SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

CRIMINIAL DIVISION—FELONY BRANCH

UNITED STATES OF AMERICA :

:
v. : Criminal No. 2014 CF3 10951
: Hon. Lynn Leibovitz
BRIAN ANDERSON : Hearing Date: Feb. 2, 2018

MOTION TO DISMIS, OR IN THE ALTERNATIVE FOR

A NEW TRIAL, STEMMING FROM THE GOVERNMENT’S
SUPPRESSION OF BRADY MATERIAL AND RELATED
CONSTITUTIONAL AND DISCOVERY VIOLATIONS

Mr. Brian Anderson respectfully moves this Honorable Court

pursuant to the Fifth and Sixth Amendments, Brady v. Maryland, 373 U.S.
83 (1963), Giglio v. United States, 405 U.S. 150 (1972), Napue v. United
States, 360 U.S. 264 (1959), as well as Superior Court Rule of Criminal
Procedure 33, to vacate the verdict and dismiss due to the magnitude of the
constitutional violation. In the alternative, the defense requests a new trial.
In support of this motion, undersigned counsel states as follows:
INTRODUCTION
The key issue at trial was whether Mr. Anderson fired a gun in the air
in frustration, as the defense argued, or at Officer [Redacted], as [Redacted]
claimed. The government centered its case around Officer [Redacted]—the
first officer on the scene and the complainant—and stressed his years of
experience in the initial lines of both opening and closing argument. The
defense countered by discrediting his version of events in a number of ways,
and argued in closing that [Redacted] invented an AWIKWA to cover up his
unprofessional response to the shooting. What would have put teeth in the

1
defense argument that [Redacted] had lied about being shot at would have
been evidence that he feared repercussions to his career if he told the truth in
this case because of his history of being disciplined for similar derelictions
of duty. The government, however, thwarted any such attempt by shielding
from the defense that exact type of evidence from [Redacted]’s past that
could have been used to impeach his credibility by establishing bias,
corruption, and motive to curry favor.
The government took several steps throughout this case to bury the
exculpatory information. First, it waited until a break in the officer’s
testimony to reveal that he was in the midst of an internal investigation but
insisted he was unaware of it and that it had nothing to do with credibility or
veracity, while refusing to give the defense any source documents. Second,
it was not until six months following trial—after a defense motion to compel
Brady material that specifically requested all sustained findings for Officer
[Redacted]—that the government first mentioned such findings existed.
Even then, the government did not disclose the information directly to
the defense, but waited until this Court asked the supervising prosecutor,
AUSA Jennifer Kerkhoff, a direct question. She responded that he did have
sustained findings against but admitted she was “not certain” of the specifics
and was “going off memory,” because she somehow “didn’t realize that
would be the subject” of the hearing on the defense’s motion to compel
Brady. She promised to “go back and submit that to the Court.” That
occurred on March 4, 2016. Neither this Court nor the defense received any
follow-up or clarification, even though the defense filed a renewed motion to

2
compel and the issue again was discussed with this Court on March 18,
2016.
Third, nearly eighteen months later and just three days before its brief
as Appellee was due in the Court of Appeals in this case, a supervisor in the
USAO’s appellate division alerted the defense that Ms. Kerkhoff had been
“incorrect” and “incomplete” in her disclosures.
Fourth, it took another two months—over two years since trial—for
the documents about [Redacted’s] past to begin to trickle out of the
government’s possession to the defense. These revelations of [Redacted’]
history of misconduct, all in the government’s possession at the time of trial,
included:
• documents revealing that at the time of trial Officer [Redacted]
likely did know about the investigation that was then pending
against him and that the investigation did raise questions about his
veracity and credibility, namely whether an arrest he claimed took
over eight hours to complete could have taken that long and
whether he should have been credited with having worked a
complete eight-hour high visibility overtime shift when in fact he
only showed up for the final hour;

• documents revealing that what AUSA Kerkhoff described as

“sleeping on the job” stemmed from a sustained finding that was
less than a year before the arrest in this case when Officer
[Redacted] could not be located for at least an hour despite
repeated radio requests for him to respond to an armed robbery in
progress; he initially did say to a sergeant he had “dozed off,” but
in his written statement under the penalty of perjury he changed his
story, made no mention of falling asleep, while admitting his “full
attention” had not been on the job;

• documents revealing he was investigated by MPD after drugs were

found in the trunk of an unmarked police cruiser he was connected
to;

3
 • documents revealing MPD sanctioned him at least six times for
failing to appear in court, including one punishment of a three day
suspension without pay;

• documents revealing he received a ten-day suspension without pay

for negligent use of his service weapon;

• documents revealing Officer [Redacted] had provided misleading

answers to the government’s Giglio questionnaire;

• documents revealing that, in total, Officer [Redacted] had at least

eight sustained findings against him at the time of trial and a ninth
as a result of the investigation that had been pending during trial.
Prior to, during, and after trial, the government assured this Court it
had complied with its disclosure obligations and criticized the defense for
attempting a “fishing expedition” when it had filed its post-trial motion to
compel—devoting an entire section of its pleading to that accusation. But
the belated disclosures establish that the government’s representations were
at best incomplete and at worst false, and misled both the defense and this
Court, which relied on the government’s proffers in rendering its ruling on
the defense’s motion to compel.
And yet, despite the government’s obligations pursuant to Brady and
Rule 16, and even with countless opportunities to correct the record, the
government delayed for as long as possible to even begin to provide the
defense with the required information. Moreover, even in making these
disclosures years after trial, it has continued to do nothing but offer excuses
and rationalizations instead of responsibility and accountability. Had the
government disclosed what was in its possession at the time of trial
regarding Officer [Redacted]—who was not only a key police officer in the

4
case but the complainant for the AWIKWA—there is a reasonable
probability the outcome of the case would have been different as the defense
would have been in a position to present the jury with facts to support its
theory he was a biased witness who lacked credibility. The government’s
actions prohibited the defense from confronting [Redacted] with those facts.
See Jenkins v. United States, 617 A.2d 529, 532 (D.C. 1992); In re S.H., 570
A.2d 814, 817-18 (D.C. 1990).
As such, when [Redacted’s] violations were so numerous, the
government’s misrepresentations so frequent, and the USAO possessed the
information but inexcusably did not disclose it for so long, the guarantee of
the right to due process and the promise of a fair trial require that this Court
vacate Mr. Anderson’s convictions and dismiss this case. See Vaughn v.
United States, 93 A.3d 1237, 1267 n.35 (D.C. 2014) (recognizing a trial
court’s “‘supervisory power to dismiss the indictment as a sanction for
government misconduct’”) (quoting Sanders v. United States, 550 A.2d 343,
344-46 (D.C. 1988)).
FACTS AND PROCEDURAL BACKGROUND
I. The Evidence at Trial
In the early morning hours of June 20, 2014, Dania McCullough burst
through the front door of Valarie Lyles’s apartment in the 2100 block of H
Street, NE. (Tr. 9/10/15 at 69, 71). In addition to Valarie, inside the
apartment at the time was her daughter Erica, and Erica’s friends Jessica
Bundy, Janiya Bundy, Tymika Smith, and Roneka Warren. (Id. at 66-69).
These women did not know Ms. McCullough and tried to push her out of the
apartment while, at the same time, Mr. Anderson had come up from behind

5
to try to get her to leave. (Id. at 69-71). Mr. Anderson apologized to
everyone for Ms. McCullough’s loud behavior and said to her, “[S]ee what
you got us into.” (Id.).
Ms. Lyles and her friends, however, would not allow Ms. McCullough
to simply leave, but tried to push her down the stairs. (Id. at 71-72, 118-19).
Once down the stairs, the women began beating Ms. McCullough badly.1
Eventually, Mr. Anderson placed Ms. McCullough into their car. He drove
onto the curb and through the breezeway.2 (Id. at120). The car hit Jessica
Bundy’s foot as it continued into a courtyard area, traveling down several
steps, which caused the front bumper to fall off. (Id. at 79, 122). The car
made a u-turn and drove back through the breezeway. Ms. Smith and Ms.
Warren tried to hide behind a large mailbox, but the car hit the mailbox
causing it to fall backwards onto Ms. Smith. (Id. at 122-23). The car then
drove away. (Id. at 123).
Officer [Redacted] arrived at the scene and saw a number of “[p]retty
agitated” people standing outside. (Tr. 9/9/15 at 21, 31, 100). A few minutes
later, a car without a front bumper circled the block before backing into a
driveway across the street, 100-feet away from where [Redacted] was
standing underneath the breezeway talking to people. (Id. at 44, 63).
According to Officer [Redacted], he began to approach the car with his pen
and notebook in hand because he thought it was only a traffic investigation.

1
Janiya Bundy hit Ms. McCullough with such force that she hurt her hand, and her
friends were stomping on Ms. McCullough to the point that Valarie Lyles attempted to stop
them out of fear they would all go to jail for “murder or attempted murder.” (Tr. 9/9/15 at
159; Tr. 9/10/15 at 85).
2
The breezeway, see App. 105, was a tunnel that ran through the middle of the apartment
building at 2201 H Street, NE, where the incident occurred. (Tr. 9/9/15 at 25-26). It was
uncontested at trial that a person underneath the breezeway would not have been able to see
Mr. Anderson at the time shots were fired. (Tr. 9/16/15 at 62-63, 76, 88-89, 100-01).

6
(Id. at 45-46). [Redacted] testified that he was by himself in the middle of
the street, about seventy-feet away from the car. (Id. at 47, 77). He saw the
driver—later identified as Mr. Anderson—get out of the car and stand in
front of it. (Id. at 47). [Redacted] claimed he saw Mr. Anderson’s right arm
come up, holding a gun (Id. at 47). He demonstrated for the jury, mimicking
what he claimed was Mr. Anderson “pointing directly in front of him” and
then “pull[ing] the trigger, shooting.” (Id. at 48). After he saw the muzzle
flash, [Redacted] said he hit the ground to gain cover between two cars, and
crawled on his stomach for thirty-feet until he was back under the
breezeway. (Id. at 59, 84-87). He then ran into the courtyard and watched as
Mr. Anderson’s car drove the wrong way on H Street and left the area. (Id.
84-87).
Beginning as soon as he hit the ground after the first shot until he saw
the car drive away, Officer [Redacted] made a radio transmission and kept
his radio “keyed,” or turned on and transmitting. (Tr. 9/9/15 at 82-83). The
initial transmission lasted about eight seconds and recorded the sounds of
gunshots in the background, with [Redacted] saying “[s]hots fired,” and then
describing the path of the vehicle. (Id. at 82, 86-87).3
In a number of ways, the defense impeached [Redacted]’s testimony
that he saw Mr. Anderson point the gun in his direction. First, despite the
shooting being in an area where there were numerous people, cars, a fire

3
The entire initial transmission reads: “Officer [Redacted]: Shots Fired. Black male.
(Gunshots heard and screaming). Get down. Get down. Shots fired, we’re in the 2200 block
of H like Henry Street. He’s going back down the opposite way, last seen going down
towards 24th Street. Need a unit that’s going to block him going down the opposite way.”
(Govt. Ex. 704).

7
truck, and apartments, there was no evidence of anyone or anything being
struck by a bullet. (Id. at 94).4
Second, the length of [Redacted]’s initial radio transmission—about
eight seconds—suggested he could not have been standing in the middle of
the street facing Mr. Anderson when the first shot was fired, but was likely
still underneath or just outside the breezeway. (Id. at 86-87). [Redacted]
activated his radio as soon as he hit the ground after the first shot was fired
and kept it on until he was through the breezeway and standing near the
courtyard. (Id.). By the end of the initial transmission, [Redacted] was
already through the breezeway and in the courtyard. The defense contended
that eight seconds was too short a time span for [Redacted] to have crawled
on his stomach from the middle of the street to the breezeway, about thirty
feet, continued through the breezeway, and then watched as the car drove
away all the while providing the transmission over the radio. (Tr. 9/16/15 at
88-89). Rather, the short time frame suggested [Redacted] was much closer
to the breezeway, if not entirely underneath it, where he would not have
been able to see Mr. Anderson fire the first shot and Mr. Anderson would
not have been able to see him to target him. (Id.).

4
Crime scene technicians recovered seven shell casings from the area where Mr.
Anderson was standing when the shots were fired. (Tr. 9/9/15 at 121-22; 9/10/15 at 36-37).
Two bullet fragments of unknown origin were recovered near one of the cars Officer
[Redacted] claimed to have ducked behind when the shooting started, (Tr. 9/10/15 at 36-37),
but there was no evidence of anything having been hit in that area. Additionally, [Redacted]
only identified being near the car when he was brought back to the scene by the lead
detective and would have known where the bullet was recovered and where to say he was
located to buttress his account of being shot at. (Tr. 9/15/15 at 161-62). The firearms
examiner testified that the seven casings were fired from the gun police recovered from Mr.
Anderson’s car, but he could not reach a conclusion as to the source of the bullet fragments.
(Tr. 9/15/15 at 70-71).

