                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA

____________________________
                            )
UNITED STATES OF AMERICA,   )
                            )
          v.                )    Criminal Action No. 05-100-2 (RWR)
                            )
DAVID WILSON,               )
                            )
          Defendant.        )
____________________________)


                   MEMORANDUM OPINION AND ORDER

     After being found guilty of narcotics offenses, unlawful use

of a communications facility, and aiding and abetting first

degree murder while armed, David Wilson filed a motion for

judgment of acquittal, and a motion for a new trial alleging that

the government failed to disclose exculpatory Brady material and

that the government sponsored false testimony.    Because the

evidence when viewed in the light most favorable to the verdict

permitted a reasonable jury to find the essential elements of all

the offenses of which Wilson was convicted except for Count 11,

his motion for judgment of acquittal will be granted in part and

denied in part.   Further, because the testimony was not

demonstrably false and neither that nor the undisclosed

information could reasonably have affected the outcome or the

fairness of the trial, Wilson’s motion for a new trial will be

denied.
                                - 2 -

                            BACKGROUND

     Wilson was tried along with five other defendants on a 58-

count indictment alleging a narcotics conspiracy among members of

the Congress Park Crew and related violations.    The jury found

Wilson guilty as to some of the charges of unlawful distribution

of crack cocaine (Counts 4, 6, 11, 16, 18, 19, 20, and 21),

unlawful use of a communication facility (Count 55), and aiding

and abetting the first-degree murders of Sabrina Bradley and

Ronnie Middleton (Counts 31 and 33).     During a ten and one-half-

month trial, the government introduced testimony from FBI agents,

experts, witnesses who had pled guilty under cooperation

agreements with the government, and other witnesses; tape and

video recordings; and physical evidence.    Viewed in the light

most favorable to the verdict, the government’s evidence

established the following facts.

     Wilson sold crack cocaine in the Congress Park neighborhood

of Southeast Washington, D.C.   On at least seven occasions, he

sold crack cocaine to witnesses cooperating with the Federal

Bureau of Investigation.   One of those cooperating witnesses,

Sandra White, was a crack addict who lived in the Congress Park

neighborhood for a number of years.     In March or May of 2000, she

purchased three ten-dollar quantities (“dimes”) of crack from

Wilson for $25.   (Trial Tr., Mar. 12, 2007 p.m. at 2516, 2519;

Mar. 13, 2007 p.m. at 2713-17.)    On June 28, 2000, White
                                - 3 -

purchased twenty dimes of crack from Wilson for $200.    (Id. at

2527-28.)   On October 17, 2000, though, she entered Wilson’s

apartment in Congress Park, where Wilson’s co-defendant Desmond

Thurston weighed crack on a scale, and she bought the crack from

Thurston.   (Id. at 2536-37; see infra n.2.)

       Season Wood grew up with Wilson and later sold drugs in

Congress Park as well.   (Trial Tr., Feb. 28, 2007 a.m. at 859-

61.)   In September 2000, Wood was arrested and began cooperating

with the FBI.   (Id. at 883-85.)   On January 24, 2001, Wilson sold

10.9 grams of crack to Wood for $600.   (Id. at 885-892; Feb. 28,

2007 p.m. at 904-05; May 2, 2007 a.m. at 9549.)   On February 14,

2001, Wood arranged with Wilson to purchase an ounce of crack

from him.   (Trial Tr., Feb. 28, 2007 p.m. at 920-22.)   However,

Wilson did not have enough crack to satisfy Wood’s request.

Wilson telephoned an associate, Larry Browne, asking Browne to

obtain more powder cocaine so that Wilson could satisfy Wood’s

order (id. at 926-28; Trial Tr., Mar. 5, 2007 a.m. at 1416), and

to purchase baking soda.   Wood furnished both, and an

unidentified person used the baking soda to cook the powder

cocaine into crack.   (Trial Tr., Feb. 28, 2007 p.m. at 926-933;

Mar. 5, 2007 a.m. at 1431.)   Wood gave Wilson $1,200 for 19.4

grams of the newly cooked crack cocaine.   (Trial Tr., Feb. 28,

2007 p.m. at 920-22, 933; Mar. 22, 2007 p.m. at 3972.)
                                 - 4 -

        Gail Parsons moved to Congress Park in 1991, and became

addicted to crack.    (Trial Tr., Mar. 6, 2007 p.m. at 1809-10.)

After she was arrested and charged with narcotics offenses,

Parsons began cooperating with the FBI.     (Id. at 1818-19.)     On

March 20, 2001, Parsons purchased a .52 gram piece of crack from

Wilson for $80.    (Trial Tr., Mar. 7, 2007 a.m. at 1933-34;

Mar. 12, 2007 p.m. at 2362; Mar. 22, 2007 p.m. at 4008-09.)       On

April 5, 2001, Parsons purchased 1.9 grams of crack from Wilson

for $200.    (Trial Tr., Mar. 7, 2007 p.m. at 1953-54; Mar. 12,

2007 a.m. at 2364-65; Mar. 22, 2007 p.m. at 4008-09.)

Additionally, on April 26, 2001, Darlene Irving, another

cooperating witness, purchased 2.8 grams of crack from Wilson for

$100.    (Trial Tr., Mar. 28, 2007 a.m. at 4679, 4685-86; July 10,

2007 p.m. at 17107.)

        Wilson was particularly close with one of his associates,

Maurice Doleman, whose mother helped to care for Wilson when he

was growing up.    (Trial Tr., Mar. 29, 2007 p.m. at 5089.)

Doleman robbed the girlfriend of a member of the 1-5 Mob, a rival

gang operating in an area next to Congress Park, and robbed the

girlfriend’s uncle.    (Id. at 5088.)    In 1993, as retaliation, the

gang member paid Ronnie Middleton, another member of the 1-5 Mob,

to kill Doleman.    (Id. at 5081.)   That same year, Doleman was

shot and killed, and members of the Congress Park group,

including Wilson, believed that Middleton was the person who shot
                                  - 5 -

Doleman.    (Id. at 5075-81.)   After the murder, Wilson committed

himself to killing Middleton to avenge his friend.    (Id. at

5095.)

     In the early morning of August 17, 1998, Wilson and two

other members of the Congress Park group, Antonio Roberson and

Antoine Draine, spotted Middleton sitting in his car, a Ford

Bronco.    (Trial Tr., Apr. 2, 2007 a.m. at 5138, 5145.)   Also

sitting in Middleton’s car were his girlfriend, Sabrina Bradley,

and a third individual nicknamed Teeny Man.    (Trial Tr., June 7,

2007 a.m. at 14572-73.)    After seeing Middleton in his car,

Wilson drove to Roberson’s house to obtain a .9mm Glock handgun.

(Trial Tr., Apr. 2, 2007 a.m. at 5138-40.)    Wilson, Roberson, and

Draine returned to where Middleton had parked the car, and

Roberson opened fire with the gun on the Bronco.    (Trial Tr.,

Mar. 29, 2007 p.m. at 5112-15.)     Teeny Man escaped from the car

by jumping out a window, but both Middleton and Bradley were

wounded.    (Id.)   Middleton sped off in the car with Bradley to

the Metropolitan Police Department 7th District building, where

Detective Thomas Webb spoke briefly with Middleton about the

shooting.    (Trial Tr., June 7, 2007 p.m. at 14635-38.)   Rescue

workers took Middleton and Bradley to D.C. General Hospital,

where they both died as a result of the gunshot wounds they

sustained.   (Id. at 14663-64.)
                               - 6 -

     During the trial, Wilson moved for a mistrial, or in the

alternative, to dismiss Counts 31-34 of the superseding

indictment, arguing that the government late disclosed evidence

in violation of Brady v. Maryland, 373 U.S. 83 (1963).     In a

separate motion, Wilson again moved for a mistrial, contending

that the government failed to correct the false testimony of

witness Damien Green in violation of Napue v. Illinois, 360 U.S.

264 (1959).   After the government rested, Wilson moved for a

judgment of acquittal on all counts.     The motion was granted with

respect to a crack sale alleged in Count 7,    to all other counts.

Post-trial, Wilson now renews his motion for a judgment of

acquittal with respect to all counts on which he was convicted,

and his motion to dismiss Counts 31 and 33.1    Wilson also moves

for a new trial on Counts 31 and 33 as an alternative remedy for

the alleged Brady and Napue violations, and he has supplemented

that motion citing additional evidence that the government failed

to disclose as additional Brady violations.

