USA v. Gale, Robert, No. 01-3011 (D.C. Cir. 2003)

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 4, 2002 Decided January 7, 2003

No. 01-3011

United States of America,

Appellee

v.

Robert Gale,

Appellant

Appeal from the United States District Court

for the District of Columbia

(No. 95cr00297-02)

A. J. Kramer, Federal Public Defender, argued the cause

and filed the briefs for appellant.

Mary B. McCord, Assistant U.S. Attorney, argued the

cause for appellee. With her on the brief were Roscoe C.

Howard, Jr., U.S. Attorney, John R. Fisher, and Carolyn K.

Kolben, Assistant U.S. Attorneys. Mary-Patrice Brown, As-

sistant U.S. Attorney, entered an appearance.

 Before: Randolph and Rogers, Circuit Judges, and

Williams, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

Williams.

Williams, Senior Circuit Judge: Johnny St. Valentine

Brown for years testified as an expert witness for the govern-

ment in narcotics cases. But it later developed that Brown

was something of a con man himself, so much so that he was

charged with and pleaded guilty to having committed perjury

about his educational background. Among the trials at which

he testified was that of Robert Gale, who was convicted of

possession of marijuana and possession of heroin with intent

to distribute. Thus we again consider the effects of Brown's

testimony on the adequacy of a trial. Compare, e.g., United

States v. Williams, 233 F.3d 592 (D.C. Cir. 2000).

Gale challenges his convictions under the federal habeas

corpus statute, 28 U.S.C. s 2255, arguing that the prosecution

violated Brady v. Maryland, 373 U.S. 83 (1963), by (1)

knowingly offering perjured testimony by Brown at the trial

itself, thereby fatally tainting the trial, and (2) failing to

disclose Brown's past perjuries. We will assume in Gale's

favor that the government's connections to Brown were such

that it could be said to have the requisite knowledge to

trigger the precedents Gale invokes. But Gale has offered no

reason to think that Brown's testimony at his trial was

perjurious. And, again assuming that the government could

be said to have had the kind of knowledge or notice of

Brown's past perjuries to create an obligation to disclose

them to Gale, the non-disclosure was irrelevant because there

is no "reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would

have been different." United States v. Bagley, 473 U.S. 667,

682 (1985) (opinion of Blackmun, J.).

* * *

The facts of Gale's case have been set out at length in his

direct appeal, United States v. Gale, 136 F.3d 192 (D.C. Cir.

1998), so we will repeat them here only as relevant to his

s 2255 action. He was arrested in an apartment where the

police found drug-related paraphernalia, including bagging

equipment, ziplock bags, white powder, cutting agents, razor

blades, measuring equipment, electronic scales, plastic gloves,

cellular phones, beepers, and nine Amtrak tickets in various

names. Although the police recovered no drugs from Gale

himself, his co-defendant, who was with Gale in the apartment

at the time, possessed both cocaine base and 118 ziplock bags

of a mixture of cocaine and heroin. The apartment also

contained cocaine powder on a paper plate, more cocaine in a

box in the kitchen, and marijuana in the living room and

kitchen.

Brown, who had no role in the arrest or other events

leading to the prosecution, testified as an expert witness on

narcotics. He said that he was "presently a narcotics consul-

tant to the Metropolitan Police Department [("MPD")] in the

District of Columbia." As the prosecutor sought to establish

Brown's qualifications as a narcotics expert, defense counsel

said, "I have no objection if he's seeking to qualify Detective

Brown. If he wants to go on, that's fine, too." The prosecu-

tor then continued briefly, establishing that Brown had previ-

ously been an active member of the MPD for 26 years, during

which, Brown said, he "worked homicide, checking fraud,

robbery, prostitution, gambling, and of course my last assign-

ment, which lasted for 22 years, was as a narcotics investiga-

tor with the Narcotics and Special Investigations Division

[("NSID")]."

Brown testified that in his 22 years at NSID, he probably

had worked on 1,500 narcotics cases and had become familiar

with how heroin and cocaine are packaged, sold, and used in

the District of Columbia. Brown did not testify about his

educational background (the subject of his false testimony

that ultimately led to his perjury convictions) nor about being

qualified as an expert in other cases. Without objection from

the defense, the court allowed Brown to testify as an expert.

Brown explained generally how cocaine and heroin are

packaged and sold in the city, identifying how various items

found at the apartment are used. As is relevant to this

appeal, Brown described "what we call a 'pev' in the pharma-

cy world," which he said was "used to crush items that are in

a rock-hard form. You pulverize it, you break it down into a

crystalline or powder form." He also explained that rubber

gloves can be used in the drug preparation process to prevent

transferring residue from hand to mouth. And he testified as

to the street values of various substances and explained the

chain-of-custody procedures used by MPD and the Drug

Enforcement Administration to safeguard narcotics evidence.

In addition, Brown testified generally about the risks asso-

ciated with the drug business, including "being ripped off,

stuck up or robbed, or the possibility of the substances being

seized by the police." Because of these risks, he testified, a

drug trafficker "would never allow anyone that's not involved

in the business to even be in any way associated, especially if

the place where those substances are being prepared, what

we call a 'bag-up house,' is being prepared for distribution

purposes."

