USA. v. Bowie, No. 98-3146

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: Randolph
• Citation: 198 F.3d 905
• Parties: (D.C. Cir. 1999) United States of America, Appellee v. Walter J. Bowie, Appellant Consolidated with
• Decision Date: 21 December 1999
• Docket Number: No. 99-3027,No. 98-3146

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198 F.3d 905 (D.C. Cir. 1999) United States of America, Appellee
v.
Walter J. Bowie, Appellant No. 98-3146 Consolidated with No. 99-3027 United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued November 18, 1999
Decided December 21, 1999

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Appeals from the United States District Court for the District of Columbia(98cr00008-01)

Paul L. Knight, appointed by the court, argued the cause and filed the briefs for appellant.

Barbara A. Grewe, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Wilma A. Lewis, U.S. Attorney, and John R. Fisher and Elizabeth Trosman, Assistant U.S. Attorneys. Mary-Patrice Brown, Assistant U.S. Attorney, entered an appearance.

Before: Sentelle and Randolph, Circuit Judges, and Buckley, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge Randolph.

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Randolph, Circuit Judge:

As the rules governing criminal trials multiply, even the simplest prosecution can generate a host of legal errors. We have before us a three-witness case, charging unlawful possession of a firearm and assault on two police officers. Yet there are problems with the indictment, with the government's failure to disclose evidence to the accused, with the standard used to assess the effect of this, and with the sentence. The case must be remanded, at least for resentencing, as the government now acknowledges. Among the open questions is whether there must also be a new trial.

I

Walter J. Bowie went to trial in March 1998 on a three count indictment. The first count charged that, as a convicted felon, he unlawfully possessed a firearm. See 18 U.S.C. 922(g)(1). The other counts charged him with assaulting, resisting, opposing, impeding and interfering with a police officer "while armed with a deadly or dangerous weapon," in violation of local law. Each of these two counts closed with the same parenthetical: "(Assaulting, Resisting, or Interfering with a Police Officer While Armed With a Dangerous Weapon, in violation of Title 22, District of Columbia Code, Sections 505(b) and 3202(a)(1))".

The prosecution and defense stipulated to Bowie's status as a convicted felon. The district court denied a motion to suppress and trial commenced. The prosecution called Lonnie Moses and Paul Riggins, both police officers, and an expert witness. The defense called no one. Officer Moses testified that he saw Bowie on the street receiving money from an unidentified man and handing the man something in return. He told officer Riggins what he had witnessed. The officers approached the men, Moses wearing a vest with the word "Police" across the front, Riggins in full uniform. The unidentified man walked away. When Moses called out, Bowie came toward the officers. As Moses reached for Bowie's arm, Bowie knocked the officer's hand away and then shoved him in the chest. A struggle ensued. According to Moses, as he and Riggins were wrestling Bowie to the ground, trying to handcuff him, Bowie kept reaching into his waist area. When they finally subdued him, and stood him up, Moses pulled up the front of Bowie's shirt and a loaded .357 magnum--a large pistol--fell out, hitting Moses on the shin. Officer Riggins's version of the events tallied with that of Moses, except that Riggins testified the pistol fell out while they were still struggling to get Bowie to the ground. The government's expert testified that the pistol had been manufactured in Connecticut. The jury returned a verdict of guilty on all counts.

About a month later, the prosecutor sent a letter to defense counsel disclosing that Moses was under investigation by the United States Attorney's Office regarding his testimony in an unrelated case and that the investigation had begun before Bowie's trial. This information had not been revealed before trial although Bowie's attorney had requested the government to provide all material and information covered by Brady v. Maryland, 373 U.S. 83 (1963). Bowie's attorney responded to the letter with a motion for a new trial. During the hearing on the motion, more details emerged about the investigation of officer Moses.

On January 14, 1998--the date will become important-Moses testified in a suppression hearing before the Honorable A. Franklin Burgess of the Superior Court of the District of Columbia, the local trial court. The case bore the title United States v. Davon Williams. When the hearing ended after two days of testimony, Judge Burgess suppressed the evidence, finding the defense witnesses more credible than Moses.