8
 Third, inconsistently with his trial testimony, [Redacted] initially told
Detective Yvette Maupin that he did not “see where the gun was actually
pointed because [he] [was] already taking cover when the shots went off[.]”
(Tr. 9/9/15 at 97-98).5 Fourth, Detective Maupin’s own testimony at a
preliminary hearing a little over a month after the incident, which she
acknowledged during trial, supported the defense’s argument that [Redacted]
never actually saw the gun fired. She admitted that she had answered the
question asking, “When [[Redacted]] heard the shot, did he see . . . where
[the gun] was pointed” by responding, “No, sir,” and had testified that to the
“best of her recollection” [Redacted] told her that he “[d]ove prior to hearing
the shot.” (Tr. 9/15/15 at 166-67).
Fifth, despite saying at trial that he was being fired at, [Redacted]
never drew his weapon in that time. (Id. at 60). And sixth, though at trial
[Redacted] correctly described the gun as silver, he said the gun was black in
his statement to Detective Maupin, (Tr. 9/15/15 at 165), and testified at a
preliminary hearing that he could not describe the gun because “[a]ll [he]
saw was the muzzle flash.” (Tr. 9/9/15 at 96).
Importantly, two witnesses’ testimony placed [Redacted] where the
defense argued he was standing—under or right next to the breezeway—
when the first shot was fired. Valarie Lyles testified she was right by the
breezeway when the first shot was fired and that [Redacted] was standing
directly next to her. (Id. at 121-22). Firefighter Christopher Simpson, a
defense witness, testified he was underneath the breezeway with three

5
At trial, [Redacted] did not deny making that statement to Det. Maupin but attempted to
explain that what he meant was he did not see where the gun was pointing after the first shot.
(Tr. 9/9/15 at 98).

9
women that he was treating when he heard gunshots, and that Officer
[Redacted] was standing directly to his left. (Tr. 9/15/15 at 112-13). Because
he was underneath the breezeway, Simpson could not see the person
shooting. (Id. at 112). Immediately upon hearing the gunshots Simpson saw
Officer [Redacted] drop to the ground, crawl through the breezeway, and
then walk into the courtyard. (Id. 15 at 115-17).
Simpson also testified that he was so shocked by [Redacted]’s
reaction to the shooting—that [Redacted] crawled away from both the
shooter and the other civilians in the area—that he yelled at [Redacted] for
not acting as Simpson expected a police officer would. (Id. at 116-17).
[Redacted] did not respond to him, and Simpson testified that no one from
MPD ever attempted to speak with him to learn what he observed that night.
(Id. at 117).6
Although the government tried to corroborate [Redacted]’s account
with testimony from Valarie Lyles, Jessica and Janiya Bundy, and Tymika
Smith, these were the same women who were aggrieved by Mr. Anderson
and his companion for coming into their apartment, and who severely beat
Dania McCullough. (Tr. 9/9/15 at 159; Tr. 9/10/15 at 85). The four friends
provided suspiciously similar testimony, including Jessica Bundy and Smith
identically testifying to hearing [Redacted] speak with Anderson before any

6
In closing (see App. 106-135), the defense argued that [Redacted] invented an
AWIKWA to cover up his unprofessional and improper response to the shooting and give
himself an excuse for having not been paying attention and then going in the opposite
direction instead of acting to protect the people in the area: “Maybe he’s a little embarrassed
[that he ran in the opposite direction]. . . . [M]aybe firefighter Simpson yelling at him caused
him a little concern about what was going to be looked into later, or maybe it’s just pride and
he wants to believe he was where [he said] he was.” (App. 128). Defense counsel went on to
argue that “the evidence we have talked about already shows you that he was at the edge of
[the breezeway], all the reliable evidence is that he is at the edge of [the breezeway].”

10
shots were fired—a fact [Redacted] strongly denied. (Tr. 9/9/15 at 36; Tr.
9/10/15 at 124-25).7 In fact, the group of friends admitted that they had
discussed their testimony beforehand. (Tr. 9/10/15 at 217).
While at trial they claimed that they saw Anderson stand in front of
his car and shoot in the direction of Officer [Redacted], their earlier
statements to both police and defense investigators told a very different
story. On the night of the incident, Smith told police that when the shots
were fired, she was underneath the breezeway and therefore could not see
the shooter. (Id. at 147).8 Both Smith and Lyles similarly told a defense
investigator soon after the incident that they did not see the shots being fired.
Lyles said she was on the ground and Smith said she was against the wall in
the breezeway. (Tr. 9/9/15 at 140; Tr. 9/10/15 at 145).9 Further, at trial,
Janiya Bundy admitted that she was standing in the breezeway during the
shooting, a place from which she could not see the shooter. (Tr. 9/10/15 at
100, 104). And Firefighter Simpson testified that he was underneath the
breezeway treating three women when the shooting started—these three
likely were Jessica and Janiya Bundy, and Tymika Smith because they were
the only three who then received treatment at MedStar Washington Hospital
Center. (Tr. 9/15/15 at 155-56, 159, 175; Tr. 9/16/15 at 44).10
7
Additionally, Tymika Smith testified to seeing Mr. Anderson “walking up” towards
[Redacted], though she also said she could not see his car, when the shooting began, (Tr.
9/10/15 at 124-25), contradicting Officer [Redacted] who said Mr. Anderson stood directly in
front of his car, and was not moving, when the shooting started. (Tr. 9/9/15 at 94).
8
Detective Sean Crowley testified to speaking with Smith at the hospital the night of the
incident and she told him she was in the tunnel (the breezeway) when she heard the shots.
(Tr. 9/15/15 at 159).
9
Following a May, 2015, arrest for shoplifting, Ms. Smith entered an agreement where
the charges would be dropped but that she could go to jail if the prosecutor or judge
determined she did not fulfill all of her obligations. (Tr. 9/10/15 at 154-56).
10
Having been deliberating since September 16, 2015, on September 18, 2015, the jury
returned its verdict finding Mr. Anderson not guilty of one count of ADW and guilty of six

11
II. The Brady Litigation
A. Pre-Trial disclosures.
Prior to trial, the government provided no Brady information related
to Officer [Redacted]’s on-the-job misconduct.
B. Mid-trial, mid-[Redacted] testimony, disclosure.
Jury selection occurred on September 8, 2015, with initial instructions
and opening statements the next day. The government’s first witness was
Officer [Redacted]. Following a break in his direct testimony, this Court
asked the parties if there was anything to discuss before proceeding. The
prosecutor responded, “There’s just a potential Lewis issue . . . with regard
to Officer [[Redacted]].” (Tr. 9/9/15 at 39). This Court admonished that the
prosecution should have made timely disclosures directly to the defense and
not through the court: “If there are things you should be disclosing, you
should disclose them. You don’t wait and tell me after the trial has started.
They’re the ones who need the disclosure, not me.” (Id. at 39-40).
The prosecutor stated that the MPD investigation into [Redacted] had
to do with his processing of an arrest, but that the defense should not be
allowed to cross-examine about it because [Redacted] was unaware of the
investigation and it did not involve veracity, claims the government would
repeat many times to this Court. (Id. at 39-40, 68-69, 70, 91).11 Following
[Redacted]’s direct examination, defense counsel told this Court that he still

counts of ADW, one count of AWIKWA, six counts of PFCV, and one count each of APO
while armed and UF. Four of the ADW convictions were the result of the jury finding Mr.
Anderson not guilty on four of the five AWIKWA charges but convicting him of the lesser
included ADW for each. The one AWIKWA conviction was against Officer [Redacted]. The
other two ADW convictions resulted from when the car hit Jessica Lyles and then when it hit
the mailbox that fell onto Ms. Smith.
11
The government also said it had additional Lewis information to disclose. This Court
instructed, “You need to turn over everything.” (Tr. 9/9/15 at 40-42).

12
did not understand the nature of the pending investigation into Officer
[Redacted], and the prosecutor then showed this Court an email from his
supervisor that purported to summarize the investigation. (Id. at 41, 67-70).12
Two days later, the prosecutor read to the defense—but refused to
give to the defense—an “internal [MPD] incident summary sheet [of the
investigation].” (Tr. 9/11/15 at 13).13 Having been told the government had
read verbatim the summary to the defense, the defense added, “I’d only state
that if there’s anything different in the documents underlying the summary,
then we’d be requesting that material as well.” (Id. at 15). The prosecutor
said he did not have those materials, but this Court reminded the government
of the extent of its Brady and disclosure obligations: “Yes. But you have just
heard the request. . . . So just because you don’t have it personally in your
hands, you know, that’s not an answer. . . . [Y]ou’ve provided an
understanding [of the investigation]. And if there’s anything else” that
should be disclosed then disclose it. (Id. at 15-16). This Court went on: “I’m
just saying, understand your obligations, and your obligations don’t end with
what you personally have in your hands. . . . You at least need to take
responsibility for knowing what there is well enough to make the disclosures
you have to make. . . . [T]hat’s what Vaughn says.” (Id. at 16-17).
The government made no further disclosures during trial.
12
It stated that following an arrest on August 14, 2015, the officer failed to “identify all
victims, witnesses and suspects to determine in detail the exact circumstances of the event.”
(Id. at 70). The defense complained that it did not know enough to decide whether to cross-
examine about the pending complaint and needed to see the documentation of the
investigation. (Tr. 9/9/15 at 71). Based on the representations from the government, this
Court disagreed. (Id.).
13
The summary indicated that on August 14, 2015, Officer [Redacted] and another
officer responded to a shooting and placed two people under arrest. [Redacted] failed
properly and timely to identify the victims, witnesses, and suspects to determine the
circumstances of the incident, in violation of MPD General Order 401.01 I V.A. (f). (R.45).

13
 C. Six months after the verdict the government admits that
“yes” “Officer [Redacted] [did] have . . . sustained findings”
against him but provides limited information.
Following trial, but before sentencing, the defense filed a Motion to
Compel Disclosure of Material Discoverable under Brady v. Maryland (App.
17). In that motion, the defense sought information about the government’s
“steps . . . to comply with the defense’s Brady requests . . . related to Officer
[Redacted],” including whether there were any open internal administrative
investigations pending against him or any information about past complaints
or sustained findings against [Redacted]. (App. 17).14
The government filed an opposition but made no disclosures. (App.
35). Instead, “[a]s officers of the Court, the Government assert[ed] that it
complied with its duties to discover and disclose the above categories of
information as it relates to Officer [Redacted] (and every other
witness/officer that testified for the government at trial.).” (App. 54). The
government agreed “that a testifying police officer’s status as the subject of
a pending investigation—even a purely administrative one—may be
admissible of bias if the officer is aware of the investigation,” (App. 46), but
continued to insist that Officer [Redacted] had no knowledge of it at the time
he testified. (App. 11, 12). The government wrote that the supervisor on the
case, “Assistant United States Attorney Jennifer A. Kerkhoff obtained the
MPD documents related to the now-closed administrative investigation” and

14
Additionally, the defense asked for: 1) the date, time, and circumstances of how the
government learned of the investigation it mentioned in the midst of trial; 2) all documents
related to the investigation; 3) all information related to whether Office [Redacted] was
aware of the investigation; 4) all related source documents; 5) all information regarding any
complaints sustained against Officer [Redacted]; and 6) all Giglio forms Officer [Redacted]
completed during the pendency of this case. (App. 24-26).

14
as an “officer of the Court,” she “represents that Officer [Redacted] was not
told he was the target of the administrative investigation until September 16,
2015, one week after Officer [Redacted] testified at this trial.” (Id. at 11).
Three times in its response the government noted that the
investigation was “now-closed,” but never once mentioned that it resulted in
a sustained finding. (App. 45, 57 n.6). And rather than actually disclose the
documents from the investigation or any other information in response to the
defense’s requests, the government accused the defense of conducting an
inappropriate, untimely “fishing expedition.” (App. 35, 43, 53, 55).
Though the defense requested all sustained findings, and the
government’s disclosure obligations pursuant to Brady extend beyond trial
and exist even without a defense request,15 had it not been for this Court
directly asking Ms. Kerkhoff if there were sustained findings it is likely
nothing ever would have come to light. At that hearing, this Court asked Ms.
Kerkhoff, “Did Officer [Redacted] have any sustained complaints at the time
of any kind? Any disciplinary matters, either minor or major, . . . at the time
that he testified . . . of any sort?” (Tr. 3/4/16 at 11). Ms. Kerkhoff answered,
“Yes.” (Id.). She said:

He, several years prior—and I’m going off of memory—I didn’t

realize that would be the subject of this—he had not timely responded
to a radio run because he had fallen asleep. . . . And I believe there
were some court no-shows, but I’m not certain about that or not
appearing for a physical. I’d have to go back and submit that to the
Court.

(Id. at 12).