                            DISCUSSION

I.   MOTION FOR JUDGMENT OF ACQUITTAL

     In reviewing a post-verdict motion for judgment of

acquittal, a court must look at the entire record, United States



     1
       Wilson also renews his motion for a mistrial. Because a
verdict has already been rendered and accepted, and the jury has
been dismissed, a new trial –– not a mistrial –– would be the
proper remedy for the alleged violations.
                                -7-

v. Byfield, 928 F.2d 1163, 1166 (D.C. Cir. 1991), and “must view

the evidence in the light most favorable to the verdict,” United

States v. Campbell, 702 F.2d 262, 264 (D.C. Cir. 1983), according

the verdict “the benefit of all legitimate inferences[.]”    United

States v. Singleton, 702 F.2d 1159, 1163 (D.C. Cir. 1983).     “The

evidence in question ‘need not exclude every reasonable

hypothesis of innocence or be wholly inconsistent with every

conclusion except that of guilt.’”    United States v. Morrow,

Criminal Action No. 04-355 (CKK), 2005 WL 1389256, at *4 (D.D.C.

June 13, 2005) (quoting United States v. Maxwell, 920 F.2d 1028,

1035 (D.C. Cir. 1990)).   “No distinction is made between direct

and circumstantial evidence in evaluating the sufficiency of

evidence supporting a guilty verdict.”    Maxwell, 920 F.2d at

1035.   The trial court must give “‘full play to the right of the

jury to determine credibility, weigh the evidence and draw

justifiable inferences of fact.’”     United States v. Treadwell,

760 F.2d 327, 333 (D.C. Cir. 1985) (quoting United States v.

Davis, 562 F.2d 681, 683 (D.C. Cir. 1977)).    The jury’s

determination will stand unless no reasonable trier of fact could

have found all the essential elements of the offense beyond a

reasonable doubt when considering the evidence in the light most

favorable to the verdict.   See United States v. Alexander, 331

F.3d 116, 127 (D.C. Cir. 2003); Morrow, 2005 WL 1389256, at *3.
                                    -8-

     A.     Narcotics convictions

     The jury convicted Wilson of unlawful distribution of crack

cocaine in Counts 4, 6, 11, 19, 20, and 21, and unlawful

distribution of five grams or more of crack cocaine in Counts 16

and 18.    To prove unlawful distribution, the government had to

prove that Wilson knowingly and intentionally distributed a

mixture or substance containing a detectable amount of cocaine

base, known as crack cocaine.   See 21 U.S.C. § 841(a)(1);

Criminal Jury Instructions for the District of Columbia § 6.202

(5th ed. revised 2009).   For Counts 16 and 18, the government

also had to prove that the amount was five grams or more of crack

cocaine.   Wilson argues that the government did not prove that

the substances were crack.   (Def.’s Mot. for Consideration of

Still Pending Mots. for a New Trial & for J. of Acquittal

(“Def.’s Mot.”) at 4.)

     The D.C. Circuit has concluded that the government “may

prove that cocaine base is crack cocaine in a variety of ways.”

United States v. Pettiford, 517 F.3d 584, 593 (D.C. Cir. 2008).

Evidence of smokability is not required to prove that the

substance is smokable crack.    Id. at 594.   For example,

     testimony that the seized substance was rock-like and
     off-white or yellowish in color; testimony by a chemist that
     it was 83% cocaine base; testimony by the seizing officer,
     experienced in crack cases, that the substance was crack;
     and testimony by an expert in the packaging and distribution
     of controlled substances that a photograph of the seized
     material showed crack and not powder cocaine
                                -9-

is sufficient evidence to enable a jury to conclude that a

substance is crack.   Pettiford, 517 F.3d at 593 (internal

quotation marks omitted) (citing United States v. Powell, 503

F.3d 147, 148 (D.C. Cir. 2007)).   United States v. Baugham, 449

F.3d 167, 183 (D.C. Cir. 2006), affirmed a conviction supported

by evidence that crack was a slang term for cocaine base, that

the officer could distinguish between crack and powder cocaine,

that the substance recovered in numerous ziploc bags had a white

rock appearance, and that the defendant had a reputation as a

crack dealer.

     Here, the government presented testimony from cooperators

who described their transactions with Wilson, FBI agents who

discussed the substances retrieved from cooperators after

controlled purchases, and chemists who stated the type, purity

level, weight, and appearance of the substances.   For Counts 16

and 18, Season Wood testified that on January 24, 2001, he

purchased four 3.5-gram quantities (“eight-balls”) of crack

cocaine from Wilson for $600 (Trial Tr., Feb. 28, 2007 a.m. at

874, 885-92; Feb. 28, 2007 p.m. at 904-05), and that on

February 14, 2001, he purchased crack cocaine from Wilson for

$1,200.   (Trial Tr., Feb. 28, 2007 p.m. at 920, 933.)   Wood also

testified that on February 14, 2001, he purchased for Wilson

baking soda, which can be used to make crack, and that the crack

he purchased from Wilson was wet and appeared as if it recently
                                -10-

had been cooked.   (Id. at 927-32.)    Larry Browne also testified

that on February 14, 2001, he gave cocaine powder to Wilson,

watched people cook the cocaine powder into crack, and saw Wilson

sell twenty-three grams of crack for $1,200 to a person he later

came to know as Season Wood.   (Trial Tr., Mar. 5, 2007 a.m. at

1431-42.)   Agent Robert Lockhart identified the white rock

substances that were recovered from Wood after the controlled

purchases on January 24, 2001 and February 14, 2001 as crack

cocaine.    (Trial Tr., Mar. 21, 2007 p.m. at 3656-58, 3666-68.)

Lockhart also testified that he had law enforcement experience

with controlled purchases involving crack.    (Trial Tr., Feb. 22,

2007 p.m. at 259.)   For Count 16, chemist Gwynn Reel testified

that the substance weighed 10.9 grams and contained cocaine base

with a purity of 73%.   (Trial Tr., May 2, 2007 a.m. at 9548-49.)

For Count 18, chemist Minh Dang testified that the substance

weighed 19.4 grams and contained cocaine base with a purity level

of 52%.    (Trial Tr., Mar. 22, 2007 p.m. at 3972.)   Dang also

testified that crack cocaine was the “street” term for cocaine

base and that the cocaine base he analyzed in this case had a

rock-like form.    (Trial Tr., Mar. 22, 2007 p.m. at 3962, 3964.)

     For Counts 19 and 20, Gail Parson testified that she

purchased a piece of crack cocaine from Wilson for $80 (Trial

Tr., Mar. 7, 2007 a.m. at 1933-34) and that she purchased dimes

of crack cocaine from Wilson for $200.    (Trial Tr., Mar. 7, 2007
                                -11-

p.m. at 1953-54.)   Agent Kyle Fulmer testified that he recognized

Wilson’s voice on audio recordings of those controlled purchases

and retrieved white rock substances from Parson after the

purchases on March 20, 2001 and April 5, 2001.   (Trial Tr.,

Mar. 12, 2007 a.m. at 2362-65.)   For Count 19, Dang testified

that the substance weighed .52 grams and contained cocaine base

with a purity of 53%.   (Trial Tr., Mar. 22, 2007 p.m. at 4008-

09.)   For Count 20, Dang also testified that the substance

weighed 1.9 grams, contained cocaine base with a purity of 75%,

and was packaged in thirty-two ziploc bags.   (Id.)

       For Count 4, Sandra White testified that she purchased three

dimes of crack cocaine from Wilson for $25.   (Trial Tr., Mar. 12,

2007 p.m. at 2519.)    When asked by the government whether this

transaction occurred on “March 25, 2000,” White responded “yes.”

(Trial Tr., Mar. 12, 2007 p.m. at 2516).   Agent Fulmer later

testified that, based on police records, the transaction in Count

4 occurred on “May 25, 2000.”   (Trial Tr., Mar. 13, 2007 p.m. at

2713-17.)   While the government introduced conflicting evidence

of the transaction date, it is the “right of the jury to

determine credibility, weigh the evidence and draw justifiable

inferences of fact.”    Treadwell, 760 F.2d at 333 (internal

quotation marks omitted).   A reasonable jury could have found

that White was testifying about the transaction alleged in Count

4.
                                -12-

       To support the conviction on Count 6, White testified that

on June 28, 2000 she purchased twenty dimes of crack cocaine,

packaged in twenty ziploc bags, from Wilson for $200.     (Trial

Tr., Mar. 12, 2007 p.m. at 2527-28.)

