UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


UNITED STATES

v.

BOWIE, WALTER J.


98-3146a

D.C. Cir. 1999


*	*	*


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 convict- ed felon, he
unlawfully possessed a firearm. See 18 U.S.C.  s 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 Interfer- ing 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 Lon- nie 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 manu- factured 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 govern- ment 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 Honor- able A. Franklin Burgess of
the Superior Court of the Dis- trict 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 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


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 admissi- ble 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


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 acknowl- edge 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 govern- ment
witnesses is a category of exculpatory information po- tentially
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, 674- 78 (1985); United States v.
Agurs, 427 U.S. 97, 112 (1976).  Evidence is "material" only if "
'there is a reasonable proba- bility 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 proba- bility" means the chances are high enough to
undermine  confidence in the outcome. See Kyles, 514 U.S. at 434; 


It is worth pausing here to examine this standard--"rea- sonable
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, reaffirm- ed 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 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
great- er? Enough, the Supreme Court says, to "undermine confi- dence
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 "reason- able" probability is


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 prose- cution 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 investiga- tion; 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  supporting the witness' credibility, other
than conviction of a  crime as provided in rule 609, may not be proven
by extrinsic  evidence." See 28 Charles A. Wright & Victor J. Gold, 
Federal Practice and Procedure s 6117, at 80 (1993).


Admissibility of extrinsic evidence is one thing, cross- examination of
the witness another. Our opinion in United  States v. Cuffie, 80 F.3d
514, 517 (D.C. Cir. 1996), recognizes  as much. Thus, to refute
Bowie's contention that the undis- closed information was "material"
in the Brady sense, it is not  enough to show that the transcript of
the Davon Williams  hearing would be inadmissible. The Brady
information po- tentially would have opened up a line of
cross-examination  going to Moses's credibility. To this, the
government re- sponds that there is no guarantee that such questioning
would  be allowed; a trial judge has considerable discretion under 
Rule 403 of the evidence rules. But certainty is not neces- sary and
we believe that, at a minimum, the judge would have  permitted the
defense to question Moses about his knowledge  of the United States
Attorney's investigation. See United  States v. Abel, 469 U.S. 45, 51
(1984). Even if Moses said he  did not know, the trial judge might
also have allowed ques- tioning about whether Moses feared that an


in the offing, as well he might have in light of the Davon  Williams
proceedings. Even so, the requisite "reasonable  probability" of
Bowie's acquittal scarcely follows. Suppose Moses answered
affirmatively when asked ques- tions probing his knowledge or fear of
an investigation by the  United States Attorney. Would this show the
officer's bias?  Bias can manifest itself in hostility to one side,
but it can also  take the form of favoring a litigant. See United
States v.  Schaffer, 183 F.3d 833, 852 (D.C. Cir. 1999). Bowie's
counsel  thinks he could establish bias, because the jury would
believe  that the officer shaded his testimony in order to curry favor
 with his investigators. That is one possibility, but not the  only
one. The jury might think instead that Moses, knowing  he was under
investigation in another case, would be careful  not to worsen his
predicament, would be punctilious this time  around, would not shade
the truth in the slightest respect. The question remains--how far
could cross-examination go  in destroying Moses's credibility? And if
it were destroyed,  how high is the probability the jury would have
acquitted the  defendant? We think not very, even if the questioning
pro- ceeded like this: Defense counsel: Officer Moses, you testified
in the  Superior Court in the Davon Williams case, did you not?


Officer Moses: Yes.


Defense counsel: That was a suppression hearing in  January of this
year, a proceeding about a search and  seizure you carried out?


Officer Moses: Yes.


Defense counsel: And you swore to tell the truth, the  whole truth, and
nothing but the truth, just as you did  here today?


Officer Moses: Yes.


Defense counsel: Now the Superior Court judge  ruled against the
government in the Williams matter?


Officer Moses: True.