15
See, e.g., United States v. Agurs, 427 U.S. 97, 107 (1976).

15
 When asked if she had reviewed [Redacted]’s file, she answered, “At
the time of trial I reviewed—I didn’t review the entirety of his personnel
file. I reviewed all of the information contained in the PPMS to determine
what kinds of allegations have been made and what kinds of findings had
been made to determine if there was anything that touched upon or reflected
upon truthfulness or veracity. That was done.” (Id. at 12-13). Ms. Kerkhoff
“did a line by line of every entry in PPMS,” and concluded there was not
information that needed to be disclosed. (Id. at 18). She added that the
government “maintains” and “asserts” that it “complied with our obligations
at the time of trial; and we’ve continue[d] to comply with them.” (Id. at 19).
As for the investigation that had been pending during trial, Ms.
Kerkhoff said that too resulted in a sustained finding against Officer
[Redacted] for failing to properly complete his vehicle log form (a PD 775),
but that her review of the file indicated it did not touch upon the officer’s
veracity. (Id. at 6-8). This Court said to Ms. Kerkhoff, “Officer [Redacted]
was not aware [of the investigation] at the time; that he was made aware of it
after trial, for whatever reason; that, at a point after trial that particular
allegation was sustained,” and Ms. Kerkhoff answered, “correct.” (Id. at 19).
She said he was first told he was a “target” or “subject” of the investigation
on the day the jury began its deliberations in this case.
Defense counsel requested further information about the newly
mentioned sustained findings, (id. at 22-24, 27-31), and explained that
[Redacted]’s suppressed history of sustained findings would have been a
powerful source of bias. Counsel emphasized that the defense at trial was
that [Redacted] “literally fell down on the job and was making up a story

16
about being shot at” because admitting to his poor performance would be
detrimental to his career. (Id. at 28). Having been disciplined for prior
incidents of similar misconduct, [Redacted] had ample “motivation to make
a false report about what happened on the date of the incident” and to
continue to “testify falsely in this case” to avoid further and more serious
discipline for his actions in this case. (Id. at 32).
Relying on what the supervising AUSA had just provided, this Court
concluded the government had conducted a “thorough review of the file”
and, as such, there was no other information or materials that the defense
could have used that would have “supplemented in any meaningful way
under Brady” what it learned during trial about the investigation into
[Redacted]. (Id. at 12, 35). “The investigative file, according to Ms.
Kerkhoff, contains no allegations of falsehood; of corruption; of an effort to
corrupt proceedings” and this Court “conclude[d] that, in the circumstances
of this case, Ms. Kerkhoff’s thorough review of the file and her report here
as to what’s in it are things that I accept from her as an officer of the Court.”
(Id. at 34-35).16 In short, the Court adopted the government’s representations
that it had “turned over all Brady.” (Id. at 36).
Following the hearing, the defense filed a renewed motion to compel,
(app. 94), which detailed how the suppressed incidents of sustained findings
would have supported the defense trial theory of [Redacted]’s bias and
motivation to lie or exaggerate to protect his job and reputation.
Accordingly, the information the government suppressed about the history

16
Similarly, based on the representations from the government, this Court ruled that there
was no need for it to conduct a separate in camera review. (Id. at 35).

17
of sustained findings against [Redacted] “would have proved critical” in
“exposing his bias/motive to lie.” (Id.).
The government offered no response either in writing or orally, and
provided no additional information to the defense or to this Court.
On March 18, 2016, this Court cited the government’s prior proffers
to reach the conclusion the government had met its disclosure obligations
and that there was no other information that needed to be given to the
defense: “[D]espite the fact that the government proffered with a great deal
of specificity the last time [about] the nature of the information in the PPMS
system and that it had . . . further researched,” the defense had not otherwise
offered anything “specific other than a complaint years ago about a failure to
go to a physical, sleeping in an automobile and court no-shows [that] would
effectively suggest that this was an officer who sleeps on the job.” (Tr.
3/18/16 at 3-4). This Court ruled that any defense request in light of the
“detailed” disclosure by the government was “speculative” with no
indication how further information “would disclose bias and so I don’t
believe that there’s any further disclosure that can be made beyond what’s
been made that, at this point, would serve any purpose.” (Id. at 4-5).

D. Eighteen months later the government admits its proffers to

this Court were “incomplete” and “incorrect.”
On August 18, 2017—three days before its brief as Appellee was due
following two requests for extensions—the government informed the chief
of the appellate division at PDS, Samia Fam, that the prosecutor had been
incomplete and inaccurate in her responses to this Court’s question asking

18
about [Redacted]’s sustained findings.17 In response to a request to provide
particulars about the additional incidents, government counsel sent Ms. Fam
an email, (App. 136), that same day indicating that, in addition to the
sustained findings for not responding to a radio run because he had fallen
asleep and not appearing in court as required that were mentioned below:

(1) Officer [Redacted] may have been (but it was unclear to

government counsel) the subject of an Office of People’s Complaints
(OPC) matter that was pending during the life of the case, in which a
citizen complained about police conduct; (2) Officer [Redacted] had a
sustained orders/directives violation in 2009 for being late to
papering; (3) Officer [Redacted] appears to have had (although
government counsel was not certain) a sustained finding in 2005 for
mishandling property; (4) The government’s mention at the 3/4/16
hearing of a sustained finding for failure to appear for a physical
examination appears to be a mis-recollection; and (5) It appears that a
Letter of Prejudice regarding potential penalties was issued regarding
the sustained sleeping incident that was discussed at the 3/4/16
hearing.18

As a result, the government filed in the Court of Appeals, “Appellee’s

Suggestion of Remand,” seeking to remand the case back to this Court in
light of its discovery that the prosecutor’s disclosures had been “incorrect”
and “incomplete.” (App. 137). The government claimed that the prosecutor’s
incomplete and incorrect disclosure in March 2016 was due to the “limited
information from MPD’s Personnel Performance Management Systems

17
In Mr. Anderson’s brief, filed in the Court of Appeals on May 22, 2017, it was argued
that the government violated Brady by suppressing evidence that Officer [Redacted] had a
history of sustained MPD findings indicating a dereliction of duty in a case where the defense
was that the officer was motivated to fabricate testimony to cover up his dereliction of duty.
Of course, the arguments in the brief were restricted to the extent of the information the
government chose to disclose during the March 4, 2016 hearing.
18
In the email, (app. 136), the government noted that these disclosures “may require
further clarification.”

19
(“PPMS”),” which the government stated prosecutors use “to identify
information that should be disclosed to the defense.” (Id. at 146). The
government asserted that the system has since been updated, and that it was
after this “update” that the prosecutor’s inadequate disclosure came to light.
(Id. at 149).19 Over defense objection, (app. 155-174), the Court of Appeals
remanded to this Court on September 15, 2017.

E. Over two years after trial, the government begins to disclose

evidence of Officer [Redacted]’s bias, motive to curry favor,
and corruption that it possessed all along.
As the defense prepared for trial, it had no knowledge of any possible
Brady or Giglio material related to Officer [Redacted]’s on-the-job
misconduct. The same was true as trial began. And even during trial, based
on the government’s proffers to this Court, the defense believed there
existed only a pending investigation that did not touch upon credibility that
the officer did not even know about. Nevertheless, it took until October,
2017 for the government to begin to provide the documents relating to the

19
The government’s lackluster mechanism for identifying Brady is not an excuse for why
the defense went to trial without this information, as the Court of Appeals and the Supreme
Court require the government to have “systems in place to ensure that it was [accurately]
alerted . . . about [Brady] information.” See Vaughn v. United States, 93 A.3d 1237, 1258
(D.C. 2014) (“[T]he government should have had the systems in place to ensure that it was
alerted immediately about [Brady] information.”); see also Kyles v. Whitley, 514 U.S. 419,
438 (1995) (a failure to learn about discoverable Brady material is no excuse as it only
establishes that the prosecutor failed to implement “procedures and regulations . . . to carry
[its] burden” to disclose Brady information). Further, taking the government at its word, its
representations in its motion call into question all Brady disclosures made in every criminal
case before this PPMS system update. The defense has asked the government to disclose
when the update went into effect; as of the time of filing of this motion the government has
refused to provide such information.

20
most critical witness—the first responding officer and the “complainant”20—
that should have been disclosed without strategic delay prior to trial.

1) Officer [Redacted] did know about the pending

investigation and it did raise questions about his
credibility and veracity.
Despite its proffers stating otherwise, at the time of trial the
government had in its possession documents that showed the officer was
aware of the investigation into an arrest he made about a month before trial,
and documents that showed the investigation raised questions—especially
from the defense perspective—of the officer’s candor and credibility. As
will be set out below, on August 14, 2015, [Redacted], after working the day
shift until 1500, was scheduled to work the High Visibility Overtime (HVO)
shift from 1500-2300, but did not report for that shift until 2200. Earlier in
the day, around 1200, he had responded to a report of a shooting and
participated in an arrest, where officers requested arrest numbers at 1300 for
an adult and a juvenile. Office [Redacted] processed the juvenile, and
according to his statement (given three weeks prior to trial) he finished
processing the juvenile at the Juvenile Processing Center and then went to
the Fifth District to start the HVO shift. However, his paperwork showed he
left JPC no later than 1530, calling into question where he could have been
from 1530 until 2200 and whether he had deceptively sought credit for the
entire eight hours of the HVO shift while only showing up for the last hour
and had not otherwise been working in that time span. And though the final
punishment would be a letter of prejudice, which the government did tell this

20
At trial, Detective Maupin identified Officer [Redacted] as the only “complainant” that
she had spoken to as part of her investigation. (Tr. 9/15/15 at 162).

21
Court on March 4, 2016, the Internal Affairs Bureau investigation that relied
primarily on information known prior to trial initially suggested that
[Redacted] receive a suspension of up to four days, which the government
never told this Court.21
First, documents showed that at the time of trial the defense would
have had a “well-reasoned suspicion”22 to believe Officer [Redacted] knew
that he was the subject of an investigation, even if he had not specifically
been told yet he was the target. MPD investigated the processing of an arrest
that had occurred on August 14, 2015. Officer [Redacted] was one of two
arresting offices. And on August 19, 2015—more than three weeks before
trial and just five days after the arrest—Officer [Redacted] was asked to
provide a statement in a PD 119.23 In that form, under the box labeled,
“Nature of Investigation,” it read, “Processing Arrest on 800 block of
Bladensburg Rd NE.” In his statement, provided under the penalty of
perjury, Officer [Redacted] stated that:

On 08-19-15 1320 hrs Administrative Sargeant (sic) Jones inquired

about an arrest which occurred in the 800 block of Bladensburg Road,
NE. . . . I Ofc. Steven R. [Redacted] responded to the scene of 800

21
Admittedly, IAB’s conclusion did not occur until after trial, as is also true for some of
the information related to Officer [Redacted]. But had the government not provided limited,
vague, and misleading information when the incident was discussed at length on March 4,
2016, it is likely both the defense and this Court would have been in a better situation to
understand the extent of the allegations. Instead, relying only on what the USAO decided to
proffer, the impression was that the investigation was a relatively minor paperwork mistake.
Certainly nothing the government ever said to this Court during or after trial would have
placed anyone on notice that Officer [Redacted] had been on the verge of a multiple-day
suspension.
22
See McCloud v. United States, 781 A.2d 744, 753 (D.C. 2001); see also Cunningham v.
United States, 974 A.2d 240, 246 (D.C. 2009) (discussing the likelihood that an officer did
know he was the subject of an investigation even if the government did not think he had been
specifically informed of “his true status as the subject”).
23
This document existed and was in the government’s possession at the time of trial.

22
 Bladensburg Rd NE to assist with the stop of the vehicle that was
involved in the case. I Ofc. Steven R. [Redacted] proceeded to arrest
the juvenile involved with the case. I transported the juvenile to
juvenile processing center and processed the juvenile lock up. I
advised Sargeant (sic) Harvey that I was working High Visibility
Overtime and that he can advise the overtime officer that I was
working at JPC handling the juvenile. Once I was done with
processing, I responded back to the Fifth District.
And second, besides there being documents showing [Redacted] was
aware of the investigation, there also were documents and information
available at the time of trial establishing the investigation did raise questions
about Officer [Redacted]’s veracity, credibility, and corruption.24 Namely,
what had [Redacted] been doing for over six hours before finally showing up
at the Fifth District at 2200 for an HVO shift that had started at 1500 and did
he purposefully avoid the bulk of the HVO shift but still seek (and receive)
full credit for the eight hours.25

24
The documents in existence at the time of trial included: arrest reports submitted by
both officers; statements made by both officers in PD 119s about their actions in processing
the arrests; a statement by the lead detective for the August 14, 2015 arrests (given on
9/1/15); a statement given by the sergeant who was the “day work check-off official” who
Officer [Redacted] had communicated with at 1500 to tell him he was in the middle of
processing an arrest (given on 9/1/15); time sheets submitted by both arresting officers;
Officer [Redacted]’s vehicle log that supposedly documented his whereabouts during his
shift on August 14, 2015; radio calls from August 14, 2015 which among other things
established what time arrest numbers were requested.
25
In reviewing the material available to the government at the time of trial, the question
is not if there is an explanation Officer [Redacted] could have had to explain the apparent
large gap in his whereabouts, but whether it would have been favorable and material when
looking at the information from the defense perspective. See Zanders v. United States, 999
A.2d 149, 163-64 (D.C. 2010 (“[I]t should by now be clear that in making a judgment about
whether to disclose potentially exculpatory information, the guiding principle must be that
the critical task of evaluating the usefulness and exculpatory value of the information is a
matter primarily for defense counsel, who has a different perspective and interest from that of
the police or prosecutor. . . . It is not for the prosecutor to decide not to disclose information
that is on its face exculpatory based on an assessment of how that evidence might be
explained away or discredited at trial, or ultimately rejected by the fact finder.”) (emphasis
added).