       Agent Fulmer supported White’s testimony by testifying that

law enforcement collected white rock substances from White after

she was sent to make controlled purchases on May 25, 2000 and

June 28, 2000.   (Trial Tr., Mar. 13, 2007 p.m. at 2713-17, 2723-

24.)   For Counts 4 and 6 respectively, Dang testified that the

substances from White’s transactions were .21 grams containing

cocaine base with a purity level of 86% and packaged in three

ziploc bags, and 1.4 grams containing cocaine base with a 91%

purity level and packaged in twenty ziploc bags.     (Trial Tr.,

Mar. 22, 2007 p.m. at 3995, 3998.)

       For Count 21, Darlene Irving testified that on April 26,

2001 she purchased “coke” from Wilson and had discussed with

Wilson whether to take the substance in “one big rock” or in

dimes.   (Trial Tr., Mar. 28, 2007 a.m. at 4685-86.)    Dang

testified that the substance from the April 26, 2001 purchase was

2.8 grams containing cocaine base at 81% purity level.     (Trial

Tr., July 10, 2007 p.m. at 17107.)     Lockhart identified a

photograph of drugs recovered from Irving’s April 26, 2001

purchase and testified that the photograph depicted crack cocaine

packaged in multiple ziploc bags.      (Trial Tr., July 12, 2007 a.m.
                               -13-

at 17440-41.)   Viewing all of this evidence in the light most

favorable to the government, a reasonable jury could have

concluded that Wilson knowingly and intentionally distributed

crack cocaine as alleged in Counts 4, 6, 16, and 18 through 21.

     For Count 11, White testified that she gave money to Desmond

Thurston in exchange for cocaine2 on October 17, 2000.   (Id. at

2536-37.)   Although it was not Wilson who actually sold White the

drugs, Count 11 charged Wilson with violating 18 U.S.C. § 2,

aiding or abetting in the distribution of crack.   Under an aiding

and abetting theory, the government must show “‘(1) the specific

intent to facilitate the commission of a crime by another; (2)

guilty knowledge on the part of the accused; (3) that an offense

was being committed by someone; and (4) that the accused assisted

or participated in the commission of the offense.’”   United

States v. Washington, 12 F.3d 1128, 1136 (D.C. Cir. 1994)

(quoting United States v. Harris, 959 F.2d 246, 262 (D.C. Cir.

1992), abrogated on other grounds by United States v. Stewart,

246 F.3d 728, 732 (D.C. Cir. 2001)).   The government must “‘show

some affirmative participation which at least encourages the

principal offender to commit the offense[.]’”   United States v.


     2
       White did not describe the cocaine further as powder or
crack cocaine. However, Agent Fulmer testified that he collected
a white rock substance from White after the October 17, 2000
controlled purchase (Trial Tr., Mar. 13, 2007 p.m. at 2734), and
Dang testified that the substance collected from that transaction
weighed 1.5 grams and contained cocaine base at a 77% purity
level. (Trial Tr., Mar. 22, 2007 p.m. at 4004.)
                              -14-

Kelly, 552 F.3d 824, 831 (D.C. Cir. 2009) (quoting United States

v. Monroe, 990 F.2d 1370, 1374 (D.C. Cir. 1993)).    White

testified that the drug transaction occurred in Wilson’s

apartment, that Thurston measured the cocaine on a scale in the

apartment, and that Wilson was with Thurston in the apartment’s

bedroom just prior to Thurston completing the drug sale.     (Trial

Tr., Mar. 12, 2007 p.m. at 2536-37.)   This evidence, viewed in

the light most favorable to the verdict, merely shows Wilson’s

presence at the scene but does not support any affirmative

participation by Wilson in the offense or prove that his mere

presence was intended to help in the commission of the offense.3

The government has not cited any additional evidence that

establishes that Wilson encouraged Thurston to conduct the sale,

and Wilson’s motion for judgment of acquittal will be granted

with respect to Count 11.

     B.   Unlawful use of a communication facility conviction

     The jury also convicted Wilson of unlawful use of a

communication facility in Count 55.    Wilson does not make any

specific arguments in support of a judgment of acquittal.    To

prove unlawful use of a communication facility, the government

had to prove that Wilson intentionally and knowingly used a


     3
       The government’s theory was that White had purchased from
Wilson and Thurston before then. (See Superseding Indictment,
Count One, Overt Act 35, and Count 3.) Thus, Wilson’s mere
presence would not have served to vouch for a seller unknown to
White, nor do the government’s briefs argue such a theory.
                                -15-

telephone with the intent to commit, facilitate, or cause the

commission of a conspiracy to distribute or possess with the

intent to distribute crack cocaine.    See 3-56 Modern Federal Jury

Instructions § 56.03 (2008); see also 21 U.S.C. § 843(b).      “[T]he

government must prove actual commission (by the defendant or

another person) of the alleged underlying offense.”   United

States v. Iennaco, 893 F.2d 394, 396 (D.C. Cir. 1990).

     The jury acquitted Wilson and his co-defendants of

conspiracy to distribute or possess with the intent to distribute

crack cocaine, but the acquittal does not bar a conviction on

this count.   In United States v. Powell, 469 U.S. 57, 69 (1984),

the Supreme Court noted that while the defendant’s conviction of

unlawful use of a communication facility was inconsistent with

her acquittal on the conspiracy to possess cocaine and the

possession of cocaine charges, “there is no reason to vacate

[defendant’s] conviction merely because the verdicts cannot

rationally be reconciled.”   Powell discussed the dangers of

speculating about the jury’s reasoning, noting that the jury

could have reached a conclusion of guilty on the communication

facility offense, and then “through mistake, compromise, or

lenity, arrived at an inconsistent conclusion” on the conspiracy

offense.   Id. at 65.   Thus, even though Wilson was acquitted of

conspiracy, a conviction for the unlawful use of a communication

facility was not foreclosed.
                                -16-

     Evidence introduced at trial sufficed for a rational jury to

find beyond a reasonable doubt the essential elements of this

offense.    The evidence when viewed most favorably to the jury’s

guilty verdict certainly demonstrated that Wilson knowingly used

a telephone with the intent to facilitate the commission of a

drug offense.   According to Wood, Wilson contacted “L” by

telephone and asked “L” to come cook his powder cocaine into

crack cocaine on February 14, 2001.    (Trial Tr., Feb. 28, 2007

p.m. at 926-28.)   Browne was the person known as “L”, and he

testified that Wilson called and stated that he needed more

cocaine.    (Trial Tr., Mar. 5, 2007 a.m. at 1416.)   Browne later

picked up money from Wilson, purchased ninety-three grams of

cocaine powder, and delivered this cocaine to Wilson.    (Id. at

1429-34.)   Browne watched an unidentified person cook the cocaine

into crack, saw Wilson sell Wood twenty-three grams of crack for

$1,200, and received $200 from the sale of the crack to Wood.

(Id.)   Browne also testified that on other occasions he had

obtained powder cocaine for Wilson.    (Id. at 1385-94, 1429-30.)

     Despite the acquittal, there was also sufficient evidence

for a jury to conclude that a conspiracy to distribute or possess

with intent to distribute cocaine and crack cocaine existed.    The

government “must show an agreement or mutual understanding

between at least two people to violate narcotics laws, and

knowing and intentional participation in the conspiracy.”    United
                                -17-

States v. Davis, 402 F. Supp. 2d 252, 258 (D.D.C. 2005).      United

States v. Simmons, 431 F. Supp. 2d 38, 49-50 (D.D.C. 2006), found

that because sufficient evidence existed to support the jury’s

guilty verdict on a charge of narcotics conspiracy, there was

necessarily sufficient evidence to establish that narcotics

conspiracy as the underlying offense for an unlawful use of a

communications facility conviction.    Here, numerous witnesses,

including Browne, Wood, White, Irving, and Parson, testified that

Wilson sold crack cocaine in Congress Park during the relevant

period.   Keith Barnett, Kairi Kelliebrew, and Bobby Capies

testified that Wilson cooperated with other conspirators to sell

crack in Congress Park by participating in a method of sharing in

the proceeds from sales of crack cocaine they called “doors” or

“uno, dos, tres.”   (See Trial Tr., Apr. 18, 2007 a.m. at 7555-56;

Apr. 2, 2007 p.m. at 5336-37; May 7, 2007 a.m. at 10164.)     Thus,

there was sufficient evidence for a jury to conclude that Wilson

knowingly used a telephone to facilitate the commission of the

offense of conspiracy to distribute or possess with intent to

distribute cocaine and crack cocaine.