Defense counsel: The judge ruled that way because  he did not believe
you? Prosecutor: Objection. [Out of the presence of the  jury.]
Defendant has not established that Moses was  untruthful in the prior
case. All the judge said on this  score was that he found the defense
witnesses more  credible. This officer does not know what was in the 
judge's mind. The jury in this case is the sole judge of  the
credibility of the witness. What a judge in another,  totally
unrelated proceeding thought about this witness  has no bearing on
this case. Putting that information  before the jury tends to usurp
their fact finding function.  More than that, it will--in the terms of
Rule 403 of the  evidence rules--confuse and mislead them.


Defense counsel: Your honor, this is crucial to our  defense. The judge
must have found that Moses lied,  otherwise he would have denied the
suppression motion.  Moses wasn't convicted of perjury, to be sure,
but the  judge's finding amounts to the same thing.


The Court: Objection sustained. The jury will disre- gard the question.
[See United States v. Lopez, 944 F.2d  33, 38 (1st Cir. 1991) (holding
that "the credibility assess- ment made by the presiding judge at an
unrelated trial  would have entailed a grave risk that the jury might 
abrogate its exclusive responsibility to determine the  credibility of
the testimony given by the officer at appel- lant's trial"); see also
Fed. R. Evid. 608(a) (providing that  opinion evidence attacking the
credibility of a witness  must be limited to character for
untruthfulness).]


Defense counsel: Now after the Williams matter end- ed, you were
worried that the U.S. Attorney might  investigate you for perjuring
yourself in that case?


Officer Moses: No, I wasn't worried at all because I  told the truth
then and I'm telling the truth now.


Defense counsel: Well, the fact is that the United  States Attorney is
now investigating you for perjury?


Officer Moses: That's news to me. [The prosecutor  in this case told
the judge that, in her post-trial conversa- tion with Moses, the
officer indicated that he did not 


know about his name being on the Lewis list until after  Bowie's
conviction.]


Defense counsel: Let me show you defense exhibit 1,  marked for
identification. [A copy of the Lewis list.]  Officer Moses do you know
what the Lewis list is?


Prosecutor: Objection. [Out of the presence of the  jury.] You honor,
the whole purpose of allowing this line  of cross-examination is to
establish that officer Moses  was coloring his testimony for the
prosecution, in order  to gain favor with our office so that we would
drop our  investigation of him or exonerate him. I don't agree  with
the theory, but if he didn't even know of the  investigation, the
defense theory collapses anyway. So  defense counsel should not now be
allowed to get before  the jury the fact that we are conducting an


Defense counsel: Judge, I need to probe the truthful- ness of this
officer's claim that he did not know he was on  the list. He's denied
knowing that. I should not have to  accept that response. The only way
I can test his candor  is to show him the list and get him to
acknowledge that  he's on it. Then the jury can decide for itself
whether  he's telling the truth.


The Court: I'll sustain the objection. Those on the  list are not
normally told they are being investigated. It  would be highly unusual
for an officer to know this. He  said he didn't know. You asked the
question and now  you must accept the answer.


We do not suggest that cross-examination could have pro- ceeded in no
other way, but only that this hypothetical  transcript is quite
plausible. (At oral argument, Bowie's  counsel could offer no other
line of questioning.) When the  undisclosed Brady material consists of
impeachment evi- dence, a court seeking to determine the probable
impact of  the violation must form some idea about how effectively the
 evidence could have been used in cross-examination. Of  course, it is
hard to know what effect such questioning would  have had on the
jury's assessment of Moses's truthfulness  and of Bowie's guilt. In
that respect, this case differs mark-


edly from Cuffie, in which the government failed to disclose  that its
critical witness--a co-defendant who had pled guilty-- had committed
perjury in another proceeding. See 80 F.3d at  517-19. Here, the most
one can say is that Moses was under  investigation for perjury because
another judge found oppos- ing witnesses more credible than him.