23
 The investigation stemmed from an August 14, 2015 arrest. That day,
around 1200, Officer [Redacted] and another officer responded to the scene
where a person had been shot with a pellet or a BB gun and shortly after
officers conducted a traffic stop of possible suspects that led to the arrest of
the adult and the juvenile following a showup. Based on what was learned
from the complainant, what was observed inside of the car after the traffic
stop, and statements on the scene, arrest numbers (CCN) were requested for
an adult and a juvenile at 1300.
Officer [Redacted] processed the juvenile. Per an arrest report that
Officer [Redacted] completed,26 as well as his initial August 19, 2015
statement, Officer [Redacted] processed the juvenile at the Juvenile
Processing Center (JPC) and then reported back to the Fifth District to begin
his high visibility overtime shift. The arrest report [Redacted] completed
indicated that the arrest occurred at “15:20.”27 In his statement on August 19,
2015, Officer [Redacted] did not provide the times for his actions.

26
Officer [Redacted] in his arrest report for the juvenile provided the following facts
about the incident that led to the arrest: “On 08/14/2015 . . . received a radio transmission to a
shooting victim in the 1900 block of I St NE. Once on the scene [another officer] interviewed
the complainant that stated that he was at the Checkers restaurant drive thru and was shot
with a BB gun or pellet gun. . . . The complainant then began to follow a burgundy in color
Chevy Suburban bearing DC tags of []. [Other police officers then conduct a traffic stop of
the Chevy Suburban in the 800 block of Bladensburg Rd NE.] One occupant exited the listed
vehicle and was last seen fleeing on foot . . . Three occupants were stopped and detained on
the scene. I, the undersigned responded to the 800 block of Bladensburg Rd NE and waited
for a 1D Detective to arrive on the scene. All passengers were taken out of the vehicle and
placed on the sidewalk. In plain view were yellow Pellets (BB) in the rear passenger seat and
on the floor of the vehicle. . . . Detective J. Eggleston was on the scene and conducted
preliminary investigation and revealed that Responded was in possession of a Pellet (BB) gun
when it accidentally expelled a projective from the Pellet (BB) gun while he was attempting
to reload it with additional pellets, thereby striking the complainant. Respondent was
transported to JPC and processed for Possession of a Prohibited Weapon (B) BB gun.”
27
On September 1, 2015, Detective Juanita Eggleston gave a statement, where, though
she noted that this “case was time consuming,” she stated that the adult and the juvenile were
placed under arrest at the scene before being transported. Thus even if there was paperwork

24
 But he also completed a vehicle log that documented where his police
vehicle was at different times during his shift. In that vehicle log, which was
also in the government’s possession weeks in advance of trial, Officer
[Redacted] wrote that he was at 19th and I Street NE between the times of
1155 and 1430. After leaving that area, he went to JPC for “30” minutes
from “1430” until “1500” and then to DYRS for “30” minutes from “1500”
until “1530.” If in his statement, he went to the Fifth District to begin his
HVO shift (which was scheduled for 1500-2300) when he was done
“handling the juvenile,” then he should have arrived at the Fifth District not
too long after 1530. However, Officer [Redacted] did not check in at the
Fifth District to start the HVO shift until 2200.28
Moreover, the investigation continued to develop information while
trial was taking place and shortly afterwards.29 [Redacted] was specifically

to still be completed, if the information to arrest was available at the scene questions could
have been raised as to why then Officer [Redacted] did not report to his HVO shift until
2200.
28
Supporting that conclusion that there was some type of unnecessary delay in Officer
[Redacted] completing the arrest in order to avoid working the majority of his HVO shift
(while still receiving credit) were statements by Sergeant Kenneth Harvey and Sergeant
Andrew Zabavsky. Sergeant Harvey gave his statement on September 1, 2015 (before trial
began). He was the “day work check-off official” for officers working the 0700-1500 shift,
and said he spoke with Officer [Redacted] around 1500 and [Redacted] informed him that he
needed to be “boxed in” because he was finishing the processing of an arrest. There was no
information that indicated the processing of the arrest would take another seven hours.
Additionally, though Sergeant Zabavsky’s statement occurred after [Redacted] had testified
but before trial concluded, his statement said that Officer [Redacted] reported to the High
Visibility Overtime shift at 2200 and said he had “just concluded processing an arrest.”
Officer [Redacted] submitted an SF 1130 requesting eight hours of credit for working the
High Visibility Overtime shift, and Sergeant Zabavsky said he had a discussion with the
midnight watch commander about whether Officer [Redacted] would be granted the full eight
hours of credit or just one hour since he did not actually report until 2200. At the time, they
did give him credit for the entire eight hours, but an investigation into the arrest began shortly
after.
29
While all of the information in these documents might not specifically been able to
have been used by the defense at trial, it is still important here for two reasons. First, all of
this information was within the government’s possession either as trial progressed or within a

25
told he was a “target” of the investigation in the morning of September 16,
2015.30 In the September 16 statement, Officer [Redacted] admitted that his
PD 775 (vehicle log) was not accurate. However, he did not elaborate on that
point and responded, “I don’t recall,” when asked the following questions:
what time he arrived at JPC to process the arrest, what time he concluded the
arrest, and what time he began his HVO shift.31
The following day, while the jury was deliberating, Officer
[Redacted] gave yet another statement. He was specifically asked to account
for his actions in an arrest where arrest numbers were requested at 1300 but
he did not conclude processing the arrest until 2200. He answered:

While assisting on the scene in the 800 block of Bladensburg road

NE, I, Ofc. Steven R. [Redacted] was in the block waiting for a First
District Detective to arrive on the scene and have a show up
conducted. . . . The show up was positive for the driver of the vehicle.
Once the First District Detective concluded her initial interview of all
the subject the juvenile that was involved was transported by me . . .
to Juvenile processing center. I remained on the scene at JPC
processing the juvenile until the lead Detective figured out the charges
in reference to the case. Once the charge was determined I completed
the paper work and then transported the juvenile to DYRS.
Again, he did not provide any specific times nor did he address or
explain how arrest numbers could be given at 1300, a person actually placed

month of trial, and known to the government by the time it spoke to this Court extensively
about the investigation on March 4, 2016. And second, many of the questions asked of
[Redacted] in the investigation about his whereabouts would have been similar to those the
defense would have asked him during trial in front of the jury as they each would have gone
to his credibility and possible corruption.
30
Per the PD 118, the statement started at 0750 and concluded at 0800. On September 16,
2015, the final witness testified in this case, followed by instructions, and closing argument.
31
In that statement, he also said that he checked off his day shift with Sgt. Harvey,
notified Sgt. Zabavsky and Lt. Rivers when he returned to the Fifth District after processing
the arrest, and he did not request that an official assist him with the arrest classification.

26
under arrest before leaving the scene, but he somehow lacked the needed
information to determine the charges until after the detective later finished
her interviews, which at minimum would raise issues as to the
constitutionality of the initial seizure of the juvenile.
On September 19, 2015, a day after the jury returned its verdict in this
case, the Internal Affairs Bureau issued its final investigative report. Though
it made no specific findings that Officer [Redacted] lacked credibility or was
untruthful, it devoted four full paragraphs to various “discrepancies” in
information he provided, notably that he could not recall times for his
actions. The report recommended that Officer [Redacted] be “cited for
adverse action” with a suspension up to four days.32
All of the above information was known to the government by the
time it appeared before this Court on March 4, 2016.

2) The reality of the so-called “sleeping on the job”

incident reveals it to be far more damaging to Officer
[Redacted]’s credibility then the government had
previously made known.
Similar to what has since been learned about the investigation that had
been pending during trial, the “sleeping on the job” incident first mentioned
at the March 4, 2016 post-trial hearing turned out to have far more

32
Specifically, IAB found that he should be cited for “failing to obtain the necessary
information prior to affecting the arrest [] and consequently spent approximately 8 hours
processing an arrest” and for “fail[ing] to properly document each assignment and the
respective times on his PD 775.” On October 28, 2015, after a Commander’s Resolution
hearing on October 23, 2015, the penalty was reduced from an adverse action to a corrective
action (resulting in a PD 750 being placed in his file). The conclusion found that Officer
[Redacted] “did obtain the required information for the arrest prior to responding to Juvenile
Processing,” but that he also “fail[ed] to properly document[] his 775.” The hearing’s
conclusions still provided no answers as to specific times for Officer [Redacted]’s actions or
how arrest numbers could be issued at 1300 but an officer be unable to finish paper work for
a single arrest for another nine hours.

27
significance to Officer [Redacted]’s credibility than ever let on by the
government.33 On October 17, 2017, the government disclosed to the
defense the source documents for this sustained finding (IS#13-001400),
which revealed another incident where the officer’s on-the-job whereabouts,
actions, and credibility had been called into question in an investigation that
concluded less than a year before the arrest in this case.
On May 23, 2013, at 0318 hours, the Fifth District dispatcher
broadcasted a radio run for a burglary one in progress and assigned Officer
[Redacted], using his call number over the radio. He did not respond. The
dispatcher tried using his full name. Still nothing. Instead, other units were
forced to respond. When they arrived, they quickly learned it was an armed
robbery in progress, gave a description of the suspects, and requested
assistance. Again the dispatcher tried to raise Officer [Redacted] to assist.
No response.
Having heard nothing for nearly an hour from Officer [Redacted], the
dispatcher at 0403 over the main channel alerted all on duty that she had a
“missing officer” whose whereabouts were unknown. Sergeant Hill asked
the dispatcher to try to raise Officer [Redacted] over the radio using his
name. She again tried but received no response. Lieutenant Griffin asked the
dispatcher how long she had been trying to locate him. “[F]or quite a while,”

33
On March 4, 2016, the government told this Court that Officer [Redacted] had a
sustained finding against him for “not timely respond[ing] to a radio run because he had
fallen asleep.” (Tr. 3/4/16 at 12). In its pleading to the Court of Appeals, the government
wrote, “In addition, the recent examination of PPMS records revealed that the sleeping-on-
duty incident reported at the March 4, 2016, hearing resulted in disciplinary action against
Officer [Redacted] that appellant may find relevant to his defense theory.” It should be noted,
the source documents for the investigation pending during trial, which the supervising
prosecutor said she had reviewed, indicated that the “sleeping-on-duty incident” resulted in a
corrective action of a “Letter of Prejudice (IS#13-001400).”

28
she replied. The dispatcher’s system showed that Officer [Redacted] should
have been at 16th & Isherwood, NE, but Lieutenant Griffin confirmed he was
not there. Police then checked the entire Fifth District parking lot for Officer
[Redacted] or the vehicle he had been assigned that night, but there was no
sign of either.
Finally, at 0418, an hour since the initial radio call, Officer [Redacted]
responded. The dispatcher asked for his location. At first, he said only that
he was at “17th Street.” The dispatcher asked him to be more specific and he
then said, “17th & Maryland.” At 0422, Sergeant Hill went to that location
where he asked Officer [Redacted] if everything was alright. Officer
[Redacted]’s initial response was, “I ain’t going to lie. I had tournaments and
court appearances. I nodded off.” But when Sergeant Hill asked him if he
had been at the same location the entire time people were trying to locate
him, he conceded, “no.”
Later that morning, Sergeant Hill asked Officer [Redacted] to
complete a PD 119. In his statement, Officer [Redacted] said that he “never
received a missed radio run and was not advised by the dispatcher or the
sergeant, that I had missed a radio run,” despite the numerous attempts to
contact him over the radio. He admitted his “full attention was not on the job
or monitoring the radio” and on that day he was not capable of giving
“100% to the job” because he had “a lot of things going on in [his] family
and [he] should have requested leave to rest.” When asked where he was
during that time period, Officer [Redacted] could muster only that he was
“within the confines of the Fifth District.” There is no indication he was
asked to be more specific. His statement, provided under the penalty of

29
perjury, mentioned nothing about falling asleep. On July 3, 2013, a letter of
prejudice was issued with the hand-written notation, “Remove in one year:
July 3, 2014.”34
3) The Giglio forms.
The USAO utilizes a Giglio/Lewis Questionnaire as one way to
attempt to discharge its Brady obligations by either having police officers
complete the forms or by asking each officer the questions. On November
30, 2017,35 the government informed the defense that on three occasions
prior to trial Officer [Redacted] completed the USAO’s Giglio/Lewis
Questionnaire forms. Despite there being at least eight occurrences of
sustained findings against Officer [Redacted] documented in PPMS,36 and at
least one known instance of a court finding that he had made an illegal
seizure and arrest,37 as well as the investigation that had been pending at the

34
The arrest in this case and Officer [Redacted]’s initial statements occurred on June 20,
2014.
35
The forms used in this case are attached at App. 175-77. In its February 24, 2016
Motion to Compel, one of the defense requests was for “all Giglio forms Officer [Redacted]
completed during the pendency of this case[,]” (app. 17), a request that was repeated in the
defense’s opposition to the Government’s suggestion of remand, (app. 27). On November 30,
2017, the government provided the defense blank copies of its Giglio forms and reported how
Officer [Redacted] answered the questions. On January 20, 2015, [Redacted] completed the
questions on the form at app. 175. The USAO updated its form in March, 2015, and used the
form at app. 176-77 when [Redacted] responded on August 19, 2015 and September 8, 2015.
36
According to the Memorandum of Agreement (MOA) between the DOJ and MPD
creating PPMS, the system tracks all misconduct on the part of MPD officers. See MOA,
¶106-107, at https://www.justice.gov/crt/memorandum-agreement-united-states-department-
justice-and-district-columbia-and-dc-metropolitan#_1_16 (last visited December 12, 2017).
37
The defense is aware of at least one instance where a judge found that Officer
[Redacted] made an illegal search, seizure, and arrest. See Shelton v. United States, 929 A.2d
420, 422-23 (D.C. 2007) (“The central question in this appeal, the parties agree, is
whether Officer [Redacted] had probable cause to believe that an offense had been or was
being committed when he ordered the arrest team to intercept and arrest appellant. . . . [I]f we
conclude—as we do today—that the government’s evidence failed to show that under the
circumstances Officer [Redacted] had probable cause to order appellant's arrest, then the
cocaine was inadmissible as the product of an unreasonable search and seizure in violation of
the Fourth Amendment.”).