     C.    Aiding and abetting armed first degree murder
           conviction

     The jury also convicted Wilson of Counts 31 and 33 under the

D.C. Code for aiding and abetting in the armed first degree

murders of Ronnie Middleton and Sabrina Bradley on or about

August 17, 1998.    Proof of aiding and abetting under D.C. Code
                                 -18-

§ 22-1805 “requires the Government to demonstrate that (1) an

offense was committed by someone; (2) the accused assisted or

participated in its commission; and (3) the participation was

with guilty knowledge.”    Simmons, 431 F. Supp. 2d at 48.   Armed

first degree murder requires that the government prove that a

person caused the death of the decedent, that he did so with the

specific intent to kill the decedent, that he did so after

premeditation and deliberation, and that at the time of the

offense, the person was armed with a firearm.    Criminal Jury

Instructions for the District of Columbia §§ 4.201, 8.101 (5th

ed. revised 2009); see also D.C. Code §§ 22-2101, 4502.

     There was sufficient evidence for a jury to find that Wilson

aided and abetted in the armed first degree murder of Bradley and

Middleton.   Bobby Capies testified that he and others in Congress

Park believed that Middleton, a member of the 1-5 Mob and an

associate of a man named Tommy Edelin, killed Doleman (Trial Tr.,

Mar. 29, 2007 p.m. at 5081, 5084), and that Wilson had expressed

a desire to retaliate against Middleton for Doleman’s death.

(Id. at 5095.)     Capies also testified about a conversation he had

with Wilson regarding Wilson’s involvement in the Middleton and

Bradley murders.    According to Capies, Wilson said that on the

night of the murders, he was driving a car with Roberson and

Draine as passengers when they saw Middleton sitting in his Ford

Bronco.   (Trial Tr., Apr. 2, 2007 a.m. at 5138, 5145.)   Wilson
                                 -19-

then drove to Roberson’s house to get a .9mm Glock and then

returned to where Middleton had parked.     (Id. at 5138-40.)

Roberson got out of the car and shot at Middleton’s Bronco.

During the shooting, Teeny Man jumped out of one of the Bronco’s

windows and ran.   Wilson claimed that he was unaware that Bradley

was in Middleton’s vehicle before Roberson started shooting and

that Bradley was not supposed to be with Middleton.     (Trial Tr.,

Mar. 29, 2007 p.m. 5112-17.)

     Kairi Kelliebrew testified that Antwaun Ball and Joseph

Jones were associates of Wilson’s, that they were angry at Tommy

Edelin because “Tommy had [Doleman] killed,” and that Wilson was

close friends with Doleman’s brother, Truck.     (Trial Tr., May 8,

2007 p.m. at 10457-58.)   Kelliebrew also testified about a

conversation he had with Wilson about the Middleton and Bradley

murders.   (Id. at 10459-61.)    According to Kelliebrew, Wilson

received a telephone call informing him of Middleton’s location.

Wilson drove Roberson and Draine to where Middleton was located.

Roberson and Draine “jumped out” of the car, “wore them out,

[and] jumped back in” the car.    (Id.)    Kelliebrew also testified

that Wilson said he did not know at the time of the shooting that

Bradley was in the vehicle with Middleton.     (Id.)

     Torran Scott also testified about Wilson’s involvement in

the Bradley and Middleton murders.      Scott testified that Bradley

was in a relationship with Middleton, and that he, Scott, had
                                -20-

seen Bradley in Middleton’s Bronco on previous occasions.        (Trial

Tr., June 12, 2007 p.m. at 15102-03.)   Soon after the murders,

Wilson and Roberson went to Scott’s home and Wilson appeared to

be surprised upon learning that Bradley had been in Middleton’s

Ford Bronco.   (Trial Tr., June 13, 2007 p.m. at 15354-55.)

Wilson and Roberson later visited Scott again at his home and

both stated that they did not know that Bradley had been in

Middleton’s Bronco.   (Trial Tr., June 12, 2007 p.m. at 15121;

June 13, 2007 a.m. at 15161.)   A few days after the murders,

Wilson told Scott that the police had questioned him about the

murders.   Wilson needed Scott’s help because Wilson had told the

police that he was with Scott at the time of the shooting.

(Trial Tr., June 13, 2007 a.m. at 15169.)

     Moreover, Renne Cottingham’s gripping testimony bore on

Wilson’s conviction on Counts 31 and 33.    Wilson dated

Cottingham’s daughter from the time her daughter was fourteen

until she was seventeen.   (Trial Tr., June 13, 2007 p.m. at

15367-68.)   Cottingham described Wilson as “like a son to me[,]”

and that he would sometimes address her as “Mom.”   (Id. at

15369.)    After Wilson and her daughter stopped dating, Cottingham

maintained a relationship with him, cooking for him, caring for

his dog, and even grooming his hair.    (Id. at 15370.)    She

testified that the day after the murder of Bradley and Middleton,

Wilson appeared upset and stated to her that “she shouldn’t have
                                -21-

been there.   I killed her.”   (Trial Tr., June 13, 2007 p.m. at

15378.)   Cottingham testified that Wilson described what had

happened on the night of the murders, stating that he was with

other people when the shooting occurred and that the female

victim was with two men at the time of the shooting, one of whom

died and one of whom “jumped out the window and ran.”   (Id. at

15379, 15382-83.)

     Finally, Patrice Johnson testified that on the night of the

murders, she saw Teeny Man running away from her home, and that a

few minutes later Teeny Man knocked on her door in a nervous

state, asked Johnson if she had talked to Bradley, and told

Johnson to call Bradley’s home.   (Trial Tr., June 7, 2007 a.m. at

14554-60, 14579-80.)   After Johnson was unable to reach Bradley

by telephone, Teeny Man told Johnson that he was in a vehicle

with Middleton and Bradley, that two masked men started shooting

at the vehicle, and that he had jumped out.   (Id. at 14580-83.)

     While Wilson challenged the credibility of these witnesses

and presented a different theory for the Bradley and Middleton

murders, the evidence presented allowed a reasonable jury to

conclude that Roberson killed Middleton and Bradley, and that

Wilson knowingly assisted and participated in the armed first

degree murders by knowingly driving Roberson to retrieve a murder

weapon and driving him back to the victims to carry out the
                               -22-

murder.   Wilson’s motion for judgment of acquittal will be denied

as to all counts on which the jury convicted him except Count 11.

II.   MOTION FOR A NEW TRIAL ON COUNTS 31 AND 33

      Wilson also moves for a new trial on Counts 31 and 33.4

Under Federal Rule of Criminal Procedure 33, a court may “‘vacate

any judgment and grant a new trial if the interest of justice so

requires.’”   United States v. Howard, 267 F. Supp. 2d 1, 3

(D.D.C. 2003) (quoting Fed. R. Crim. P. 33(a)).    A “[c]ourt

evaluates a Rule 33 motion from a different vantage point than

[the one from which] it evaluates a Rule 29 Motion for Judgment

of Acquittal.”   United States v. Edmonds, 765 F. Supp. 1112, 1118

(D.D.C. 1991).   “In [assessing] a Rule 33 motion for a new trial

. . . [a] [c]ourt need not accept the evidence in the light most

favorable to the government, and the [c]ourt may weigh the

testimony and may consider the credibility of the witnesses.”

Id.   “Even where errors occur, a new trial should be granted only

if the moving party has shown that the error was substantial, not

harmless, and that the error affected the defendant’s substantial


      4
       Wilson argues in the alternative that he is entitled to
dismissal of Counts 31 and 33. However, a dismissal is not the
proper remedy for a Brady violation. United States v. Evans, 888
F.2d 891, 897 n.5 (D.C. Cir. 1989). Similarly, while a court’s
supervisory powers might allow it to dismiss an indictment as a
sanction for the government’s misbehavior with respect to a Napue
violation, the more appropriate remedy for such a violation is a
new trial. United States v. Darui, 614 F. Supp. 2d 25, 37-38
(D.D.C. 2009). Thus, the alleged Brady and Napue violations will
be analyzed under only the Rule 33 standard for a new trial.
                                  -23-

rights.”   United States v. Walker, 899 F. Supp. 14, 15 (D.D.C.

1995) (internal quotation marks omitted).