The jury found Gale guilty, and he was sentenced to 121

months of incarceration followed by three years of supervised

release. We upheld the conviction and sentence. See United

States v. Gale, 136 F.3d 192.

In his petition under s 2255 Gale argued that the govern-

ment had violated the Brady rule in two ways. First, he said,

it had introduced testimony that it knew or should have

known was perjured, specifically various aspects of Brown's

self-identification as an expert. Second, he said the govern-

ment violated Brady by failing to disclose that Brown had

committed perjury in other cases and had lied in a prior

application for re-employment at the MPD. Gale also sought

discovery "to determine the nature and extent of Brown's

perjury."

The district court rejected Gale's petition and denied his

request for discovery. We affirm for reasons similar but not

identical to those given by the district court.

 * * *

Gale first contends that his trial was tainted because Brown

committed perjury at that trial. Gale cites three instances:

while Brown used the phrase "we in the pharmacy world"

(when referring to "what we in the pharmacy world call a

'pev' "1), in fact he had no pharmacy degree; while Brown

said that he had "worked homicide," in fact he was never

specifically assigned to the homicide division or as a homicide

investigator; and while he identified himself as a "narcotics

consultant" to the MPD, he was at the time not officially

employed by the MPD.

Under United States v. Agurs, 427 U.S. 97 (1976), "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." Id. at 103 (footnote

omitted). We assume arguendo that the government's use of

the challenged testimony, to the extent it was false, could--

because of Brown's various professional links to the govern-

ment--be viewed as "knowing use" within the meaning of

Agurs. But as the district court found, Gale has failed to

show that Brown's statements were false.

While Brown did not possess a pharmacy degree, he didn't

claim to: rather, he merely implied an affiliation with "the

pharmacy world," something he undoubtedly had in light of

his years of investigating and testifying about the process of

making, packaging, and distributing drugs, albeit illegal ones.

Nor can we say that his statement about having "worked

homicide" was perjury. Brown testified that he "worked

homicide, checking fraud, robbery, prostitution, gambling,

and of course my last assignment, which lasted for 22 years,

__________

1 Gale does not contend that the use of the term "pev" consti-

tuted perjury. At trial, Brown stated that a "pev" is a pharmaceu-

tical tool "used to crush items that are in rock-hard form." While

not characterizing this statement as perjury, Gale notes in his reply

brief that he has been unable to find a definition of the term.

Reply Br. at 9. Our searches have been equally unavailing.

was as a narcotics investigator." Gale has presented no

argument that Brown did not work on homicide cases, only

that he was never expressly assigned to a homicide division.

That is not enough to make Brown's general statement

perjury. Finally, Gale presented no reason to doubt that

Brown was a "narcotics consultant" to the government, as he

was an expert appearing in numerous cases on the govern-

ment's behalf. Nor is there any "reasonable probability" that

any gap between Brown's statements and perfect truth on

these trivial and peripheral issues could have affected the

judgment of the jury. Thus there can be no Agurs violation.

Second, Gale argues that the government committed a

Brady violation by failing to advise him of Brown's prior

perjuries and the incomplete information on his job applica-

tion. Again we assume in Gale's favor that it is possible to

attribute Brown's knowledge of his past perjury to the prose-

cutors for Brady purposes. Compare United States v.

Brooks, 966 F.2d 1500, 1502-05 (D.C. Cir. 1992) (discussing

scope of prosecutor's obligation to search for potentially

exculpatory materials). Gale's claim fails, nonetheless, be-

cause the non-disclosure was immaterial.

Whereas the prosecution's knowing use of false testimony

entails a veritable hair trigger for setting aside the conviction

("any reasonable likelihood that the false testimony could

have affected the judgment of the jury," see Agurs, 427 U.S.

at 103), non-disclosure of exculpatory evidence (including

impeachment evidence) is governed by a more general stan-

dard: "[F]avorable evidence is material, and constitutional

error results from its suppression by the government, 'if

there is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would

have been different.' " Kyles v. Whitley, 514 U.S. 419, 433-34

(1995) (quoting United States v. Bagley, 473 U.S. 667, 682

(1985) (opinion of Blackmun, J.); Bagley, 473 U.S. at 685

(White, J., concurring in part and concurring in the judgment

and in the formula above). The defendant bears the burden

of showing a reasonable probability of a different outcome.

See Strickler v. Greene, 527 U.S. 263, 291 (1999). In applying

this test, the court must consider the non-disclosure dynami-

cally, taking into account the range of predictable impacts on

trial strategy. See, e.g., United States v. Bowie, 198 F.3d 905, 909-12 (D.C. Cir. 1999).