30
time of trial, Officer [Redacted] gave answers that reasonably could be
considered misleading, untruthful, and attempts to “thwart the ascertainment
of truth[.]” Longus v. United States, 52 A.3d 836, 852 (D.C. 2012).
First, on January 20, 2015, despite the history of sustained findings
against him for on-the-job misconduct, Officer [Redacted] answered “no,”
when asked, “Have there ever been any . . . administrative findings
concerning your . . . official misconduct (e.g., failure to disclose exculpatory
information; witness coaching; obstructing; manufacturing or altering
evidence).” Similarly, on both August 19, 2015 and September 8, 2015, he
was asked, “[H]ave any findings ever been made during a[n] . . .
administrative proceeding concerning your . . . official misconduct (which
includes, but is not limited to, failure to disclose exculpatory information;
witness coaching; obstruction; manufacturing or altering evidence).” He
again answered, “no.”
Second, on August 19, 2015 (five days after the arrest that led to his
being investigated and the same day that he provided a statement in that
investigation), Officer [Redacted] was asked, “Are you aware of any . . .
conduct allegedly committed by you that is currently under review and/or
investigation by your agency[?]” According to the government, he initially
answered that question “yes” before crossing out the answer and writing in
“no.”38 He answered that question “no” when asked again on September 8,
2015. And third, on both August 19, 2015 and September 8, 2015, Officer

38
On December 7, 2017, the government informed the defense that in response to a
December 3, 2017 defense request, it asked Officer [Redacted] why he had changed his
initial response. Over two years since it had occurred, unsurprisingly, [Redacted] did not
remember but thought it might have been that he misunderstood the question. He added that
he did not believe he was under any pending investigation at that time.

31
[Redacted] was asked, “Has a judge ever found that you . . . made an
unlawful arrest, conducted an illegal search or seizure,” Officer [Redacted]
answered “no” both times.
4) A history of missing court.
At the March 4, 2016 hearing on the defense’s motion to compel
Brady, the supervising AUSA did tell this Court that there were “some court
no-shows” but did not provide any other details. In October, 2017, it was
disclosed that the officer had at least six instances as an MPD officer where
he was disciplined for failing to appear in court.39
5) Additional incidents impacting Officer [Redacted]’s
credibility.
Based on the information disclosed to the defense in October, 2017, it
appears the government had in its possession at the time of trial additional
evidence of [Redacted]’s past with MPD that could have been used as
impeachment, even if the incidents themselves may not have resulted in
sustained findings, especially when combined with the other instances of
misconduct. See Boyd v. United States, 908 A.2d 39, 61 (D.C. 2006)

39
The information disclosed by the government only listed five such occurrences, but the
notation for the oldest court no-show stated that it was the “2nd”such time Officer [Redacted]
had failed to appear in court when scheduled, indicating there was a previous (yet unlisted,
undisclosed) incident. The five disclosed incidents were: 1) On May 5, 2009, a sustained
finding was made against Officer [Redacted] for failing to appear for papering; he was
scheduled to appear at 8:00 but did not show up until after 10:00 and claimed he was not
aware he had to be there on time because he worked the overtime shift; a PD 750 dereliction
report was issued; 2) On March 2, 2007, Officer [Redacted] “failed to appear in court for a
witness conference” even though a Cans request was created and served on him on February
21, 2007; a sustained finding was issued against Office [Redacted]; 3) On June 27, 2006,
Officer [Redacted] failed to appear in court and a sustained finding was issued; 4) In 1997,
Officer [Redacted] was disciplined for his 3rd no show” with a punishment of “3 days
SWOP”; 5) In 1997, Officer [Redacted] was disciplined for his “2nd no show” with a
punishment of “1 day SWOP,” which the defense believes means suspended without pay.

32
(information should be considered not item by item but cumulatively when
deciding if it would have been favorable and material).
First, in 2005, MPD initiated an investigation into Officer [Redacted]
and another officer after “2 ziplock bags of marijuana were found in the
trunk of a 5D unmarked cruiser, during a vehicle maintenance check by
Fleet Mgmt.” The case appears to have been dismissed due to “insufficient
facts,” but does not change that the underlying conduct—an officer having
drugs concealed in an unmarked cruiser—could have produced information
relevant for a bias or corruption bias cross-examination. See, e.g., Coates v.
United States, 113 A.3d 564, 576 (D.C. 2015) (a person may be impeached
on a prior bad act that has not resulted in a criminal conviction if the
examiner has a factual predicate for such a question and the bad act bears
upon the veracity of the witness).40 And second, in 1997,41 Officer
[Redacted] received a punishment from MPD of “10 days SWOP,” for a
“neg use of service weapon.” No other information about this potentially
serious issue has been provided to the defense.42

40
Though there is a notation in the USAO’s own document that describes the
investigation as one that was “sustained/disclose,” which according to the government
“indicates that this Office is disclosing the investigation because there is a sustained finding
against an officer or for other reasons,” the government has not provided the defense any
additional documents or information related to this incident.
41
Though the amount of time that has elapsed since the prior bad act may be a
consideration in determining whether to admit it, close proximity is not required and is only a
factor to be weighed in conjunction with the nature of the act, the importance of the witness,
and its relevance to the officer’s credibility. See Deary v. City of Gloucester, 9 F.3d 191, 196
(1st Cir. 1993) (prior bad act still admissible though it occurred ten years prior to trial);
United States v. McClintic, 570 F.2d 685, 691 n.6 (8th Cir. 1978).
42
The government disclosed one other incident that may have given [Redacted] another
motive to curry favor in this case. At the time of the arrest in this case and his initial
statements to detectives, it appears that Officer [Redacted] may have been under
investigation by the Office of Police Complaints (OPC). Based on information provided by
the government, OPC dismissed the allegation as it related to Officer [Redacted] and
ultimately the case was disposed through mediation between the complainant and a different

33
 ARGUMENT

I. THE GOVERNMENT’S SUPPRESSION OF OFFICER

[REDACTED]’S HISTORY OF SUSTAINED FINDINGS
VIOLATED BRADY.
The Fifth Amendment’s Due Process Clause requires the prosecution
to disclose to the defense material evidence—including impeachment
evidence—that is favorable to the accused. Miller v. United States, 14 A.3d
1094, 1106 (D.C. 2011) (citing Brady v. Maryland, 373 U.S. 83, 87 (1963);
Kyles v. Whitley, 514 U.S. 419, 433 (1995). The suppression of favorable
evidence “denies the defendant liberty without due process of law
‘irrespective of the good faith or bad faith of the prosecution.’” Miller, 14
A.3d at 1107 (quoting Brady, 373 U.S. at 87). In reviewing a Brady claim, a
court considers three issues: (1) whether the information in question is
“favorable to the accused”’ (2) whether this information was possessed and
suppressed by the government, “either willfully or inadvertently”; and, (3)
whether that information was material, i.e., whether there is a “reasonable
probability that, had the evidence been disclosed, the result of the
proceeding would have been different.” Vaughn v. United States, 93 A.3d
1237, 1254 (D.C. 2014) (quoting Miller, 14 A.3d at 1109).
Here, before and during trial, the government possessed and
suppressed all information about Officer [Redacted]’s sustained findings,
vaguely mentioning them six months after verdict in response to a direct
question from this Court, and then waited for two years following trial to

officer. The defense concedes it is possible the investigation never involved Officer
[Redacted] at all. However, if Officer [Redacted] was facing OPC investigation at the time of
arrest and his initial statements, he would have had the same motive to curry favor with the
government as if he was pending investigation by either the USAO or MPD. The government
has not provided any additional information as to this investigation.

34
disclose the documents that even began to provide the defense an accurate
understanding of the information. The evidence of sustained findings against
[Redacted] for having been missing for over an hour despite numerous
attempts to locate him, his repeated failures to appear in court, as well as his
status for being investigated yet again, all called into question his credibility
in accounting for his conduct on the job when questioned. Additionally,
[Redacted] could have been impeached with his prior bad act after illegal
drugs were found in the trunk of a police vehicle he was connected to, with
his misleading and false responses to the USAO’s Giglio questionnaire, and
with his ten-day suspension for negligent use of his service weapon.
The suppressed evidence would have supplied the jury with “concrete,
as opposed to speculative” reasons, see Coles v. United States, 36 A.3d 352,
359 (D.C. 2012), why [Redacted] lied in order to avoid being “looked into”
for his improper response to the shooting and thus turned Mr. Anderson’s
conduct into an AWIKWA. (Tr. 9/16/15 at 93). Had the defense been armed
with all or even some of this evidence—which was all in the government’s
possession prior to trial—it would have powerfully used it to fortify the
defense theory that [Redacted] lacked credibility. It stands to reason that
because of his checkered past with MPD plus his motive to curry favor at the
time of arrest and trial, [Redacted] would have had all the more reason to lie
and hide the truth in this case—that he ran away upon hearing “gun” instead
of attempting to protect the civilians.43 Accordingly, in a case that hinged on

43
For instance, MPD’s General Orders define the “fundamental duty” of law
enforcement officers to serve the community” by “safeguard[ing] lives and property,” see
G.O.-201.36(III) “Metropolitan Police Department Sworn Law Enforcement Officer Code of
Ethics” (available at https://go.mpdconline.com/GO/3729000.pdf), to at all times “[c]onduct
their . . . professional lives in such a manner as to avoid bringing discredit upon themselves,”
and “[r]espond truthfully when questioned by superior officers in matters relating to the

35
Officer [Redacted]’s credibility, if the government had disclosed this
information in a manner to permit the defense to have made effective use of
it at trial, there is a reasonable probability the jury’s verdict would have been
different. See Miller, 14 A.3d at 1109. Dismissal, or at minimum reversal, is
required.

A. The withheld information was favorable to Mr. Anderson as

MPD’s litany of investigations and sustained findings
against Officer [Redacted] was information the defense
“would want to know about.”
Information that is favorable to the accused includes anything “that
the defense would want to know about.” Vaughn, 93 A.3d at 1254 (quoting
Miller, 14 A.3d at 1110). Whether information is favorable must be assessed
from the perspective of the defense, not the prosecutor. Vaughn, 93 A.3d at
1254. “Favorable information includes impeaching information.” Id. (citing
Giglio v. United States, 405 U.S. 150, 154-55 (1972)). “[B]oth the Supreme
Court and [the Court of Appeals] have repeatedly made clear that
impeaching information does not have a lesser standing in the context of the
government’s Brady disclosure obligations.” Id. That is “because “[t]he
jury’s estimate of the truthfulness and reliability of a given witness may well
be determinative of guilt or innocence.” Id. (quoting United States v. Bagley,
473 U.S. 667, 676 (1985)).
Here, the withheld evidence was clearly favorable to the defense
because it would have greatly enhanced the defense trial theory that Officer
[Redacted], the government’s key witness and complainant, was motivated
to lie to cover up his inadequate reaction to the shooting because the truth

official business of the MPD.” See G.O. 201.26(V) “Duties, Responsibilities and Conduct of
Members of the Department” (available at https://go.mpdconline.com/GO/GO_201_26.pdf).

