966 F.2d 1500 (D.C. Cir. 1992), 91-3235, U.S. v. Brooks

Docket Nº:91-3235.
Citation:966 F.2d 1500
Party Name:UNITED STATES of America, Appellee, v. Xavier BROOKS, Appellant.
Case Date:June 19, 1992
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 1500

966 F.2d 1500 (D.C. Cir. 1992)

UNITED STATES of America, Appellee,

v.

Xavier BROOKS, Appellant.

No. 91-3235.

United States Court of Appeals, District of Columbia Circuit.

June 19, 1992

Argued March 6, 1992.

Page 1501

Appeal from the United States District Court for the District of Columbia (Criminal Number 90-00332-01).

Mary E. Davis, with whom Christopher M. Davis (appointed by the Court) was on the brief, for appellant.

G. Bradley Weinsheimer, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John R. Fisher, Thomas C. Black, and Erik P. Christian, Asst. U.S. Attys., were on the brief, for appellee.

Before: MIKVA, Chief Judge, SILBERMAN and WILLIAMS, Circuit Judges.

Opinion for the Court filed by Circuit Judge WILLIAMS.

STEPHEN F. WILLIAMS, Circuit Judge:

A jury found Xavier Brooks guilty of various drug charges in October 1990. 1 About six weeks after that trial, police officer Christie Hoyle, the government's chief witness, was fatally shot in the apartment of a fellow officer, David Rowland, evidently with her own service revolver. Later (and apparently without knowledge of the shooting), the judge granted a motion for a new trial, explaining that he was troubled by discrepancies in the testimony, by behavior of the defendant that seemed not to match that of a competent drug dealer, and by a possibly erroneous admission of evidence. See Order and Memorandum of February 19, 1991 (D.D.C. No. 90-0332). At the second trial, the government offered the transcript of Hoyle's original testimony under Federal Rule of Evidence 804(b)(1), which allows use of an unavailable witness's former testimony under some circumstances, and the court admitted it. A second guilty verdict followed. Because the government failed to check pertinent files for information possibly reflecting on Hoyle's credibility, see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), we remand for the trial court to require such a search.

* * * * * *

Before the start of the second trial, defense counsel sought either to secure, or to cause the court to examine, any files of the Metropolitan Police Department relating to Hoyle's death. 2 Understandably, counsel was somewhat vague on what he expected the files to show, but the gist of his argument was that a police officer shot with her own revolver in the presence of a fellow officer might have had some sort of problem that would bear on her credibility. As Officer Rowland had been present, defense counsel focussed on the possibility of an "Internal Affairs Division" file on Rowland and his relation to the death. Vernon Gill, General Counsel of the Police Department, attended a preliminary session of court, bringing with him Hoyle's personnel file. The district judge read the personnel file and declared it free of material undermining Hoyle's credibility. In addition, Gill represented to the court that there was no Internal Affairs Division investigation of Hoyle or her death. At the same time, he noted that he had not been asked whether there was a homicide investigation file, and that he had "no knowledge" of any such file but that he presumed one existed. The Assistant U.S. Attorney, inadvertently we assume, recharacterized Gill's statements

Page 1502

as a denial that there was a "file by the Internal Affairs Division or anything concerning officer Christie Hoyle" (emphasis added). It is plain that Gill did not deny the existence of an Internal Affairs file on Rowland, which might bear on Hoyle's conduct or character, or the existence of a homicide file on the shooting itself. 3 The assistant's mischaracterization, however, suggests the presence of considerable confusion in the courtroom, confusion that the assistant's mischaracterization doubtless aggravated.

We need not review the evidence at trial, except to note that Hoyle's testimony was plainly critical. She said that she purchased crack from Brooks for $40 and that she saw him hide some ziplock bags containing rock-like substances, bags that other officers later found in the place she identified. Without this evidence, the government had no case against Brooks, as only Hoyle's testimony linked him to the crack she said she bought from him or to the stash of crack found by the other officers.

Brooks's claim here raises two threshold issues that this circuit has expressly left open, see United States v. Kelly, 790 F.2d 130, 135 n. 2 (1986): first, whether the prosecution's Brady obligations include not only a duty to disclose exculpatory information, but also a duty to search possible sources for such information; second, if the duty exists, whether it extends to files in the possession of agencies other than the prosecutor's office (conceived here as simply the U.S. Attorney's office).

In resolving these questions, the Supreme Court's identification of the essence of the Brady rule is of little help:

The heart of the holding in Brady is the prosecution's suppression of evidence, in the face of a defense production request, where the evidence is favorable to the accused and is material either to guilt or to punishment. Important, then, are (a) suppression by the prosecution after a request by the defense, (b)...

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