     A.     Brady violations

     Under Brady, the government is required to disclose all

evidence in its possession that is favorable to a defendant and

“material either to guilt or to punishment.”     373 U.S. at 87.

There are three components of a true Brady violation: “[t]he

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).

     “A defendant asserting a Brady violation as grounds for a

new trial under Rule 33 must establish the materiality of the

evidence to show that its suppression was prejudicial.”        United

States v. Cook, 526 F. Supp. 2d 10, 14 (D.D.C. 2007) (internal

quotation marks omitted).      Not all evidence helpful to a

defendant is material.   Kyles v. Whitley, 514 U.S. 419, 436-37

(1995).    “[E]vidence is material only if there is a reasonable

probability that, had the evidence been disclosed to the defense,

the result of the proceeding would have been different.        A

‘reasonable probability’ is a probability sufficient to undermine
                                 -24-

confidence in the outcome.”5    United States v. Morrow, 412 F.

Supp. 2d 146, 158 (D.D.C. 2006) (quoting United States v. Bagley,

473 U.S. 667, 682 (1985)).     In order to be material under Brady,

the evidence must have been admissible at trial.    United States

v. Derr, 990 F.2d 1330, 1335-36 (D.C. Cir. 1993).

          1.     Police reports from the Doleman murder
                 investigation

     Wilson asserts that the government failed to disclose police

reports from the investigation into Maurice Doleman’s death.      The

four reports at issue summarize police interviews with different

witnesses who named Asay, Middleton, Cooler, and Shawn as various

individuals who might have killed Doleman.    (Def.’s Mot., Ex. 3

at 002928-32.)   At trial, the government argued that Wilson

believed that the members of the 1-5 Mob were responsible for the

death of Doleman, that there was a feud between the 1-5 Mob and

the Congress Park group, and that Wilson sought revenge by

killing Middleton.   Wilson contends that the undisclosed evidence

provides “multiple alternative theories for the death of Maurice

Doleman” and that these “factual scenarios rebut[] the motive


     5
       An inquiry based on materiality is different from one
based on sufficiency of the evidence. See United States v.
Smith, 77 F.3d 511, 512-13 (D.C. Cir. 1996) (noting that
materiality is not “gauged by a sufficiency-of-the-evidence
test”). The “‘focus is on the potential impact that the
undisclosed evidence might have had on the fairness of the
proceedings rather than on the overall strength of the
government’s case.’” United States v. Oruche, 484 F.3d 590, 597
(D.C. Cir. 2007) (quoting United States v. Cuffie, 80 F.3d 514,
517 (D.C. Cir. 1996)).
                                 -25-

evidence for the shooting of Ronnie Middleton aka Squid (and his

girlfriend Sabrina Bradley) [which was premised on the theory]

that David Wilson was looking for and trying to kill Ronnie

Middleton for years because [Middleton] had killed Maurice

[Doleman], Mr. Wilson’s alleged play brother.”    (Def.’s Mot. at

2-3.)

        While the government asserts that these reports cannot be

Brady information because they refer to “nothing more than street

rumor” (Gov’t Opp’n to Def.’s Mot. for a New Trial & J. of

Acquittal at 4), police reports identifying other possible leads

or suspects could constitute Brady material.     See United States

v. Andrews, 532 F.3d 900, 906 (D.C. Cir. 2008) (stating that the

notes underlying an interview report might be Brady material

because the notes could provide a defendant with information and

leads).    Withheld information that weakens the government’s

motive theory is potentially exculpatory under Brady.     See Mendez

v. Artuz, 303 F.3d 411, 414 (2d Cir. 2002).     Evidence that

another individual had a motive to commit the crime at issue may

weaken the inference that the defendant was involved in the

offense.    United States v. Zuno-Acre, 44 F.3d 1420, 1426 (9th

Cir. 1995).    In Zuno-Acre, the defendant argued that evidence

showing that another drug cartel member had a motive to kill a

federal agent because the agent was romantically involved with

that cartel member’s girlfriend and that the death was unrelated
                                 -26-

to the agent’s investigation of the cartel’s narcotics operations

would weaken the inference that the defendant was involved in the

murder even though he was a cartel member.    Id.    However, the

court concluded that the alternative evidence of motive did not

create a reasonable probability that the jury would have reached

a different result because there was substantial evidence showing

that the victim was tortured over a two-day period only to

uncover his knowledge of the cartel’s drug operations.     Id. at

1430.    In Mendez, the government withheld evidence documenting

that another suspect had been questioned by the police and had

admitted to taking out a contract on the victim’s life because

the suspect believed that the victim had stolen money from him.

303 F.3d at 412-13.    Mendez found that this evidence was material

under Brady and was wrongfully withheld, noting that it

“supplie[d] a possible alternative perpetrator and motive” while

the government’s theory of motive was “weak and unlikely.”      Id.

at 413.

        Here, three of the police reports raise theories that

someone other than Middleton killed Doleman, while one report

directly supports the government’s theory that Middleton murdered

Doleman.    (See Def.’s Mot., Ex. 3 at 002928-32.)   Wilson could

have sought admission of evidence that someone other than

Middleton murdered Doleman in an attempt to argue that Wilson

could not have had a motive to murder Middleton.     Thus, these
                                   -27-

police reports could constitute favorable Brady evidence,

although their character as exculpatory is not obvious.      Wilson

was not charged with or convicted of Doleman’s death in this

case.       The police reports do not directly exonerate Wilson or

lessen the force of the corroborated and credible testimony

regarding admissions Wilson made about his involvement in these

murders to others like Kelliebrew, Scott, and Cottingham.6

Unlike in Zuno-Acre or Mendez, which involved withheld evidence

of others’ motives to commit the crimes in question, the police

reports at issue in this case are directly connected to Doleman’s

death, not the Bradley and Middleton murders.      Evidence of other

suspects who might have killed Doleman is collateral to whether

Wilson believed that Middleton killed Doleman, had his own motive

to kill Middleton, or participated in the homicides.      Because the

evidence does not make it less likely that Wilson participated in

the murders, there is no reasonable probability that the result

of the proceeding would have been different had that evidence

been disclosed to the defense.      See United States v. Fields,

Criminal Action No. 98-0071 (TFH), 2006 WL 148739, at *3 (D.D.C.

Jan. 18, 2006) (rejecting Brady claim in part because the

evidence, which implicated a third person in the conspiracy only


        6
       Testimony from Cottingham was particularly compelling
given her relationship with Wilson and the fact that she, unlike
the other three witnesses, was not testifying under any deal she
had cut with the government. (Trial Tr., June 13, 2007 p.m. at
15385-87.)
                                -28-

and did not “exonerate or minimize” the defendant’s role, was not

exculpatory).7

      Wilson also contends that the police reports pertaining to

the Doleman homicide could have been used to “impeach[] what the

government witnesses testified to as historical facts in this

case[.]”   (Def.’s Reply to Gov’t Opp’n to Mot. for a New Trial at

3.)   Evidence that impeaches a government witness is often

favorable to a defendant, as “making the government’s case less

credible . . . enhances the defendant’s chances of acquittal.”

In re Sealed Case No. 99-3096, 185 F.3d 887, 893 (D.C. Cir.

1999).    For example, in United States v. Smith, 77 F.3d 511, 516

(D.C. Cir. 1996), the court found the government’s failure to

disclose an agreement to dismiss charges against a cooperator as

part of a plea agreement to be a Brady violation that warranted a

new trial.   Smith concluded that the confidence in the jury’s

verdict was undermined because “[a]rmed with full disclosure,

defense counsel could have pursued devastating cross-examination,

challenging [the witness’] assertion that he was testifying only

to ‘get a fresh start’ and suggesting that the witness might have

deliberately concealed the other favors from the Government that

were not in the written plea agreement.”   Id.   Likewise, United

      7
       Wilson cites additional evidence that the government
failed to disclose that named additional suspects in the Doleman
murder other than Middleton. (See Def.’s Suppl. to Mot. for
Consideration of Still Pending Mots., for a New Trial and for J.
of Acquittal at 3; Ex. 10.) This evidence similarly is not
plainly exculpatory.
                               -29-

States v. Cuffie, 80 F.3d 514, 518 (D.C. Cir. 1996), found that

evidence that a witness had lied under oath in a previous court

proceeding involving the same drug conspiracy was material

because such evidence was “almost unique in its detrimental

effect on a witness’ credibility.”

