233 F.3d 592 (D.C. Cir. 2000)
United States of America, Appelleev.Gregory Williams, Appellant
No. 00-3003
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Submitted October 17, 2000Decided December 8, 2000

Appeal from the United States District Court for the District of Columbia (99cr00033-01)
Billy L. Ponds was on the brief for appellant.
Wilma A. Lewis, U.S. Attorney, John R. Fisher, Adam L.  Rosman and Kenneth W. Cowgill, Assistant U.S. Attorneys,  were on the brief for appellee.
Before:  Williams, Randolph, and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Randolph.
Randolph, Circuit Judge:


1
The issue is whether the perjury  of a prosecution expert witness, discovered after trial, entitled  Gregory L. Williams to a new trial.  The jury convicted  Williams of possession with intent to distribute heroin, in  violation of 21 U.S.C. § 841(a)(1).  When arrested, Williams  had 10.5 grams of heroin in 87 small plastic "baggies" in his  coat pocket, and was storing another 75.3 grams of heroin,  packaged in 638 small plastic "baggies," in an automobile. One government expert, a forensic chemist, testified about  the tests he performed to establish that the material in the  "baggies" was heroin.


2
Another government witness, Detective Johnny St. Valentine-Brown, answered a question about his qualifications,  stating that he had been a narcotics expert for more than  twenty years and had served as a senior narcotics policy  analyst in the Reagan and Bush administrations.  At the end  of his lengthy response, he added:  "I am also a Board certified pharmacist.  I receive, maintain compound and dispense narcotic, as well as non-narcotic substances per prescription."  Without objection, the court accepted Brown as  an expert in the "distribution and use of narcotics, the  packaging of narcotics for street-level distribution, the manner in which narcotic dealers distribute narcotic substances in  the District of Columbia, the price for which narcotics are  sold, both the wholesale and the street value ... [and] ...  the Metropolitan Police Department and Drug Enforcement  Administration procedures for the safeguarding of narcotics  evidence."  Brown went on to testify about the procedures  the Police Department used to store narcotic substances and  to give his opinion, in light of Williams' large collection of  small "baggies" of heroin, that "[h]eroin users don't buy this  amount of dope broken down and packaged like this for their  own personal use.  It just does not happen."


3
After Williams' conviction, his attorney learned that Brown  was not a pharmacist and had no degree in pharmacology,  facts unknown to the prosecution during the trial.  Williams  then moved for a new trial pursuant to Federal Rule of  Criminal Procedure 33, which the district court denied.


4
What is the standard for ordering a new trial when the  newly discovered evidence is that perjury occurred?  Rule 33  says only:  "the court may grant a new trial ... if the  interests of justice so require."  An ancient opinion from  another circuit lays down this test:  a defendant is entitled to  a new trial if, without the perjured testimony, "the jury might  have reached a different conclusion."  Larrison v. United  States, 24 F.2d 82, 87 (7th Cir. 1928).  Notice that the  Larrison formulation focuses on the importance of the perjured testimony to the prosecution's case.  It does not ask  whether the jury would have reached a different conclusion  had the perjury been revealed at trial, although the Seventh  Circuit has now modified the test to take this into account. See United States v. Mazzanti, 925 F.2d 1026, 1030 & n.6 (7th  Cir. 1991).  Notice too that Larrison puts the test in terms of  what "might" have happened rather than what likely would  have occurred.


5
Under our usual Rule 33 standard, a defendant is not  entitled to a retrial on the basis of newly discovered evidence  unless he can show that "a new trial would probably produce  an acquittal."  United States v. Thompson, 188 F.2d 652, 653  (D.C. Cir. 1951) (emphasis added).  This formulation, common  throughout the federal courts, has been used for nearly a  century and a half.  See 3 Charles Alan Wright, Federal  Practice and Procedure § 557 (2d ed. 1982).  We have  consistently followed the Thompson standard in evaluating  motions for a new trial under Rule 33.  See United States v.  Gloster, 185 F.3d 910, 914 (D.C. Cir. 1999).  The difference  between Larrison and Thompson is not just in the use of  "might" versus "probably."  Thompson looks ahead and evaluates the outcome of a new trial;  Larrison looks back and  evaluates the impact of the perjury on the jury in the original  trial.


6
This circuit has never adopted Larrison.  In the past we  have managed to avoid choosing between it and the standard  of Thompson because the defendant was not entitled to a new  trial under either formulation.  See United States v. Mangieri, 694 F.2d 1270, 1286 (D.C. Cir. 1982);  United States v.  Mackin, 561 F.2d 958, 961 (D.C. Cir. 1977).  Today we join  several other circuits in rejecting Larrison.  See United States v. Sinclair, 109 F.3d 1527, 1532 (10th Cir. 1997); United States v. Provost, 969 F.2d 617, 622 (8th Cir. 1992); United States v. Krasny, 607 F.2d 840, 844-45 (9th Cir. 1979); United States v. Stofsky, 527 F.2d 237, 246 (2d Cir. 1975). The  First Circuit in United States v. Huddleston, 194 F.3d 214,  219 (1st Cir. 1999), also refused to follow Larrison partly on  the basis of United States v. Agurs, 427 U.S. 97, 103 (1976). The Supreme Court there directed federal courts to overturn  convictions based on the government's knowing use of perjured testimony if there is "any reasonable likelihood that the  false testimony could have affected the judgment of the jury." Id. From this the First Circuit reasoned:  "If courts must  scrutinize the knowing use of perjured testimony under this  standard, there is no principled justification for treating the  government more harshly (such as by interposition of the  Larrison rule) when its use of perjured testimony is inadvertent."  Huddleston, 194 F.3d at 220.  We are not so sure. The Agurs test, which repeats prior Supreme Court law, see  Giglio v. United States, 405 U.S. 150, 154-55 (1972);  Napue  v. Illinois, 360 U.S. 264, 269-70 (1959), is quite easily satisfied.  The phrases--"reasonable likelihood," "could have affected"--"mandate a virtual automatic reversal of a criminal  conviction."  Stofsky, 527 F.2d at 243.  It is hard to see how  Larrison could have set down an even more liberal test than  Agurs, which appears to be what the First Circuit supposed.