36
would have jeopardized his career and reputation. See Fields v. State, 69
A.3d 1104, 1115-16 (Md. 2013) (a court may allow the government to
withhold evidence of sustained findings contained in an officer’s personnel
file “only if nothing in it, in anyone’s imagination, [could] properly be used
in defense or lead to the discovery of usable evidence”) (quotation marks
omitted). It is then axiomatic that the defense would have “want[ed] to know
about” any additional information that raised questions about [Redacted]’s
credibility, motives, and actions as a police officer, such as that he had a
history of sustained findings for dereliction of duty and was in the midst of
yet another investigation questioning his conduct. Vaughn, 93 A.3d at 1254
(citation omitted).
That Officer [Redacted] had numerous sustained findings against him
for misconduct as a police officer is classic favorable information. See
generally Farley v. United States, 694 A.2d 887, 890 (D.C. 1997) (citizen
complaint regarding a police officer to Civilian Complaint Review Board
could be Brady information); Bullock v. United States, 709 A.2d 87, 93
(D.C. 1998) (inviting defendant to file §23-110 to litigate whether
suppression of pending internal investigation of law enforcement officer
violated Brady); Nuckols v. Gibson, 233 F.3d 1261, 1267-68 (10th Cir.
2000) (Brady violation when prosecutor withheld investigation into officer’s
sleeping on the job, role in thefts from the police department, and other
nefarious firearms transactions because his credibility was key to
suppression hearing on Miranda). The same holds true for evidence that he
had a motive to curry favor at both the time of trial, due to the pending
investigation, and the time of arrest, due to the punishment from his 2013

37
sustained finding having been in his file at the time. See Napue v. Illinois,
360 U.S. 264, 270 (1959) (a juror may have discredited a witness had it
known a witness had a motive to curry favor with the government).44 Thus,
because the information behind the investigations and findings involving
Officer [Redacted], and his misleading responses to the Giglio questionnaire,
was the type that “any competent defense lawyer would have been intensely
interested in,” the favorable requirement is easily met. Vaughn, 93 A.3d at
1255.

B. The withheld information was material as the government’s

failure to disclose it undermined confidence in the verdict.
Evidence is material when there is a “reasonable probability that, had
the evidence been disclosed to the defense, the result of the proceeding
would have been different.” Bagley, 473 U.S. at 682. “A defendant need not
demonstrate that after discounting the inculpatory evidence in light of the
undisclosed evidence, there would not have been enough left to convict.”
Kyles, 514 U.S. at 434-35. The “reasonable probability” standard is lower
“and should not be confused with [] a requirement that a defendant prove by
a preponderance of the evidence that but for the error things would have
been different.” Perkins v. United States, 936 A.2d 303, 306 (D.C. 2007)
(quotation marks and citation omitted). “Rather, since Brady is a rule of
fairness, the materiality threshold is met if, in the absence of proper
disclosure, we question whether the defendant received a fair trial and our

44
The favorability of this information should not be considered “item by item,” but rather
“collectively” as a series of sustained findings and investigations involving the government’s
key witness. See Kyles, 514 U.S. at 436-37 (material should be considered “collectively” as
the prosecution has the responsibility to “gauge the likely net effect of all such evidence”);
Boyd v. United States, 908 A.2d 39, 61 (D.C. 2006) (citing Kyles, 514 U.S. at 436).

38
‘confidence’ in the outcome of the trial is thereby ‘undermine[d].’” Vaughn,
93 A.3d at 1262 (quoting Kyles, 514 U.S. at 434).

1. Impeachment evidence is Brady and includes evidence

of bias, corruption, and motive to curry favor.
Because showing weaknesses in inculpatory evidence makes a
person’s guilt less likely, impeachment evidence must be treated the same as
exculpatory evidence. See, e.g., Lewis v. United States, 408 A.2d 303, 307
(D.C. 1979) (“‘impeaching evidence’ is exculpatory”); Lindsey v. United
States, 911 A.2d 824, 838 (D.C. 2006); Sykes v. United States, 897 A.2d
769, 778 (D.C. 2006); Bagley, 473 U.S. at 676. One form of impeachment
evidence is bias evidence, which “refers both to a witness’ personal bias for
or against a party and to his or her motive to lie.” Longus v. United States,
52 A.3d 836, 850 (D.C. 2012) (citation omitted). Evidence is probative of
bias whenever “a jury might reasonably have found [it] furnished the witness
a motive for” shading the truth, Delaware v. Van Arsdall, 475 U.S. 673, 679
(1986), and evidence that shows a possibility of bias is “always relevant as
discrediting the witness and affecting the weight of his testimony.” Davis v.
Alaska, 415 U.S. 308, 316 (1974) (citation omitted).
A distinct subset of bias impeachment pertains to a witness’s
“corruption—his ‘willingness to obstruct the discovery of the truth by
manufacturing or suppressing testimony’ or otherwise ‘to thwart the
ascertainment of truth in a judicial proceeding.’” Coates v. United States,
113 A.3d 564, 572 (D.C. 2015) (quoting Longus, 52 A.3d at 852) (other
citations omitted). See also In re C.B.N., 499 A.2d 1215, 1217 (D.C. 1985)
(corruption includes “a general willingness to lie upon the stand”). “The case

39
law and the rationale of the corruption doctrine extend, however, beyond
incentives to fabricate that are associated personally with the defendant. The
willingness to testify falsely goes to the core of the witness’ credibility,
regardless of his personal or pecuniary relationship with the defendant, ” In
re C.B.N., 499 A.2d at 1219. Further, corruption bias is not limited to
instances of conduct actually occurring in a judicial proceeding, but
encompasses evidence showing any type of “corrupt activity” that would be
indicative of a potential “general willingness to lie” in an official
proceeding. Id. This is because the willingness to offer false or misleading
statements in the past suggests that a person may be lacking in certain
testimonial faculties. See id. (citing 3A Wigmore § 957, at 803).45
Another form of impeachment is a witness’s motive to curry favor
with the government due to the existence of a pending investigation. Artis v.
United States, 505 A.2d 52, 54 n.2 (D.C. 1986) (citing Tabron v. United
States, 444 A.2d 942, 943 (D.C. 1982)). As the Court of Appeals explained,
“It is not a prerequisite to cross-examination on a basis of a motive to curry
favor for there to be a deal already in place; it is rather the witness’
subjective belief of the potentially beneficial effects that his testimony may
have upon his own situation that provides the basis for such inquiry on
cross-examination.” Lewis v. United States, 10 A.3d 646, 653 (D.C. 2010).
Further, bias existing at some point during an investigation is relevant, even

45
For example, the Court of Appeals has included within the definition of corruption bias
evidence of a witness’s out-of-court statements to the defendants about possible testimony. In
re C.B.N., 499 A.2d at 1217. The Court reasoned such conduct demonstrated a willingness to
thwart the ascertainment of truth in a potential official proceeding. See also Vaughn, 93 A.3d
at1265 n.33 (stating that withheld information of corruption stemming from an internal,
administrative investigation could have been used as corruption bias evidence but not
deciding the issue because it found a Brady violation regardless).

40
if that bias is based on a relationship that ended by the time of testimony as a
witness “may make statements to an investigator . . . in order to curry favor,
and then be called to testify after the relationship is ended, but still be
subject to the same bias motivation.” Id.
If a witness is subject to a pending investigation, the witness must be
aware of the investigation but need not know every detail, so long as the
witness is not “completely in the dark.” Williams v. Scott, 35 F.3d 159, 162
(5th Cir. 1994). The defense need only have a “well-reasoned suspicion” that
the person is aware of the investigation in order to cross-examine the witness
for a motive to curry favor. McCloud v. United States, 781 A.2d 744, 753
(D.C. 2001); see also Cunningham v. United States, 974 A.2d 240, 245-46
(D.C. 2009) (because an “important purpose of cross-examination is
exploration,” a trial court “must give counsel some leeway to probe for
information” to establish bias) (internal citation omitted).

2. The government’s withholding of [Redacted]’s litany

of sustained findings, awareness of the investigation
pending at trial, and misleading responses to the
Giglio questionnaire, hobbled the defense’s
impeachment of the key witness at trial.
Here, the government withheld substantial amounts of evidence that
would have established all three forms of impeachment: bias, corruption,
and motive to curry favor. It is critical to view the withheld evidence
cumulatively in conjunction with the officer’s key role in the government’s
case and the defense’s trial theory. Doing so shows the materiality of the
withheld evidence because it would have been powerful evidence of Officer
[Redacted]’s lack of credibility and incentive to curry favor in order to avoid
future/additional/more serious discipline. Further, [Redacted]’s history of

41
sustained findings gave him a “self-interested motive to lie” in this case to
protect his “stature within the police department.” Martinez v. United States,
982 A.2d 789, 794 (D.C. 2009) (citing Beynum v. United States, 480 A.2d
698, 707 (D.C. 1984)). The jury may well have given credence to the theory
of bias that the defense presented at trial had the defense been able to deploy
evidence of [Redacted]’s history of sustained findings for dereliction of
duty, and combine it with the fact that [Redacted] was again, during trial, in
the midst of yet another investigation into his mishandling of a criminal
investigation. The majority of [Redacted]’s past incidents raised questions of
his credibility when confronted and having to account for his on-the-job
misconduct, similar to the defense’s trial theory. But as things stood, the jury
had no reason to think that [Redacted] had anything but a lengthy, clean
record, and thus little incentive to lie to protect his career.
The investigation that was pending at the time of trial could have been
used to cross-examine [Redacted] for motive to curry favor as the defense
would have had a “well-reasoned suspicion” he was aware of the pending
investigation, McCloud, 781 A.2d at 753. Three weeks before trial and five
days after the arrest, he was questioned and asked to give a statement in a
PD 119 about his actions in processing the arrest. Showing he was not
“completely in the dark” that he was being investigated, Williams, 35 F.3d at
162, was the PD 119 he signed on August 19, 2015. The form noted that the
“nature of [the] investigation” was to look into the “processing” of an arrest
when he was one of two arresting officers and he gave his account of how he
processed the arrest.

42
 Moreover, the information known at the time of trial could have been
used to question [Redacted]’s credibility as an officer who, at minimum, will
willingly mislead and lie in order to conceal his on-the-job misconduct.
Most notably would have been the basic undisputed point that his vehicle
log showed him leaving DYRS at 1530, and his own statement said he went
to the Fifth District when he finished the arrest (where he did not report until
2200), leaving his whereabouts unaccounted for six hours. The defense
could have asked him questions geared at his candor about the exact times
for his actions in the August 14, 2015 arrest (the same questions the
investigation itself never got answers to), which would have raised serious
questions of possible corruption if he had deliberately delayed reporting to
his HVO shift in order to try to get credit for the entire eight hours while
showing up for only the last hour, or had once again deliberately disappeared
while on duty.46 Even if the officer had been processing the arrest the entire
time, and just careless in his paperwork (somehow leaving a six-hour gap),
that would have connected directly to the defense theory that at the time of
the shooting he had been careless, caught off guard, and not paying attention
leading him to act in a manner that caused the firefighter to scold him.
Next, while this Court, based on the proffers from the government,
concluded the “sleeping on the job” incident was of minimal importance and
occurred well before trial, the source documents disclosed two years after
trial revealed it was far more than an officer who had briefly fallen asleep.

46
The Court of Appeals in Bennet v. United States, 797 A.2d 1251 (D.C. 2002),
explained that the inquiry is not whether a jury would have definitely concluded the evidence
established corruption or shown a willingness to thwart the truth, but only if there was
enough of a factual basis to believe the jury “may well” reach such a conclusion. Here, due to
the officer’s own statements, own arrest report, and own vehicle log, the jury “may well”
have reached a conclusion of corruption for his actions in the August 14, 2015 arrest.

43
The incident was actually temporally related to this case as it had occurred in
2013 and the punishment was handed down in July, 2013, less than a year
before the arrest in this case. The handwritten notation on the letter of
prejudice spelling out his punishment said the information was to remain in
his personnel file for one year.47 At the time he made the arrest in this case
and gave his initial statements, he would have thus had a continued motive
to curry favor to avoid more serious punishment because it all occurred less
than a year later.
And the facts themselves revealed it was another incident where
[Redacted]’s whereabouts were questioned and unaccounted for while he
was on duty, and his credibility and candor in explaining his actions
doubted. For at least an hour, the dispatcher, other officers, and his superiors
could not locate [Redacted]. He missed multiple radio calls—calls seeking
him out by his call number, by his full name, calls instructing him to respond
to a crime in progress, and calls seeking assistance for other officers in their
response to the armed crime. At one point, the dispatcher had to put out an
alert that an officer was “missing,” which one can only imagine created
instant fears and concerns for [Redacted]’s safety among the other police
officers doing their jobs that night.
But when he finally appeared and was confronted about his
whereabouts, [Redacted] showed a willingness to lie in order to hide the true
extent of his failing—exactly as the defense argued to the jury in this case.
First, when the dispatcher asked for his location, he said only “17 th” street.
Likely having run out of patience with this officer, she had to ask him to be

47
The handwritten notation provided that that the letter of prejudice was to remain in his
file until July 3, 2014, and the arrest in this case occurred on June 20, 2014.

