show “a reasonable
probability that . . . the result of the proceeding would have been
different” if the reprimand had been disclosed and Franchak
removed from the witness list. Bagley, 473 U.S. at 682 (quoting
Strickland v. Washington, 466 U.S. 668, 694 (1984)).10

the Jeep, while different testimony suggests that the other officers had
walked away from the vehicle and did not return until Franchak
alerted them that he had discovered additional drugs.
9
The only basis upon which Johnson’s briefs contend Franchak
was a critical witness is that he “was the officer who made the
decision [to] investigate the alleged double parked vehicle and brought
his vehicle in a position to stop Mr. Johnson.” Appellant’s Br. 29;
Appellant’s Reply Br. 4.
10
The additional quantities of cocaine base and marijuana that
Franchak found in the Jeep could, of course, have affected Johnson’s
sentence. But Johnson does not raise any sentencing claim on appeal,
and again, it is doubtful that he could. Although Johnson obtained the
material regarding Franchak’s reprimand before the sentencing
hearing commenced, see Oral Arg. Recording at 17:41, he did not
attempt to introduce it at that hearing to impeach Franchak’s trial
testimony. The Federal Rules of Evidence would not have barred such
use. U.S. Sentencing Guidelines § 6A1.3 cmt. (“In determining the
relevant facts, sentencing judges are not restricted to information that
 24

Accordingly, there is no basis for reversing the district court’s
denial of Johnson’s motion for a new trial.

VI

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

Affirmed.

would be admissible at trial.”); see United States v. Bras, 483 F.3d
103, 108-09 (D.C. Cir. 2007).