     However, unlike in Smith and Cuffie, here it is unclear whom

Wilson would have sought to impeach with the undisclosed

evidence.   Under the Federal Rules of Evidence, a party may

attempt to impeach a witness through evidence of character or

conduct, of conviction of a crime, or of prior inconsistent

statements.   See Fed. R. Evid. 608, 609, 613.   “[W]itnesses are

not impeached by prior inconsistent statements of other

witnesses, but by their own prior inconsistent statements.”

United States v. Tarantino, 846 F.2d 1384, 1416 (D.C. Cir. 1988).

Several witnesses testified about the Doleman murder and the feud

between the 1-5 Mob and the Congress Park group including James

Faison, Kelliebrew, Capies, and Damien Green.    With the

undisclosed reports, Wilson may have been able to cross-examine

these witnesses about feud details the reports revealed that

varied from those offered by the witnesses.   However, Wilson

could not have impeached the witnesses since the suppressed

reports do not contain prior statements of these witnesses.     They

contain only summaries of interviews of other witnesses by police

investigators.
                                 -30-

          2.     Giannakoulias’ report from the Middleton and
                 Bradley murders

     Wilson argues that the government’s failure to turn over

Detective Konstantinos Giannakoulias’ report until after the

trial began violated Brady.     (Def.’s Mot. for a Mistrial or

Dismissal of Counts 31, 32, 33, 34 at 3-4.)    Giannakoulias’

report summarized a conversation with Bradley Carter.    According

to Carter, Michael Smith stated that Aman Ball and Joseph Jones

killed Middleton and Bradley.    (Id., Ex. 1 at 1.)   Evidence that

Ball and Jones were the actual shooters contradicts the

government’s theory that Roberson shot Middleton and Bradley.

The report should have been disclosed before trial.    The report,

though, does not necessarily exculpate Wilson.    The government’s

theory was not that Wilson was a shooter, but that Wilson aided

and abetted the shooter by driving the shooter to and from the

murder scene.8   Giannakoulias’ report may directly discredit the

government’s theory as to who shot Middleton and Bradley, but it

less directly undercuts the government’s theory that Wilson

participated in the shootings.

     8
       Wilson also argues that the government should have
disclosed Detective Mike Will’s June 14, 1999 running resume
reflecting his interview of a confidential source regarding a
recorded conversation the source had with one of the perpetrators
of the Middleton and Bradley murders. (Def.’s Suppl. at 2-3.)
The report summarizes a conversation the informant had with
Roberson, in which Roberson admitted to being the trigger-man in
the murder. (Gov’t Suppl. Opp’n, Ex. B.) This evidence is not
exculpatory in any respect, as it is entirely consistent with the
government’s theory that Wilson was the driver and Roberson fired
the gun.
                                 -31-

     When the government makes a disclosure that is late but is

still during trial, “‘the defendant must show a reasonable

probability that an earlier disclosure would have changed the

trial’s result’ and not just that the evidence was material.”

Andrews, 532 F.3d at 907 (quoting United States v. Dean, 55 F.3d

640, 663 (D.C. Cir. 1995)).    “‘[A] new trial is rarely warranted

based on a Brady claim where the defendant[] obtained the

information in time to make use of it.’”    Id. (second alteration

in original) (quoting United States v. Wilson, 160 F.3d 732, 742

(D.C. Cir. 1998)).     To determine whether a defendant received a

late disclosure in time to make use of it at trial, the court can

consider the volume of the undisclosed evidence, whether counsel

had the opportunity to request a continuance, and whether there

were opportunities for a defendant to use this evidence

effectively later at trial.    Andrews, 532 F.3d at 907-08.   In

Andrews, the court rejected the defendant’s argument that he did

not have “enough time to use the material properly, to build a

responsive defense theory, or effectively impeach” a witness

where the new evidence was “hardly voluminous” at six pages long,

defense counsel had two opportunities to request a continuance,

and defense counsel received the evidence before the defense case

began.   Id. at 907.    Likewise, in Wilson, the court denied the

defendant’s motion for a new trial to remedy late disclosed

statements of a witness because the defendant used the statements

effectively on cross-examination instead of requesting additional
                                -32-

time “to determine whether there was a viable alternative

defense” based on the new evidence.    160 F.3d at 742.   The court

concluded that the defendant had “fail[ed] to show, beyond vague

generalities, how the trial would have been different with

earlier knowledge of [the witness’] statements.”   Id.

     Wilson asserts that he did not have time to investigate the

facts contained in the FBI report once trial started, that

witnesses had already testified who would have been confronted

with the police report, and that he was unprepared to cross-

examine witnesses about Jones’ and Aman Ball’s involvement in the

shooting.   (Def.’s Mot. for a Mistrial or Dismissal of Counts 31,

32, 33, and 34 at 6-7.)   Wilson also asserts that he was unable

to “weave Mr. Carter’s statement into his theory of the defense

for presentation to the jury during opening statements and during

the cross-examination[s] of . . . Mr. Capies[] and

Mr. Kelliebrew.”    (Def.’s May 28, 2007 Reply in Supp. of Mot. for

a Mistrial at 2.)

     The government, although untimely, disclosed Giannakoulias’

report approximately two months before the close of the

government’s case-in-chief, and Wilson had opportunities to use

the evidence and call witnesses.   Giannakoulias’ report was two

pages long and the trial continued for several more months after

disclosure.   Wilson’s counsel met with Carter to discuss

Giannakoulias’ report, cross-examined Carter at trial about

whether he had previously provided information to the police
                               -33-

about Middleton’s death, attempted to refresh Carter’s

recollection with Giannakoulias’ report, and reserved the right

to recall Carter later in the trial.   (Trial Tr., May 31, 2007

a.m. at 13640-44.)   Wilson sought also to cross-examine Carter on

the contents of Giannakoulias’ report, but the government’s

objection that such testimony was outside the scope of the direct

examination was sustained.9   (Id. at 13640-41.)   Wilson asserts

that he would have used the report during Kelliebrew’s and

Capies’ cross-examinations.   While Wilson could have incorporated

information from Giannakoulias’ report into his cross-examination

of Kelliebrew and Capies, Wilson did not seek to recall

Kelliebrew or Capies to testify, and the report summarizing

statements by Carter could not impeach testimony by Kelliebrew or

Capies.   Detective Giannakoulias also testified at trial as a

witness for Antwuan Ball, but Wilson did not question

     9
       Wilson also argues that the government failed to disclose
evidence that would have corroborated Carter’s statements to
Giannakoulias, namely an investigative supplemental police report
that memorialized Patrice Johnson as having identified Teeny
Man’s presence at the murder scene. (Def.’s Suppl. to Mot. for
Consideration of Still Pending Mots. for a New Trial and for a J.
of Acquittal at 1.) It is unclear how this evidence would have
corroborated what Wilson has identified as the crucial disclosure
in the Giannakoulias report –– that Carter believed that Aman
Ball and Jones killed Middleton. Even if evidence corroborating
one part of Carter’s account could also be considered to
corroborate separate and independent parts of his account,
however, the evidence likewise would have been inadmissible as
outside the scope of the direct examination. The government’s
failure to disclose the investigative supplemental police report
does not warrant a new trial for Wilson as a remedy, since
evidence must have been admissible to be material under Brady.
See Derr, 990 F.2d at 1335-36.
                                -34-

Giannakoulias.   (Trial Tr., Aug. 22, 2007 p.m. at 19209.)

Despite the government’s late disclosure of Giannakoulias’

report, Wilson did use it to investigate facts and question

witnesses, and had a sufficient opportunity to seek to recall

other witnesses for further questioning.   Wilson has not shown

that this late disclosure undermined confidence in the fairness

of the trial, or that an earlier disclosure would have changed

the trial’s result with respect to Counts 31 and 33.

            3.   Bobby Capies impeachment evidence

     Wilson also contends that the government failed to disclose

material that he could have used to impeach witness Bobby Capies

at trial.   Capies testified that in 1998, he had a conversation

with Wilson in which Wilson admitted involvement in the Middleton

and Bradley murders.   (Trial Tr., Mar. 29, 2007 p.m. at 5112-17.)