44
more specific. He then said “17th & Maryland.” Second, when Sergeant Hill
asked why he had not responded, [Redacted] at first said he had “nodded”
off. But after the sergeant followed by asking if he had been in the same
location the entire time, he had to admit, “No.” Obviously, had he been
asleep the entire time (still inexcusable), he would have at least stayed in one
location. In his written statement later that morning, under the penalty of
perjury, he made no mention of ever being asleep (an omission revealing he
had lied to Sergeant Hill initially). And third, he again refused to be
forthcoming in his answers, saying only that he was “within the confines of
the Fifth District” when asked where he was all that time. See Metropolitan
Police Department: The Fifth District Community (“The Fifth District
covers much of the Northeast quadrant of the city.”) (available at
https://mpdc.dc.gov/node/208092) (last visited December 12, 2017).
And once again, his excuse for why he could not be located for an
hour while on duty connected precisely with the defense theory at trial: his
“full attention” was not on his job, he was not able to “give 100% to the
job,” and he “had a lot of things going on” at the time. The defense at trial
was that Officer [Redacted] had not been giving his “full attention” to the
situation, which explained why he never pulled out his weapon, only had a
pad of paper in his hand, and reacted in such an immediately noticeable
improper manner that a firefighter with no bias in the case had to yell at him.
At minimum, the combination of the pending investigation and the
2013 sustained finding when he was missing for an hour would have been
devastating alone to the officer’s credibility. But his credibility could have
been further eroded with the additional incidents the government disclosed

45
to the defense years after trial. This was not an officer with a spotless 21-
year career on the force—as the jury was led to believe—but someone: with
at least eight sustained findings against him; who had been investigated after
illegal drugs were found in the trunk of a car he was connected to;48 who had
to be sanctioned at least six times for not showing up to court; who received
a ten-day suspension for negligent use of his service weapon; and who once
again as he sat on the witness stand in front of the jury was facing another
investigation into his conduct on the job.
Further, the defense could have questioned him about his misleading,
incomplete, and untruthful responses to the USAO’s Giglio questionnaire—a
form he knew was aimed at helping the government meet its Brady
obligations. Despite his history of being sanctioned for official misconduct
he answered those questions in the negative; despite at least one known
instance where a judge found he made an illegal stop and arrest he answered
that question “no;” and despite knowing about the pending investigation at
the time of trial he initially answered that question “yes,” before crossing it
out to answer “no.” All of those false responses showed a “propensity or
willingness to thwart the ascertainment of truth in a judicial proceeding,”

48
While MPD’s investigation, according to the information provided by the government
at this stage, found insufficient facts to continue with its investigation into Officer [Redacted]
for this incident, the defense still would have had a reasonable basis to impeach him about
this prior bad act where illegal drugs were found in a police vehicle connected to Officer
[Redacted]. The defense would have had a basis to believe that either the drugs were his own
personal drugs that he left there, that he was stealing evidence that had been seized in a case,
or that he had mishandled seized drugs in an arrest. Any of those options would have called
into question his character for truthfulness as each would be “characterized by an element of
deceit or deliberate interference with [the] ascertainment of truth.” See Riddick v. United
States, 806 A.2d 631, 637-38 (D.C. 2002) (discussing the requirements to impeach a witness
about prior bad acts that did not result in convictions).

46
bearing “directly on [[Redacted]’s] veracity[.]” Bennett v. United States, 763
A.2d 1117, 1123 (D.C. 2000).
The government’s suppression of this extensive amount of powerful
impeachment evidence in a case that turned on the jury’s assessment of the
strength of Officer [Redacted]’s credibility was sufficient to undermine
confidence in the verdict, especially due to [Redacted]’s dual role as the first
responding officer and as the complainant. The suppressed evidence would
have exponentially enhanced the defense theory already presented at trial.49
But while the defense’s theory that [Redacted] lacked credibility was
supported by trial evidence, the suppressed evidence (notably the
investigation pending at trial and the 2013 sustained finding after he could
not be located for at least an hour) would have made it compelling to the
jury in a way that nothing else available at trial could.
The jury likely rejected the defense theory that Officer [Redacted] was
not fired upon and instead ran away by reasoning that based on the trial
evidence an officer with a clean record would not lie—which the jury likely

49
In closing, the defense argued that there was “significant reason to doubt” Officer
[Redacted]’s version of events. (App 120; Tr. 9/16/15 at 85). The defense pointed out that an
officer properly performing his duties would not have approached the vehicle with only a pen
and notebook in his hand, but that the reason [Redacted] only had those items at the time of
the shooting was because he was not actually approaching Mr. Anderson’s car. (Id. at 86-87).
Rather, he was still standing by the breezeway with the others and did not have a line of site
to Mr. Anderson. (Id. at 88). When the shots were fired, Firefighter Simpson, who was
underneath the breezeway, saw [Redacted] right then hit the ground. [Redacted] never drew
his weapon and never indicated in his radio transmission that an officer was under fire
because he was not being fired upon. (Id. at 89-90). The defense pointed to the evidence
“consistent with [Officer [Redacted]] being by the tunnel [i.e., breezeway],” (id. at 90), and
argued that Officer [Redacted] was not where he said he was when the shots were fired. As to
bias and motive, the defense argued that [Redacted] did not tell the truth because: “Maybe
he’s a little embarrassed that—remember his reaction to gunfire was to run into the
courtyard. . . . Another possibility is that maybe firefighter Simpson yelling at him caused
him a little concern about what was going to be looked into later, or maybe it’s just pride and
he wants to believe he was where he was.” (Id. at 93).

47
believed as the government noted his experience in the first lines of both
opening and closing. See Tr. 9/9/15 at 4 (“Shots fired. Get down. Get down.
Those were the panicked words of a 20-year veteran of the Metropolitan
Police Department.”); Tr. 9/16/14 at 50 (after starting closing argument by
playing Officer [Redacted]’s radio call, arguing to the jury, “The frantic
words of Officer Stephen [Redacted], a 22-year veteran with the
Metropolitan Police Department”).50 But had the jury heard the evidence of
[Redacted]’s history of sustained findings for dereliction of duty, his actions
that led to those findings, and his status as again pending investigation, it
would have had concrete evidence of [Redacted]’s vulnerable status as a
police officer and potentially viewed his years of experience and the defense
bias theory in a wholly different light. One whose status and livelihood is
already endangered is much more motivated to lie to protect himself than
one who is not so vulnerable.
The harm from the withheld information here is analogous to the harm
the defendant suffered in Davis v. Alaska, where the Supreme Court reversed
due to a trial court ruling excluding evidence of bias that would have showed
the extent of the witness’s motivation to embellish due to his pre-existing
vulnerable status. The trial judge disallowed questioning of the
government’s key witness, Green, about his juvenile probationary status at
the time he identified the defendant to police as a person involved in a
burglary. Davis, 415 U.S. at 317. The Court held that although the defense
was permitted to argue that Green was motivated to point the finger at Davis
in order to shift blame from himself, id. at 317, evidence of Green’s

50
At the time of trial, Officer [Redacted] had been a member of MPD for over twenty-
one years, joining the force on April 17, 1994.

48
probationary status would have greatly enhanced that theory and thus could
not be excluded. Such information would have revealed to the jury Green’s
“possible biases, prejudices, or ulterior motives” affecting his identification
of the defendant. Id. at 316.
It was immaterial that the defense was permitted to cross-examine
Green at trial for bias in a more general manner by pointing to his potential
fear of police suspicion. Id. at 318. Rather, “it seem[ed] clear” to the Court
that to make the inquiry into Green’s biases “effective, defense counsel
should have been permitted to expose to the jury the facts from which jurors,
as the sole triers of fact and credibility, could appropriately draw inferences
relating to the reliability of the witness.” Id. Here, as in Davis, while the
defense was permitted to argue that the key witness was motivated to
embellish to shift attention from his own misconduct, that bias theory was
hobbled by exclusion of evidence that could have made that theory more
powerful and more concrete to the jury—evidence that the witness was in a
vulnerable status greatly enhancing his motivations due to fear of “possible
jeopardy” to what he valued.
Similarly, the Court of Appeals in Coles v. United States, 36 A.3d 352
(D.C. 2012), found reversible error when a defendant was prohibited from
referencing concrete evidence exposing a key witness’s bias that would have
vividly illustrated the defense bias theory already presented at trial. Id. at
354. There, the defense argued at trial that three police officers had colluded
together to blame the defendant for a bizarre shooting where a gun went off
and passed through an officer’s leg before lodging in the defendant’s thigh,

49
when in fact it was the police officers who were responsible for the shooting
but “colluded amongst themselves to cover [it] up.” Id.
To support the bias/collusion theory already presented at trial, the
defense sought to question the police officer witness about “striking
similarities” between his report and the reports filed by the other two
officers, but the judge disallowed mention of that fact. Id. at 355, 358. The
Court, reversed, because “bias or motive to lie may be a crucial component
in the jury’s assessment of the credibility of a witness” and to make a cross-
examination based upon witness “bias effective, . . . defense counsel must be
permitted to expose to the jury the facts from which jurors . . . could
appropriately draw inferences relating to the reliability of the witness.” Id. at
357 (quotation omitted). Although the defense was allowed to pursue other
lines of cross-examination regarding the officer’s credibility, the court erred
in prohibiting the defense from asking about the similarities in the police
reports as that would have been a “concrete, as opposed to speculative, fact
indicative” of the officer’s bias and “arguably the most powerful evidence of
collusion among the officers.” Id. at 359.
Just as in Davis and Coles, where the jury was prohibited from being
able to accurately assess a key witness’s credibility due to exclusion of
powerful particulars that would have enhanced a defense bias theory more
weakly presented at trial, here, too, the jury was left unable to accurately
assess [Redacted]’s credibility as key information relating to his possible
bias, corruption, and motive to curry favor was kept from it. [Redacted]’s
history of sustained findings raised the stakes for him if he was found not to

50
have responded appropriately in this case, and it would have shown his
motive to curry favor at the time of both arrest and trial.51
Because Officer [Redacted] was the government’s key witness as the
first responding officer and the complainant for the most serious charges, the
defense’s need to “present evidence of [his] bias [was] particularly
important.” Hollingsworth v. United States, 531 A.2d 973, 979 (D.C. 1987)
(citation omitted); see also Cunningham v. United States, 974 A.2d 240, 245
(D.C. 2009) (stating that “cross-examination seeking to ferret out bias takes
on enhanced significance where the credibility of the key government
witness is in issue”) (citation omitted). The government’s suppression of this
critical evidence effectively prevented the defense from doing so and denied
the defense a fair chance with complete information to investigate and alert
the jury to significant reasons bearing on Officer [Redacted]’s credibility.
See Ford v. United States, 549 A.2d 1124, 1126 (D.C. 1988) (finding “error
of constitutional dimension” when the defense is prevented from asking
questions indicative of bias “from which a jury could reasonably draw
adverse inferences of reliability”). Had it not been for such a denial, and if
the government complied with its Brady obligations, there is a reasonable

51
For instance, under MPD’s Personnel Performance Management System (PPMS) and
the Supervisory Support Program (SSP), MPD officers accumulate points for each instance
of misconduct. When an officer hits a certain points-threshold—typically around 100
points—within an 18-month period, supervisory intervention is required and the officer is
placed under an intervention plan. See generally MPD, Standard Operating Procedures for
PPMS and SSP, available at https://go.mpdconline.com/GO/SOP_PPMS_and_SSP.pdf (last
visited Dec. 14, 2017). An intervention plan for the officer is created as a result, which may
include additional training or reassignment, and the officer is put under strict monitoring. Id.
at 10, 14, 16. An officer who has accumulated significant points, such that he is approaching
or has crossed a threshold, is subject to much higher disciplinary stakes than an officer with
few or no points. An officer at the PPMS threshold knows that any additional misconduct
will result in additional points and could have a very immediate impact on the officer’s work
assignments, performance evaluations, and prospects for promotion.

51
probability of a different outcome in this case. Cf. Vaughn, 93 A.3d at 1263;
Giglio, 405 U.S. at 154 (“When the reliability of a given witness may well
be determinative of guilt or innocence, nondisclosure of evidence affecting
credibility falls within [the Brady] rule.”).
C. Dismissal is required.
Considering the severe prejudice Mr. Anderson has suffered due to
the government’s constitutional failure, the patently inexcusable nature of
the constitutional violation, and that it took years since trial for the
government to disclose what it possessed all along, dismissal of the
indictment is the only appropriate remedy. The government’s failings here
did not stem from an isolated situation but from a systemic-wide lack of
proper attention to its constitutionally required disclosure obligations.
Dismissal for violations amounting to willful or reckless misconduct
is in accord with the Superior Court’s “supervisory power to dismiss . . . as
a sanction for government misconduct.” Vaughn, 93 A.3d at 1267 n.35
(quoting Sanders v. United States, 550 A.2d 343, 344-46 (D.C. 1988).
Indeed, the Court of Appeals has long held that “the trial judge enjoys a
broad range of possible sanctions [for both Rule 16 violations as well as
prosecutorial misconduct], with the sole limitation being that the sanction
be just under the circumstances.” Odom v. United States, 930 A.2d 157,
159 (D.C. 2007) (quoting Allen v. United States, 649 A.2d 548, 552 (D.C.
1994)). The federal circuits are in agreement with the Court of Appeals. In
Virgin Islands v. Fahie, 419 F.3d 249, 245-55 (3d Cir. 2005), the Third
Circuit concluded that in cases of government misconduct under Brady,
dismissal may be appropriate “because those cases call for penalties which
are not only corrective but are also highly deterrent.” Other federal circuits

52
have also held that dismissal as a deterrent measure is among the sanctions
available to a trial court faced with reckless government misconduct. See,
e.g., United States v. Chapman, 524 F.3d 1073, 1085 (9th Cir. 2008)
(affirming dismissal of indictment with prejudice and holding that willful
misconduct includes “reckless disregard for the prosecution’s constitutional
obligations”); United States v. Kojayan, 8 F.3d 1315, 1320 (9th Cir. 1993).
Factors relevant to a willfulness or recklessness inquiry include: 1)
timing of Brady disclosures, Chapman, 524 F.3d. at 1085; 2) representations
by the government of compliance with discovery obligations, id. (“The
AUSA repeatedly represented to the court that he had fully complied with
Brady and Giglio, when he knew full well that he could not verify these
claims.”); and, 3) failure to provide the court and defense with complete
information, even after a verdict, Vaughn, 93 A.3d at 1237 (“The
government not only failed to give the defense (or the court) accurate or
complete information, it then stood by at trial and allowed the defense’s
ignorance and the court’s erroneous understanding of the pertinent facts to
persist.”). In Chapman, the Ninth Circuit stated:

In this case, the failure to produce documents . . ., along with the

affirmative misrepresentations to the court of full compliance, support
the district court’s finding of ‘flagrant’ prosecutorial misconduct even
if the documents themselves were not intentionally withheld from the
defense. We note as particularly relevant the fact that the government
received several indications, both before and during trial, that there
were problems with its discovery production and yet it did nothing to
ensure it had provided full disclosure until the trial court insisted it
produce verification of such after numerous complaints from the
defense.