As the chief prosecutor in the local and the federal courts, the United States Attorney

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for the District of Columbia maintains a computerized list of police officers who are under investigation--the "Lewis list," after Lewis v. United States, 408 A.2d 303, 306 (D.C. 1979). Moses became the subject of an investigation into the truthfulness of his testimony in the Williams case on February 27, 1998. His name was added to the Lewis list, when exactly is unknown, but the government concedes it was before the start of Bowie's trial on March 10, 1998. The prosecutor explained that when she checked the Lewis list sometime before Bowie's trial, she did not find Moses's name and that she became aware of his listing only when Moses called her three days after Bowie's conviction saying "You may have a problem, you know, I just learned I have been placed on the Lewis list."

At the hearing on Bowie's motion, the prosecutor and the defense attorney treated the issue, not in terms of the prosecutor's disclosure duty under Brady, but in terms of newly-discovered evidence. The district court did the same, denying the new trial motion because "(1) it is unlikely that the newly discovered evidence upon which Mr. Bowie grounds his motion--Officer Moses' testimony in and the surrounding circumstances of the Devon Williams case--would be admissible at a new trial; (2) the new evidence is merely impeaching;(3) the evidence is not of such a nature that in a new trial it would probably produce an acquittal." United States v. Bowie, No. 98-Cr-0008 (D.D.C. Nov. 5, 1998) (order denying motion for a new trial).

II

Now that the case is on appeal, neither the government nor the defense argues about whether the undisclosed information constitutes newly discovered evidence. Both sides acknowledge that Brady and the cases following it provide the governing legal principles. These legal principles are as follows. The Due Process Clause requires a prosecutor to disclose, upon request, information favorable to the accused "that is material to either guilt or to punishment." Brady, 373 U.S. at 87. Evidence affecting the credibility of government witnesses is a category of exculpatory information potentially within Brady's disclosure obligation. See Giglio v. United States, 405 U.S. 150, 154 (1972). If the government failed to disclose exculpatory evidence, a defendant is not entitled to have his conviction overturned unless the evidence was "material." United States v. Bagley, 473 U.S. 667, 67478 (1985); United States v. Agurs, 427 U.S. 97, 112 (1976).Evidence 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.' " Kyles v. Whitley, 514 U.S. 419, 433-34 (1995) (quoting Bagley, 473 U.S. at 682 (opinion of Blackmun, J.)). A "reasonable probability" means the chances are high enough to undermine confidence in the outcome. See Kyles, 514 U.S. at 434;Strickler v. Greene, 119 S. Ct. 1936, 1952 (1999).

It is worth pausing here to examine this standard--"reasonable probability," a standard first suggested by Justice Blackmun in his opinion for himself and Justice O'Connor in Bagley, endorsed by three other Justices in Bagley (see 473 U.S. at 685 (White, J., concurring in part)), explained by Justice Souter in his opinion for the Court in Kyles, reaffirmed last term in Strickler, and criticized by Justice Souter in his separate opinion in Strickler, see 119 S. Ct. at 1956 (Souter, J., concurring in part and dissenting in part). What is a "reasonable probability"? Probability is often expressed in terms of percentages, with 100% representing certainty. We know, because the Supreme Court has told us, that a "reasonable probability" can be less

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than 50.01%. In other words, to reverse a conviction for a Brady violation, it does not have to be more likely than not that the defendant would have been acquitted had the evidence been disclosed. See Kyles, 514 U.S. at 434. We are also sure that a "reasonable probability" is somewhat greater than 1%. How much greater? Enough, the Supreme Court says, to "undermine confidence in the verdict," id. at 435, which may lead us in a circle: one cannot be confident of the outcome when there is a "reasonable" probability that it may be wrong, and a "reasonable" probability is one high enough to undermine confidence in the outcome. Fortunately, we do not need to face the quandary this poses. Our confidence in Bowie's conviction is not shaken by the government's post-trial revelation.

The government's nonfeasance is clear enough. The prosecution had a duty, under Brady, to provide defense counsel with the evidence about Moses before trial and it failed to carry out its duty. This much the government admits. Its defense of Bowie's conviction proceeds on another ground-that the undisclosed evidence would not have been admissible, and hence could not possibly be "material." The government is right about the admissibility of the evidence. Bowie's counsel could not have introduced evidence from the Davon Williams suppression hearing, whether in the form of live witnesses or a transcript. Moses was only under investigation; he had not been convicted of perjury. Rule 608(b) of the Federal Rules of Evidence states: "Specific instances of the conduct of a witness, for the purpose of attacking or...