Capies also testified that although he was cooperating with

Detective Mike Will of the Metropolitan Police Department

beginning in 1999, Capies did not trust Will and ultimately cut

off communication with him.   (Trial Tr., Apr. 3, 2007 a.m. at

5429-30, 5444-46.)   Wilson argues that the government should have

disclosed a summary of a 1999 police interview with Capies which

makes no mention of Capies speaking directly to Wilson when

discussing the murders of Middleton and Bradley, police notes

that Wilson claims were written during an interview of Capies

that make no mention of Capies discussing the murders with

Wilson, and sealed Superior Court records purportedly about
                               -35-

Capies’ cooperation with law enforcement in regard to felony

charges in Superior Court.   (Def.’s Suppl. to Mot. for

Consideration of Still Pending Mots. for a New Trial and for a J.

of Acquittal (“Def.’s Suppl.”) at 2.)

     The interview summary is favorable to Wilson and is Brady

material.   The summary makes no mention of Wilson’s involvement

in the Middleton and Bradley murders.   However, Capies testified

that he learned of Wilson’s involvement in 1998, before he went

to the police to tell what he knew about the murders.     Since the

summary suggests that Capies did not mention in the interview the

1998 conversation with Wilson, Wilson could have impeached Capies

with this omission.   Even if Capies had been successfully

impeached, the admissions Wilson made about his involvement in

these murders to Kelliebrew, Scott, and Cottingham –– virtually

identical in material respects to what Capies revealed –– defeat

any reasonable probability that the result of the proceeding

would have changed.

     Nor does the other evidence Wilson cites warrant the relief

he seeks.   The interview notes that Wilson speculates reflected a

police interview of Capies (see Def.’s Suppl. at 2 (citing notes

from interviews “which at least appear to be notes of interviews

of Bobby Capies”) (emphasis added)) in fact relate to an

interview of another witness who did not testify in the trial.

(Gov’t Suppl. Opp’n at 4-5.)   Moreover, the sealed Superior Court

records Wilson claims the government blocked access to were
                                -36-

Capies’ juvenile records.   Wilson moved in the Superior Court to

obtain access to them, and the Superior Court denied the motion.

(Trial Tr., Apr. 4, 2007 a.m. at 5763-64.)     The government,

therefore, did not suppress this information.

            4.   Thomas Webb impeachment evidence

      Wilson argues that the government failed to disclose two

statements by Metropolitan Police Department officers that he

could have used to impeach the testimony of Detective Thomas Webb

at trial.   (Def.’s Suppl. at 3.)   Webb testified that he spoke

with a wounded Middleton the night of his murder after Middleton

drove to Webb’s precinct to escape his attackers, where Middleton

stated that the shooting took place at 1527 Congress Place.

(Trial Tr., June 7, 2007 p.m. at 14649, 14681.)     Wilson contends

that the government should have disclosed the statements of

Officers James Craig and L. West.      Craig’s states that Craig ran

out to the Bronco where the driver was fading in and out of

consciousness, Craig ran back inside to retrieve a flashlight,

and he returned by the time the Fire Department had arrived.      It

also contained the following question and answer: “Q: Was the

driver of this vehicle able to say anything to you at all, or did

you see or hear him saying anything to anyone else?     A: No.”

West’s says Webb questioned the driver who stated that the attack

took place at 1523 Congress Street.     (Def.’s Suppl., Ex. 8; Ex.

9.)
                                -37-

     The information in the two statements was in theory

favorable to Wilson.   Wilson might have been able to elicit

testimony from Craig that he did not observe Middleton speaking

to any officer on the scene, potentially impeaching Webb’s

testimony that he spoke with Middleton.   That is no certainty

since the question Craig answered was compound, and it is unclear

to which of the three parts of the question his answer was

directed.    Nor is it clear that his statement necessarily would

be impeaching since Craig admitted being absent from the driver

for some period of time.   Wilson also could have called West to

testify that he heard Middleton tell Webb that the attack took

place at 1523 Congress Street, not 1527 Congress Place as Webb

testified.   Eliciting this minor discrepancy in an insignificant

detail would be a dubious tactic since it would also eviscerate

any impeachment of Webb’s testimony that he interviewed

Middleton.   In any event, these non-disclosures do not require

the remedy of a new trial that Wilson seeks.   Because Webb

testified that Middleton stated that he did not know “who did

this” (Trial Tr., June 7, 2007 p.m. at 14662), his testimony did

not connect Wilson to the shooting.    The jury would not have

concluded on the basis of Webb’s testimony that Wilson aided and

abetted the murders.   Wilson’s inability to undermine Webb’s

credibility by impeaching him with information gleaned from the

two undisclosed reports would not have had any effect on the

verdict with respect to Counts 31 and 33 or undermined confidence
                                 -38-

in the fairness of the trial.    Accordingly, Wilson has not shown

that he suffered prejudice from this non-disclosure.

          5.   Cumulative effect of alleged Brady violations

     When there are multiple Brady violations alleged, a court

should examine “the cumulative effect of all such evidence

suppressed by the government” and not make “independent

materiality evaluations” only.    Kyles, 514 U.S. at 421, 441; see

also United States v. Lloyd, 71 F.3d 408, 412 (D.C. Cir. 1995).

Materiality of the suppressed evidence is to be considered in

light of the entire trial record.       United States v. Bowie, 198

F.3d 905, 912 (D.C. Cir. 1999).

     Even considering the cumulative effect of the alleged Brady

violations, there is no reasonable probability that the result

would have been different.   The police reports from the Doleman

investigation –– and any other evidence that there were suspects

other than Middleton for the Doleman murder –– while helpful, do

not directly contradict the evidence about whom Wilson held

responsible for Doleman’s death.    Nor does Wilson show that

suppression of the police reports “substantially affected the

efforts of defense counsel to impeach” the witnesses who

testified that Wilson was involved in Bradley and Middleton’s

murders, “thereby calling into question the fairness of the

ultimate verdict.”   United States v. Emor, 573 F.3d 778, 782

(D.C. Cir. 2009) (quoting Cuffie, 80 F.3d at 517).
                                 -39-

Giannakoulias’ report was disclosed approximately two months

before the close of the government’s case-in-chief, and Wilson

had ample opportunity to use this evidence at trial.    The

evidence that might have corroborated Carter’s account as

described in Giannakoulias’ report would not have been admissible

even if it had been disclosed.    Impeaching Capies based on his

omission of Wilson in his police interview could have lessened

the impact of Capies’ testimony but not the three other credible

witness accounts of Wilson admitting his involvement in the

murders.   Although Wilson might have been able to impeach Webb

based on the undisclosed police reports, he would have been able

to impeach him only as to minor collateral details of his

testimony, testimony that could not have provided a basis for the

jury’s verdict on Wilson’s aiding and abetting first degree

murder counts in any event.

     In Oruche, the court found no material violation in part

because the suppressed evidence had a negligible effect and there

was “very strong” evidence implicating the defendant.   484 F.3d

at 599-600.   As in Oruche, there was compelling evidence here

showing that Wilson had a motive to kill Middleton, and that he

drove the actual shooter who killed Middleton and Bradley to and

from the scene.   There is not a reasonable probability that, in

totality, the suppression of the favorable evidence cited by

Wilson would have affected the outcome of the trial in light of

the substantial evidence that he played a role in the shootings.
                                -40-

Wilson’s motion for a new trial based on Brady violations

therefore will be denied.

     B. False testimony

     Wilson also moves for a new trial on the ground that the

government sponsored and failed to correct Damien Green’s false

testimony.   The government may not knowingly use false testimony

to obtain a conviction.   Napue, 360 U.S. at 269.   “‘[A]

conviction obtained by the knowing use of perjured testimony is

fundamentally unfair, and must be set aside if there is any

reasonable likelihood that the false testimony could have

affected the judgment of the jury.’”   United States v. Gale, 314

F.3d 1, 3 (D.C. Cir. 2003) (quoting United States v. Agurs, 427

U.S. 97, 103 (1976)); see also United States v. Quinn, 537 F.

Supp. 2d 99, 120 (D.D.C. 2008) (“Because the integrity of our

justice system relies on the presentation of truthful evidence

for a jury to evaluate, ‘the prosecution’s knowing use of false

testimony entails a veritable hair trigger for setting aside the

conviction.’” (quoting Gale, 314 F.3d at 4)).    To demonstrate

that the court should set aside a conviction on these grounds, a

“defendant must show that (1) the evidence was actually false;

(2) the prosecution knew or should have known that the testimony

was false; and (3) the false testimony was material.”   Fields,

2006 WL 148739, at *2.    In determining materiality, a court must

assess whether “‘the false testimony could in any reasonable

likelihood have affected the judgment of the jury.’”    United
                               -41-

States v. Burch, 156 F.3d 1315, 1329 (D.C. Cir. 1998) (quoting

Giglio v. United States, 405 U.S. 150, 154 (1972)).     While one

court has required the allegedly false statement to be the result

of a “willful intent to provide false testimony, rather than as a

result of confusion, mistake or faulty memory,” United States v.