524 F.3d. at 1085. There are parallels to Mr. Anderson’s case.

53
 First, the Court of Appeals has repeatedly made clear that disclosures
are required “well before the scheduled trial date.” Zanders, 999 A.2d at
164; see also Perez v. United States, 968 A.2d 39, 66 (D.C. 2009) (Brady
requires “timely, pretrial disclosure”), and that the timing of Brady
disclosures cannot be achieved through a “strategy of delay and conquer.”
Miller, 14 A.3d at 1111. Here, the government’s strategy can only be
deemed one of conquer through inordinate delay. It disclosed nothing prior
to trial, waited until [Redacted] was mid-testimony to disclose what it had
known before trial began, waited eighteen months to make any correction to
the admittedly “incomplete” and “incorrect” information the supervising
prosecutor provided to this Court, and waited two years from trial to disclose
the needed source material. As all of this material was in the government’s
possession weeks, months, and years prior to trial, the delay here was
inexcusable. See Farley v. United States, 694 A.2d 887, 890 (D.C. 1997)
(“The government is responsible for knowing what the police know.”);
Robinson v. United States, 825 A.2d 318, 324 (D.C. 2003) (“there is a duty
to search branches of government closely aligned with the prosecution.”).52
Second, at every step before this Court the government has failed to
present complete information. See Kojayan, 8 F.3d at 1316 (vacating
conviction in part due to the government’s repeated attempts to “minimiz[e]
[its] conduct and not fully accept[] responsibility”). Had the government

52
As the Court of Appeals stated, the government does not have to disclose source
documents in every case for every incident. But based on the unreliability of summaries (that
are frequently, if not always, written in the initial moments of an investigation), the Court
warned the government that it “withholds source documents at its peril.” Vaughn, 93 A.3d at
1259. Here, the government chose not to disclose any source documents during trial or at the
March 4, 2016 hearing, but appeared to mainly rely on reading summaries to the defense.
That mistake is primarily why the case is in its current predicament.

54
been meeting its Brady obligations, as soon as it learned of the pending
investigation against Officer [Redacted] it should have informed the defense.
By its own admissions, the prosecution knew of the investigation no later
than September 8, 2015 (even though the materials would have been in the
government’s collective knowledge weeks before that). Even still, the
government delayed telling the defense. It did not send an immediate email
to defense counsel, or seek counsel out prior to the start of court on
September 9, 2015. The government waited for trial to get underway, for
instructions to be given, opening statements made, and Officer [Redacted] to
be through a substantial amount of his direct testimony before mentioning
for the very first time that the key witness and complainant was in the midst
of an MPD investigation. See Vaughn, 93 A.2d at 1257 (Brady’s
requirements cannot be met through “last-minute” disclosures). That same
pattern of delay before disclosing has continued throughout this case. See
United States v. Quinn, 537 F.Supp.2d 99, 119-20 (D.D.C. 2008) (courts
“simply ‘do not approve of any government agent avoiding forthright
disclosure of relevant information’ and the “withholding of [] relevant
information plainly [can] change[] the dynamic of [a] trial” at the
defendant’s expense”) (quoting United States v. Almendares, 397 F.3d 653,
664 (8th Cir. 2005)).53
53
When the government disclosed the information to this Court and not directly to the
defense during [Redacted]’s testimony, it prompted this Court to remind the government that
“[i]f there are things you should be disclosing, you . . . don’t wait and tell me after the trial
has started. They’re the ones who need the disclosure, not me.” (Tr. 9/9/15 at 39-40). The
government did not heed this Court’s advice. Despite defense requests, the government
waited until this Court asked it a question about sustained findings to first mention
[Redacted]’s history. And even when at some point the government learned it had provided
“incomplete” and “incorrect” information to this Court, it did not immediately contact the
defense to make a full disclosure as it should have. See Barnes v. United States, 760 A.2d
556, 562 (D.C. 2000) (stating that if the government were in possession of evidence that its

55
 Third, despite having all of the above discussed material in its
possession prior to trial, the government always incorrectly insisted it had
complied with its Brady obligations. It did so before this Court during trial,
in its opposition to the defense’s post-trial motion to compel, in its
statements to this Court at the March 4, 2016 hearing, and even in its
suggestion of remand filed to the Court of Appeals. See Chapman, 524 F.3d
at 1085 (“The AUSA repeatedly represented to the court that he had fully
complied with Brady and Giglio, when he knew full well that he could not
verify these claims.”).
Fourth, the government’s actions in this case are simply the latest
example that it lacks the proper systems in place to be able to reliably and
consistently meet its Brady obligations.54 The government has tried to blame
the years delay in disclosing the information and correcting the record on
some unexplained update to PPMS that occurred since Mr. Anderson’s trial.
Whether that is the actual cause or not is immaterial because even if an out-
of-date PPMS program was the cause of all the problems that led to this
case’s current posture, it does not and cannot justify the violations here.
Quite frankly, it is an admission by the government that its primary system
for tracking and disclosing Brady related to the police officers it relies on

informant had identified someone other than the defendant as the perpetrator, the Court
“would expect it to disclose the information to the defense—now [on appeal] as then [in the
trial court].”); see also Smith v. Roberts, 115 F.3d 818, 820 (10th Cir. 1997) (“We also agree,
and the State concedes, that the duty to disclose is ongoing and extends to all stages of the
judicial process.”). Rather, the government filed a motion and waited another two months to
disclose source documents for some (but not all) of the sustained findings against Officer
[Redacted] and three months to disclose [Redacted]’s Giglio forms.
54
Unfortunately, while the extraordinary nature of the violation in this particular instance
may well be unique, significant Brady violations are becoming all too common for this U.S.
Attorney’s Office, as even the Court of Appeals has noted the institutional nature of the
problem. See Perez v. United States, 968 A.2d 39, 65 (D.C. 2009) (“We are repeatedly
confronted with complaints of tardy disclosure of exculpatory material[.]”).

56
daily in court was not sufficient for it to meet and discharge its Brady
obligations.
The Supreme Court established the Brady doctrine in 1963. If it was
not clear then, in 1995 the Supreme Court firmly set out that the prosecution
has the obligation to put in place sufficient “procedures and regulations” to
permit it to “discharge the government’s Brady obligations.” Kyles, 93 A.3d
at 1258. And a year before Mr. Anderson’s trial, the Court of Appeals said
that, especially for information relating to “an important witness so closely
tied to the investigation,” the government must have “the systems in place to
ensure” that it can meet its Brady obligation. Vaughn, 93 A.3d at 1258.
Here, regardless of the exact cause, it has been shown that even in 2015 at
the time of trial the government still had not put in place sufficient systems
to properly identify, track, and disclose Brady material for its key
witnesses.55

55
To any extent the government attempts to excuse its failures by citing difficulties in
obtaining information from MPD, such difficulties (valid or not) do not justify a failure to
disclose evidence in the government’s possession. The imputed knowledge doctrine applies
even if the prosecution faces bureaucratic difficulties in obtaining the information. The idea
that the government cannot fail to turn over an “easily turned rock,” United States v. Brooks,
966 F.2d 1500, 1503 (D.C. Cir. 1992), is a reference to the fact that a government agency or
part of the prosecution team possessed the information; the doctrine does not depend on the
competence, ability, or willingness of one agency to share the information with the
prosecution. As the Seventh Circuit noted in Crivens v. Roth, 172 F.3d 991, 997-98 (7th Cir.
1991): “We agreed with other circuits that have explained that the availability of information
is not measured in terms of whether the information is easy or difficult to obtain but by
whether the information is in the possession of some arm of the state.” (quotations omitted);
see also United States v. Osario, 929 F.2d 753, 762 (1st Cir. 1991) (“[R]egardless of whether
the prosecutor is able to frame and enforce directives to the investigative agencies to respond
candidly and fully to disclose [information], responsibility for failure to meet disclosure
obligations will be assessed by the courts against the prosecutor and his office.”); United
States v. Perdomo, 929 F.2d 967, 971 (3d Cir. 1991); United States v. Safavian, 233 F.R.D.
12, 15 (D.D.C. 2005).

57
 And finally, besides the late timing and the inadequate excuses,
dismissal here is required due to the volume of material that was not
disclosed, especially when contrasted with the lengths the defense has had to
go just to get the information years after trial for the key witness at trial.
Every single piece of evidence discussed in this motion was in the
government possession prior to trial, with the lone exception of some
documents in the pending investigation which were all in the government’s
possession within a month after the jury’s verdict. Nevertheless, the
government did not disclose any of it in time for the defense to use it in
preparation for trial. In light of the extensive litigation and discussion both
during and after trial about the government’s Brady obligations in relation to
Officer [Redacted] specifically, there should have been no reason for it to
take two years since trial to disclose what was in the government’s
possession the entire time, placing the defense in the position of reasonably
wondering what else might have been available at the time it prepared for
and went to trial. See Kojayan, 8 F.3d at 1323 (“Quite aside from the major
and minor trespasses and evasions catalogued above, we must ask the
broader question: How did all this come about?”).
Back on September 11, 2015, with trial underway, this Court
reminded the government of its obligations: “You at least need to take
responsibility for knowing what there is well enough to make the disclosures
you have to make.” (Tr. 9/11/15 at 16-17). The government, however, failed
to do so, and, due to the time it took for the needed disclosures to begin to be
made, the extent of the government’s failing may never be fully known.
Accordingly, dismissal is the only appropriate sanction that can protect Mr.

58
Anderson’s constitutional rights and reasonably ensure this same situation
does not continue to occur. See Virgin Islands v. Fahie, 419 F.3d 249, 245-
55 (3d Cir. 2005) (concluding that in certain situations of government
misconduct, dismissal may be appropriate “because those cases call for
penalties which are not only corrective but are also highly deterrent”);
Chapman, 524 F.3d at 1085 (affirming dismissal of indictment with
prejudice and holding that willful misconduct includes “reckless disregard
for the prosecution’s constitutional obligations”). Here, because the
government “[b]etray[ed] Brady” and “g[a]ve short shift to Giglio,” it must
now “lose [its] ill-gotten conviction.” Vaughn, 93 A.3d at 1266 (internal
quotation omitted).56
WHEREFORE, for the reasons contained herein, and any others that
may appear to the Court, Mr. Anderson requests that the Court grant this
motion to dismiss.57

Respectfully submitted,

/s/ Benjamin Miller

Benjamin Miller, Bar. No. 503001

56
Additionally, in its February, 2016 post-trial Motion to Compel, the defense asked the
government to provide the steps it took to meet its Brady obligations, as well as what it knew
and when about the investigation pending during trial. In the defense’s October 20, 2017
discovery request filed with this Court and sent to the government, it asked for the steps the
government took to correct the information provided on March 4, 2016, when those steps
were taken, when it became known that “incomplete” and “incorrect” information had been
provided to this Court, and how the information learned after the update to PPMS differed
from what the government knew prior to the update. The government has refused to provide
those answers and now, at minimum, it should be required to provide both defense and this
Court answers to what steps it took and when—prior to, during, and since trial—to meet its
disclosure obligations.
57
If not dismissal, Mr. Anderson is entitled to a new trial due to the government’s failure
to disclose substantial amounts of evidence—that must be viewed cumulatively—that would
have been both favorable and material and given the jury a reason to question Officer
[Redacted]’s credibility. See, e.g., Miller v. United States, 14 A.3d 1094, 1097 (D.C. 2011).

59
 Monica V. Douglas, Bar. No.
975842
Matthew Davies, Bar No. 484780
Counsel for Mr. Brian Anderson
Public Defender Service
633 Indiana Avenue, N.W.
Washington, D.C. 20004
Phone: (202) 824-2374
(202) 824-2048
(202) 824-2709
Email: bmiller@pdsdc.org
mdouglas@pdsdc.org
mdavies@pdsdc.org

60
 CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Motion was delivered via

efiling to the United States Attorney’s Office for the District of Columbia,

on December 15, 2017.

/s/ Benjamin Miller

Benjamin Miller

61