Saturday, March 15, 2008
D.C. Follies: District Court For The District of Columbia Misapplies Brady Doctrine In Drug Bust Case
The D.C. Circuit's recent opinion in United States v. Johnson, 2008 WL 638614 (D.C. Cir. 2008), lays bare another district court's failure to properly apply the Brady doctrine, derived from Brady v. Maryland, 373 U.S. 83 (1963). In Johnson, an undercover officer radioed to inform Officers Jason Pearce and Steven Franchak, Investigator Steven Manley, and Detective David Dessin that a Blue Buick was "driving crazy" and heading toward them. These men then saw Johnson pull up in the Buick, double-park, get out of the car while leaving it idling, and approach an unoccupied green Chrysler that was parked on the other side of the street.
They then saw Johnson get into the Chrysler's driver's seat, lean over, and begin examining something in the vicinity of the passenger's seat. When they got out of their car, Johnson looked up and noticed them. His eyes then "widen[ed] and his mouth kind of f[ell] half open and he start[ed] fumbling with the driver's side door." He "looked very shocked and ... it took him several spastic actions to get the door open and he darted up out of the car." Pearce then directed Johnson to sit back down in the car, and Johnson did, but began reaching quickly around his waist area. Concerned, Pearce asked him to step out of the car, and when he did, Pearce smelled alcohol on his breath. Manley then saw an open container of alcohol inside the blue Buick. Pearce then handcuffed Johnson and told him that he was being arrested for possession of an open container of alcohol in an automobile. While arresting Johnson, Pearce found either on Johnson or in his car a semiautomatic handgun, two ziplock bags containing a "green plantlike substance," $1883 in cash, and several ziplock bags containing "white chunks of rocklike substance."
Johnson was subsequently charged with and convicted of (1) possession of a firearm by a convicted felon; (2) possession with intent to distribute five grams or more of cocaine base; (3) using, carrying, and possession a firearm in relation to a drug trafficking offense; and (4) simple possession of marijuana. These convictions came after the district court denied Johnson's motion to suppress the gun and drug evidence on the ground that it was the fruit on an unlawful detention. After Johnson was convicted, he moved for a new trial before the district court, claiming, inter alia, that the government failed to disclose Brady material that could have been used to impeach Officer Franchak's testimony. The alleged Brady material was an official MPD reprimand of Franchak, based on the results of an Office of Citizen Complaint Review investigation, for conducting an unexplained traffic stop and harassing the driver in 2001. The district court rejected this argument, finding that the reprimand would not have been admissible at trial, and hence was not favorable to Johnson, because it would have been barred by Federal Rule of Evidence 608(b).
On appeal, Johnson again made his suppression argument, and the D.C. Circuit rejected it. Johnson also re-raised his Brady argument, and the D.C. Circuit noted that Brady compels a new trial when the prosecution fails to timely disclose evidence favorable to an accused where the evidence is "material" either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution; evidence is "material" when there is a reasonable probability that, had the evidence been timely disclosed to the defense, the result of the proceeding would have been different. The D.C. Circuit then found that it did not need to decide whether the district court properly found that Franchak's reprimand was admissible because even if it were, it was not material. The court came to this conclusion because Franchak did not testify at the suppression hearing and was only one of several arresting officers who testified about the circumstances of Johnson's arrest.
In dicta, however, the D.C. Circuit properly suggested that the district court's Brady ruling with regard to admissibility was wrong. The D.C. Circuit noted that while the district court was correct that extrinsic evidence of Franchak's reprimand would have been inadmissible under Federal Rule of Evidence 608(b), that rule also provides that the reprimand could have been used to impeach his credibility at trial. The D.C. also correctly noted that the Supreme Court has found that the prosecution's failure timely disclose either material exculpatory or impeachment evidence can form the basis for a Brady violation. Thus, in my mind, the district court clearly misapplied the Brady doctrine.
(Of course, another aspect on the district court's decision which I think was wrong was its implicit holding that only a prosecution's failure to disclose admissible, as opposed to inadmissible, evidence can form the basis for a Brady violation. As I've argued before, I am opposed to such a per se rule, but the District Court for the District of Columbia clearly disagrees. See United States v. Edelin, 128 F.Supp.2d 23, 41 (D.D.C. 2001).