If the cross-examination would have led the jury simply to  discredit
Moses's testimony, we still are not convinced that  this would give
rise to any significant probability of acquittal.  In view of the
other evidence against the defendant, the jury  could acquit only if
it took the added step of believing that the  truth must be opposite
of what Moses had told them. See  United States v. Zeigler, 994 F.2d
845, 848-49 (D.C. Cir.  1993). Only then could a thinking jury
entertain a reasonable  doubt of Bowie's guilt. Only then would the
jury have before  it two opposite versions of what transpired, one
from its  disbelief of Moses (the defendant possessed no pistol and he
 did not commit an assault), the other from officer Riggins  (the
defendant possessed the pistol and committed the as- saults). The
point here is not simply that Riggins's testimo- ny, standing alone,
would be sufficient to sustain the convic- tion. It would be, but "the
materiality inquiry is not just a  matter of determining whether,
after discounting the inculpa- tory evidence in light of the
undisclosed evidence, the remain- ing evidence is sufficient to
support the jury's conclusions."  Strickler, 119 S. Ct. at 1952.
Rather, the point is that officer  Riggins--whose credibility was
unimpaired--testified to pre- cisely the same events as Moses and, in
all important re- spects, agreed with him. True, Moses and Riggins
disagreed  on when the gun fell out of Bowie's pants--during the
scuffle,  or after they had handcuffed him--but this is of no
particular  help to the defense. Both officers agreed that Bowie pos-
sessed the pistol and that he assaulted and impeded them,  which made


How likely is it that the cross-examination of Moses would  have been
devastating? Not very, even if the Perry Mason of  our day were
defending Bowie. Federal Rule of Evidence  801 gave the prosecution a
ready means of rehabilitating  Moses on redirect: a witness's prior
consistent statement is 


not hearsay when it is "offered to rebut an express or implied  charge
against the [witness] of recent fabrication or improper  influence or
motive...." The Davon Williams hearing,  which led to Moses winding up
on the Lewis list, concluded on  January 14, 1998. Yet by then Moses
had already testified in  a preliminary hearing in this case, on
December 19, 1997, and  before the grand jury on January 6, 1998. His
testimony on  both of those occasions did not vary in any meaningful
way  from his testimony at Bowie's March 1998 trial. Knowing  this, it
is unlikely--too unlikely--that the jury would have  believed that
Moses slanted his trial testimony because he  knew of, or feared, an
investigation by the U.S. Attorney  regarding his testimony in the
Davon Williams case. And  even if the most effective cross-examination
had convinced  the jury that Moses was not to be trusted, the
unimpeached  testimony of officer Riggins would remain to bolster
Moses  and to convince that, whatever happened in the Superior  Court,
here the jury could believe beyond any reasonable  doubt that Bowie
possessed the pistol and that he attacked  the two officers.


In sum, Bowie has not shown to our satisfaction that if the  evidence
wrongfully withheld had been disclosed, there was a  reasonable
probability the jury would have acquitted him. In  coming to this
conclusion, we have been mindful of our  responsibility to evaluate
the impact of the undisclosed evi- dence not in isolation, but in
light of the rest of the trial  record. See Agurs, 427 U.S. at 112.


Thus far we have confined our discussion to the trial phase  of this
case. Bowie faintly suggests, in a caption in his reply  brief but not
in the body, that we ought to consider as well  whether the
suppression hearing might have come out the  other way. (Moses was the
government's only witness at the  hearing.) This is too little too
late. Too little because it is  hardly clear that the Brady line of
Supreme Court cases  applies to suppression hearings. Suppression
hearings do not  determine a defendant's guilt or punishment, yet
Brady rests  on the idea that due process is violated when the
withheld  evidence is "material either to guilt or to punishment," 373
 U.S. at 87. Too late because Bowie raised the question for 


the first time in his reply brief and then only obliquely. See  Rollins
Environmental Services (NJ) Inc. v. EPA, 937 F.2d  649, 652 n.2 (D.C.
Cir. 1991); Fed. R. App. P. 28(a)(6). We  therefore will not decide
the issue.


III


We mentioned in the opening a problem with the indict- ment. It is
this. The last two counts charged assault on a  police officer while
armed with a deadly weapon and cited  D.C. Code ss 22-505(b) and
22-3202(a)(1). Section 22-505(a)  spells out the offense of assaulting
or impeding a police  officer, which carries a maximum of five years'
imprisonment,  while s 22-505(b) enhances the penalty to a maximum of
ten  years if the defendant "uses a deadly or dangerous weapon"  in
committing the offense. Bowie had a weapon, but even on  the officer's
version of events he did not get around to using  it. The "while
armed" language in the indictment comes from  s 22-3202(a)(1), a
sentencing enhancement provision. A de- fendant who commits certain
offenses while armed will have  his sentence increased. The government
now concedes that  assault on a police officer is not one of the