7
This is not to say that the Larrison test is difficult to  satisfy.  It is not.  The Second Circuit's Stofsky opinion put  the matter well:  "the test, if literally applied, should require  reversal in cases of perjury with respect to even minor  matters, especially in light of the standard jury instruction  that upon finding that a witness had deliberately proffered  false testimony in part, the jury may disregard his entire  testimony."  527 F.2d at 245-46.  That is reason enough to  reject Larrison.


8
If not Larrison, what should the standard be?  One possibility is the standard laid down in Thompson for other types  of newly discovered evidence. This would mean that, when  perjury by a prosecution witness is discovered after trial and  when the prosecution did not know of the perjury until then, a defendant would be entitled to a new trial only if he can  establish that he would probably be acquitted on retrial. History provides a reason for adhering to the Thompson  formulation.  Rule 33's current text was adopted in 1944. The accompanying Advisory Committee note stated that the  rule "substantially continues existing practice."  Fed. R. Crim.  P. 33, advisory committee's note.  The widely-accepted practice in 1944, a practice derived from a mid-19th century state  court decision, see 3 Wright, supra, § 557, at 315, 322,  required a defendant seeking a new trial to demonstrate a  likelihood of success in a future retrial.  See Evans v. United  States, 122 F.2d 461, 468-69 (10th Cir. 1941);  Wagner v.  United States, 118 F.2d 801, 802 (9th Cir. 1941); Prisament  v. United States, 96 F.2d 865, 866 (5th Cir. 1938);  Johnson v.  United States, 32 F.2d 127, 130 (8th Cir. 1929).  Larrison too  predated Rule 33, but it had not been adopted in any other  circuit, and in fact had been cited only twice in the other  courts of appeals, and then only for propositions having  nothing to do with this case.  See Dale v. United States, 66  F.2d 666, 667 (7th Cir. 1933);  Vause v. United States, 54 F.2d  517 (2d Cir. 1931).


9
Another reason for adhering to the Thompson standard is  that newly-discovered evidence of perjury is not distinguishable from other newly-discovered evidence.  One author disagrees, arguing that perjury is different because it creates  "an error at trial" whereas in the case of other types of newly  discovered evidence, "the evidence at trial may have been  incomplete, but it was all true."  Note, I Cannot Tell A Lie: The Standard for New Trial in False Testimony Cases, 83  Mich. L. Rev. 1925, 1945 (1985).  The difference is illusory. Newly discovered evidence may often tend to prove that the  evidence before the jury was not "true."  A third party may  confess to the crime;  it may turn out that the main government witness has a string of felony convictions;  proof positive  of the defendant's alibi might surface.  Any one of these  items of newly discovered evidence, in various degrees,  throws doubt on the accuracy of the trial evidence pointing to  the defendant's guilt.  Yet the district court, faced with Rule 33 motions in such cases, will evaluate the motions by using  the Thompson test.


10
We recognize that the Second Circuit in Stofsky, while  refusing to follow Larrison, may have devised a variation of  it.  Rather than asking whether the outcome of the trial  might have been different had the jury known of the witness's  lie, the Second Circuit asks whether the defendant probably  would have been acquitted. This differs from our Thompson  standard because, like Larrison, it looks at the matter retrospectively. The retrospective-prospective difference may not  matter in the mine run of cases.  But we can imagine  situations in which it would matter, situations in which Stofsky would command a new trial that in all probability would  not produce a difference outcome.  Because we can see no  good reason to treat newly-discovered evidence of perjury  differently than other types of newly-discovered evidence, we  reject Stofsy and adhere to our original formulation under  Thompson.


11
If Williams were retried, the government would have at its  disposal any number of experts who could testify that the  amount of heroin in his possession was inconsistent with  personal use.  Or the government could decide not to call an  expert on this subject.  Any rational juror could infer from  the fact that Williams was carrying 725 individual "baggies"  of heroin that he was intending to sell them. See United  States v. Askew, 88 F.3d 1065, 1070 (D.C. Cir. 1996) (jury  could infer from the quantity of drugs possessed that a  defendant intended to distribute them even without expert  witness).  So too the fact that drugs were segregated into  "baggies" supports an inference of intent to distribute.  See  United States v. Glenn, 64 F.3d 706, 711-12 (D.C. Cir. 1995)  (drugs segregated into 9 "baggies" supports inference of  intent to distribute).  In either event--a different expert or  no expert--it is most unlikely that a jury would acquit  Williams in a new trial.


12
Affirmed.