Edmonds, 870 F. Supp. 1140, 1146 (D.D.C. 1994), other courts have

required only that the evidence be false, regardless of whether

such evidence resulted from confusion or mistake.    See, e.g.,

Drake v. Portuondo, 553 F.3d 230, 242 n.7 (2d Cir. 2009); United

States v. Cargill, 17 F. App’x 214, 224 (4th Cir. 2001).

     Wilson argues that Green’s testimony at trial was

inconsistent with his prior testimony about two events.    First,

Green testified here that he was with Mussy, his cousin Anthony,

and Brad by Monkey Mark’s house when Anthony started shooting at

Tweety, Wilson, and Joonie.   (Trial Tr. June 5, 2007 p.m. at

14186-87.)   By comparison, in a trial captioned United States v.

Edelin, Green testified that Anthony and Muncee told him about a

time when Anthony shot at Pete, Tweety, and Joonie.    (Def.’s Mot.

for a Mistrial, Ex. 1 at 13974-76.)    Wilson asserts that Green

changed his testimony in this case by substituting Wilson for

Pete and stating that he personally witnessed the incident.

(Def.’s Mot. for a Mistrial at 2.)

     Next, Green testified at trial about seeing Middleton shoot

at Tweety and seeing Wilson run away while holding a gun.    (Trial

Tr., May 31, 2007 p.m. at 13820).     On December 5, 1997, Green
                               -42-

testified before a grand jury about an incident where he saw

Middleton shoot at Tweety and saw Cootie running away.   (Def.’s

Suppl. to Mot. for a Mistrial, Ex. 3 at 32.)    Wilson argues that

Green is referring to the same incident on both occasions, but

described the event differently each time.   In particular, Green

mentioned the involvement of Cootie and Spook before the grand

jury, while in this case he mentioned Wilson.   (Def.’s Suppl. to

Mot. for a Mistrial at 1.)   Wilson was not allowed to re-cross

Green, and Wilson now contends that the government failed to

correct Green’s erroneous testimony and that the “the jury [was]

left thinking that Mr. Green testified consistently at the Edelin

trial[,] while the truth is that he did not.”   (Def.’s Mot. for a

Mistrial at 2.)

     Wilson has not established conclusively that Green testified

falsely.   He has not shown that the incident Green testified

about in Edelin involving Pete, Tweety, and Joonie is the same

incident described at trial involving Wilson, Tweety, and Joonie.

Although there are factual similarities between the incidents,

Wilson offers no basis for adopting an assumption that Green was

describing the same event, and factual differences suggest these

may have been different events.   For example, Green testified at

trial that he witnessed Middleton shooting at Wilson while

“standing in the cut by Monkey Mark[’s] house.”   (Trial Tr.,

June 5, 2007 p.m. at 14186.)   By comparison, Green testified in

Edelin that he was at Mush’s house when he heard Anthony shooting
                                -43-

at Pete and ran down the block toward Anthony.   (Def.’s Mot., Ex.

1 at 13976.)    When asked at this trial whether he had testified

in Edelin about the Wilson, Tweety, and Joonie incident, Green

initially answered yes (Trial Tr., June 5, 2007 p.m. at 14142-

43), but later asserted twice that he had not discussed the

Wilson, Tweety, and Joonie shooting in Edelin.    (Id. at 14144,

14188.)

     Furthermore, Green may have described the event where

Middleton fired at Tweety differently at trial than he did before

the grand jury, but Wilson does not assert exactly which

statements were false.   Contrary to Wilson’s argument that Green

“never referred to Mr. Wilson as Cootie” in this trial (Def.’s

Suppl. to Mot. for a Mistrial at 1), Green stated at trial that

he knew of a person named “Wop,” who had a nickname of “Cootie,”

and identified Wilson as Cootie.   (Trial Tr., May 31, 2007 p.m.

at 13782-83.)

     For the second prong, Wilson contends that the government

knew or should have known that Green’s testimony was false.

While the government may have possessed Green’s testimony before

the grand jury and from Edelin, Wilson does not offer evidence

that the government knowingly sponsored false testimony.    At

best, he has established that the testimony may have been

inconsistent.   Mere inconsistency is insufficient to warrant the

relief he seeks.   See United States v. Harrison, 103 F.3d 986,

989 (D.C. Cir. 1997) (rejecting the defendant’s argument that the
                               -44-

government relied on perjured testimony because “even if the

testimony is inconsistent, an inconsistency between the grand

jury and trial statements of a witness does not by itself support

an inference that the Government knowingly sponsored false

testimony”); United States v. Martin, 59 F.3d 767, 770 (8th Cir.

1995) (noting that “[a] challenge to evidence through . . . prior

inconsistent statements [is] insufficient to establish

prosecutorial use of false testimony” (internal quotation marks

omitted) (second alteration in original)); Simental v.

Matrisciano, 363 F.3d 607, 615 (7th Cir. 2004) (“[M]ere

inconsistencies in testimony by government witnesses do not

establish the government’s knowing use of false testimony.”

(internal quotation marks omitted)).

     Even if Green testified falsely, and the government knew

about the false statements, there must also be a reasonable

probability that the false statements could have affected the

judgment of the jury to warrant a new trial.    United States v.

Diggs, 161 F. App’x 7, 8 (D.C. Cir. 2005).     When there is

inconsistent testimony, a court considers the importance of the

testimony to the convictions, United States v. Anderson, 509 F.2d

312, 328 (D.C. Cir. 1974), and the other evidence presented at

trial.   For example, in Burch, 156 F.3d at 1328, the defendant,

who was convicted of crack possession, argued that the government

had a duty to alert the court about a discrepancy between his

accomplice’s trial testimony for the government elicited under a
                               -45-

cooperation agreement and the investigator’s debriefing notes

concerning whether the witness received sixty-two grams of crack

from a certain supplier.   Burch concluded that “[e]ven if the

jury had been made aware that [the witness] told the DEA agent

that she had received 62 grams from [a supplier] at some

point[,]” the jury’s final verdict was unlikely to have been

influenced because the defendant had already admitted ownership

of this crack, the witness’ credibility had already been

“thoroughly compromised by her own admissions of prior drug use

and dealing[,]” and “solid evidence establish[ed] [the

defendant’s] guilt.”   Id. at 1329.   Likewise, in United States v.

Price, 357 F. Supp. 2d 63, 69 (D.D.C. 2004), the court concluded

that a witness’ false testimony about his credentials did not

affect “the judgment of the jury, in light of the other evidence

introduced in the case against the defendant.”   Wilson

extensively cross-examined Green about his prior testimony in

Edelin and raised several issues affecting his credibility,

including his cooperation with the government and the benefits he

received, his prior drug use, and his prior involvement in acts

of violence and drug distribution.    (Trial Tr., June 5, 2007 a.m.

at 14092-97; June 5, 2007 p.m. at 14108-16, 14160-66.)    Even if

Wilson had shown that Green testified falsely, these

inconsistencies would not reasonably have affected the jury’s

verdict, especially given the substantial evidence that Wilson

had a motive to harm Middleton and was involved in his death.
                                 -46-

Wilson’s motion for a new trial based on Green’s allegedly false

testimony will be denied.

                      CONCLUSION AND ORDER

     The evidence, when viewed in the light most favorable to the

verdict, permitted a reasonable jury to find beyond a reasonable

doubt the essential elements of all the offenses of which Wilson

was convicted except Count 11.    No new trial is warranted by the

government’s failure to disclose potentially favorable evidence

since its disclosure would not likely have affected the outcome

or fairness of the trial, or by Green’s testimony since the

testimony was not demonstrably false or material.    Accordingly,

it is hereby

     ORDERED that the defendant’s motion [1233] for consideration

of still pending motions, for a new trial, and for a judgment of

acquittal be, and hereby is, GRANTED with respect to a judgment

of acquittal on Count 11, and DENIED in all other respects.     The

jury’s verdict of guilty on Count 11 as to David Wilson is hereby

SET ASIDE, and a verdict of not guilty on Count 11 hereby is

ENTERED.

     SIGNED this 3rd day of July, 2010.


                                 __________/s/_______________
                                 RICHARD W. ROBERTS
                                 United States District Judge