Gale's arguments do not meet this burden. He has offered

no reason to believe that, had the impeachment evidence in

question "been disclosed to the defense," the government

would have foolishly charged ahead, blindly offering Brown

and exposing itself to his inevitable demolition on cross. Why

would it have done so, rather than simply offering another

expert? Brown's expertise was drawn not from his command

of some arcane field but from an experience that is widely-

shared in urban police forces: he had investigated narcotics

cases for many years. Moreover, while the government has

argued that it had several narcotics experts available from

MPD (and identified one in particular, Sergeant Brennan,

who is a 25-year veteran narcotics investigator), Gale has

offered nothing suggesting that Brown could not have been

replaced with a similarly qualified witness. This case is thus

unlike the ones cited by Gale, Kyles v. Whitley and Strickler

v. Greene, 527 U.S. 263 (1999), in both of which the impeached

witness was a fact witness who could not be readily replaced.

By contrast, in our case of United States v. Williams, 233 F.3d 592 (D.C. Cir. 2000), although applying a different

substantive standard to a Rule 33 motion for a new trial, we

noted the availability of other experts to offer exactly the

same evidence as Brown. Id. at 595. For other cases

involving readily replaceable witnesses, see United States v.

Matthews, 168 F.3d 1234, 1242-43 (11th Cir. 1999); United

States v. Garcia, 13 F.3d 1464, 1472 (11th Cir. 1994).

Gale raises two objections. First, he cites hearsay from

news articles suggesting that Brown was a particularly char-

ismatic expert witness, and argues that a replacement would

have been less effective. We see no reason to credit such

hearsay--other defendants are convicted both in the District

of Columbia and across the country when experts other than

Brown testify. Even if Brown had been the "best" expert

witness, we have no reason (and no evidence) to believe that

the "second best" witness would have been materially inferi-

or. Furthermore, the "charisma" argument on which Gale

relies is precisely the type of demeanor evidence that disap-

pears at the time of trial. See, e.g., United States v. Zeigler,

994 F.2d 845, 849 (D.C. Cir. 1993); Dyer v. MacDougall, 201 F.2d 265, 269 (2nd Cir. 1952). Thus the evidence Gale offers--

hearsay regarding evanescent evidence of charisma--does not

create a reasonable probability that government use of a

different expert with similar experience in narcotics cases

would have changed the result.

Second, Gale argues that Brown's testimony that persons

not involved in the drug trade would not be in an apartment

used for packaging drugs was particularly damaging to Gale's

defensive claim that he just happened to be present. Gale

goes on to suggest--but not affirmatively argue--that only

Brown would have been willing to offer such testimony:

His expert claim that only those "involved" in the drug

business would be present in an apartment containing

drugs--which was devastating to Mr. Gale's defense in

this case--seems particularly suspect. The government

did not submit any declaration from any other expert

expressing agreement with Brown's testimony in Mr.

Gale's case.



To the extent that Gale is simply arguing that the testimo-

ny in question may have been overstated, we assume that to

be true. Surely a non-participant might be present in an

apartment containing drugs because, for example, the drugs

and drug paraphernalia were hidden, or because the non-

participant's presence was momentary and accidental. But

Gale never articulates such an argument, likely because any

such overstatement (besides being easily torpedoed on cross)

was wholly irrelevant to him--who at the time officers en-

tered had been sleeping in the apartment, which was positive-

ly littered with drugs and drug paraphernalia in plain view.

See United States v. Gale, 136 F.3d at 193-94. In fact, until

pressed at oral argument, Gale did not even claim that

Brown's statement in this regard was false but merely that

there are "questions about the truth of everything to which

[Brown] testified."

 Further, any suggestion that, as a matter of substance,

only Brown would give such testimony is plainly untrue.

Indeed, in a case now on the court's docket, a Detective

Tyrone Thomas from the MPD provided the following testi-

mony:

Everybody who is a part of that has a role in that drug

operation, maybe one of those roles that I mentioned

earlier, and that's to oversee those operations. I mean,

it's--nor would anyone want to go around and just be

hanging around a scenario where some large quantities

of narcotics are gonna be sold because they're not gonna

want to risk being caught up in a situation like that

unless they have some method or role involved in the

drug operation.



Just like somebody going to rob a bank, they're not

gonna take a friend along just for the ride; nor is that

friend gonna want to be going to where somebody is

gonna rob a bank.



United States v. Bailey, No. 99-164-4, Tr. Vol. VI, 1/26/01, p.

5. (We of course express no opinion as to the permissibility

of testimony so formulated.) In light of other experts who

have offered substantively similar testimony and Gale's fail-

ure to even allege before argument that the cited testimony

was false, we cannot say that Gale has shown a "reasonable

probability" of a different result had the government dis-

closed the potential impeachment evidence against Brown.

Finally, we reject Gale's argument that the trial court

erred in denying his request for further discovery about

Brown's alleged perjury in this and other trials, and materials

"reflecting knowledge" of Brown's perjuries within the gov-

ernment. We review the district court's denial of this request

for abuse of discretion. Bracy v. Gramley, 520 U.S. 899, 909

(1997). We find no such abuse, as there was no real chance

that discovery could have turned up information altering the

outcome. As we have seen, there is no serious claim of

perjury in Gale's trial. And with respect to knowing use of a

perjurer, additional discovery would be of no use because we

have assumed in Gale's favor government knowledge of

Brown's perjurious inclinations but found no Brady violation:

were that assumption true and the information disclosed to

the defense, the government would have replaced Brown with

a different expert.

The judgment of the district court is

Affirmed.