Where does this leave us? The government tells us that  the citation to
s 22-505(b) was a typographical error, that the  grand jury meant to
refer to s 22-505(a), that Bowie clearly  was guilty of two violations
of this provision, one relating to  officer Moses, the other to
officer Riggins. Furthermore, the  trial judge never instructed the
jury that to convict, it must  find that Bowie used his pistol, an
instruction s 22-505(b)  demanded. But when it came to sentencing, the
judge ap- plied s 22-505(b) and meted out a sentence of 31/2 to 10
years'  imprisonment, a sentence not permissible under s 22-505(a).


Unraveling this tangle yields these consequences. First,  an error in
an indictment's citation "shall not" be a ground for  reversal if the
error "did not mislead the defendant to the  defendant's prejudice."
Fed. R. Crim. P. 7(c)(3). Here, Bowie  suffered no prejudice. His
defense, presented through his  counsel's cross examination of the
prosecution witnesses, lost  no force on account of the miscitation.
And even if the grand 


jury intentionally cited s 22-505(b), even if, that is, this was  no
mere typographical error, the offense laid out in  s 22-505(a) was a
lesser included offense, for which Bowie  was properly convicted.
Assaulting and impeding a police  officer under subsection (a) is
necessarily included within  subsection (b). The wording of s
22-505(b) makes this clear:  "Whoever in the commission of any such
acts [those described  in subsection (a)] uses a deadly or dangerous
weapon shall be  imprisoned not more than 10 years." The federal rule,
like  the District of Columbia rule, is that a "defendant may be 
found guilty of an offense necessarily included in the offense 
charged," Fed. R. Crim. P. 31(c); D.C. Super. Ct. R. Crim. P. 


We are never bound to accept the government's confession  of error.
Young v. United States, 315 U.S. 257, 258 (1941)  (citing Parlton v.
United States, 75 F.2d 772 (D.C. Cir. 1935));  United States v. Pryce,
938 F.2d 1343, 1351-52 (D.C. Cir.  1991) (Randolph, J., concurring).
We do so here for obvious  reasons. Bowie's sentence on the assault
counts will be  vacated and the case remanded for resentencing in
accor- dance with s 22-505(a). In pronouncing a new sentence for 
Bowie's local law offenses, the trial judge will not be bound by 
federal Sentencing Guidelines. United States v. Cutchin, 956  F.2d
1216, 1219 (D.C. Cir. 1992).


III


All that remains is Bowie's challenge to his sentence of 120  months'
imprisonment on the federal charge. This he oppos- es on the basis
that the trial judge erred in granting upward  departures for
"possession of a firearm," see U.S.S.G.  s 2K2.1(b)(5), and "official
victim," see id. s 3A1.2. As he  sees it, the "official victim"
enhancement did not apply be- cause the assault did not "creat[e] a
substantial risk of serious  bodily injury." Id. The trial judge
found, and the evidence  amply supports the finding, that Bowie was
attempting to pull  the pistol from his waistband. His assault
therefore certainly  did involve a risk of serious bodily injury. The
"official  victim" adjustment raised Bowie's offense level to 27


had two prior felony convictions for crimes of violence),  resulting in
a sentencing range of 120 to 150 months. Be- cause the maximum
sentence for felony gun possession is 120  months--the sentence Bowie
received--any challenges to ad- ditional enhancements are of no
moment. Even so, the trial  judge committed no error in making a
"possession of a  firearm" adjustment. Bowie contends that he did not
possess  the gun "in connection" with the assault because he did not 
use the gun during the assault. See id. s 2K2.1. But the  provision
refers not simply to use, but to use and possession  of a firearm in
connection with another felony offense. See  id. Bowie's possession of
the weapon emboldened him, or  appeared to, and his reaching for the
weapon showed his  intent to use it to facilitate his felony assault
on the officers.  See United States v. Sturtevant, 62 F.3d 33, 34-35
(1st Cir.  1995). The connection between the possession of the weapon 
and the assault was thus established.


Affirmed in part and vacated and remanded in part.