Government Witness Perjury, Government Narcotics Expert Admits Perjury, Offering Post Conviction Possibilities In Case Where He Testified

On February 10, 2000, expert Government narcotics witness Johnny St. Valentine Brown made a startling admission in his guilty plea allocution in the U.S. District Court for the District of Columbia: he had repeatedly lied for years while under oath regarding his expert credentials. Typically, in the course of determining that the quantity of drugs was sufficient for distribution, not personal use, providing values for drugs, explaining the chain of distribution and how to make crack, drug lingo, and providing profiles of drug dealers, former D.C. Detective Brown would tell juries that he held bachelor's, master's, and doctorate degrees from Howard University and that he was a "board certified pharmacist and what I do is receive, maintain, compound, dispense narcotic substances per prescription." He would even offer these qualifications in cases where defense counsel stipulated to his credentials.

Valentine Brown joined the Metropolitan Police Department in 1970 and retired as an employee in 1995. After retirement, he served as a consultant to the Police Department. Both before and after his retirement, he testified on many occasions as an expert narcotics witness in the District, Maryland, and elsewhere.

Investigation in a civil case, Butera v. District of Columbia, Civ. No. 98-CV-2794, in which Valentine Brown testified in a deposition on June 22, 1999, led to his demise as an expert witness. Valentine Brown was offered as an expert witness for the District of Columbia Corporate Counsel in defending a case involving the death of a Government cooperator in a botched drug buy/surveillance. Maryland investigator Jim Bradley was retained by the plaintiff and discovered that Brown was not a licensed pharmacist. Furthermore, Brown's related claim that he had bachelor's, master's and doctorate degrees from Howard University was also proven false. New of Brown's perjury in that civil case spread quickly and eventually a Government investigation was launched in the District.

The investigation led to a criminal prosecution of Brown for perjury, and to a guilty plea on February 10, 2000. On that date, Brown entered a plea of guilty to multiple perjury counts in the United State District Court for the District of Columbia for making willfully false statements about his expert credentials while under oath.

Should counsel decide to pursue a new trial in a case in which St. Valentine Brown testified, some points have clearly been established. First, there can be no dispute the Valentine Brown perjured himself in numerous cases. A Government pleading filed in the United States District Court for the District of Columbia on November 5, 1999, admitted that Brown was not a Board certified pharmacist and had no degree of any type from Howard University. Second, two late 1999 decisions in the United States District Court for the District of Columbia also found that Valentine Brown was a perjurer. See United States v. Jones, 1999 U.S. Dist. LEXIS 20758;United States v. Williams, 77 F. Supp. 2d 109 (D.D.C. 1999). Third, in his plea allocution before Judge Kennedy on February 10, in the District, Valentine Brown admitted that he had no degree or license in pharmacology, and had not received a degree from Howard University.

Second, unlike so much else in the Fourth Circuit for defense counsel, relatively speaking the Fourth Circuit's test for a new trial based on discovery of trial perjury by a Government agent is not onerous. The Fourth Circuit follows the well established Larrison rule, see United States v. Larrison, 24 F.2d 82, 87-88 (7 th Cir. 1928), governing motions for a new trial under Federal Rule of Criminal Procedure 33. Larrison and its Fourth Circuit progeny requires a showing that:

1. The testimony by the witness was materially false.

2. Without the false testimony the jury might have reached a different result.

3. The Defendant did not know of the falsity until after trial.

See United States v. Wallace, 528 F.2d 863 (4 th Cir. 1976)(relying on Larrison and remanding to District Court to apply Larrison analysis); see also United States v. Cooke, 1998 U.S. App. LEXIS 7831 (4th Cir. 1998 unpublished) (applying Wallace and Larrison factors but holding that defendant did not prove perjury by witness), cert. denied, 528 U.S. 900 (1998); United States v. Burkes, 1993 U.S. App. LEXIS 3325 (4 th Cir. 1993 unpublished) (same analysis and holding as Cooke).

In addition, the law is also clear (and helpful!) in the Fourth Circuit that the knowledge of Government witnesses such as police officers is attributed to the prosecution even where the individual prosecutors have no personal knowledge that their witness is lying on the stand on a material issue. See Boyd v. French, 147 F.3d 319, 329 (4 th Cir. 1998), cert. denied, 119 S.Ct. 1050 (1999); see also Strickler v. Green, 527 U.S. 263, 301 ( Brady rule applies to evidence "known only to police investigators and not to the prosecutor," quoting from Kyles v. Whitley, 514 U.S. 419, 438 (1995)) (1999).

Thus, the test in these cases will not be whether there is a reasonable probability that the jury's verdict would have been different without the perjury (the "would test"), or whether the non-perjurious testimony at trial on its own would have been sufficient to find the defendant guilty: The issue is whether the result could have been different had jury known the truth about Valentine Brown's false testimony in the case and the many cases preceding it. It is also irrelevant that the perjury relates to Valentine Brown's credibility. See Kelly, 35 F. 3d at 933-934.

Typically, the Government will contend that a different test applies and that defense counsel must show that "the newly discovered evidence would probably produce an acquittal." See United States v. Custis, 988 F. 2d 1355, 1359 (4th Cir. 1993)(listing five part new trial test), sentence aff'd on other grounds, 511 U.S. 485 (1994). Probably, it will also contend based on Custis that "new evidence going only to the credibility of a witness does not generally warrant the granting of a new trial." Id. However,Custis did not involve newly discovered evidence that the witness in question lied on a material matter at issue in that case. In Custis, the defendant sought a new trial based on evidence that a Government witness lied in a different case. The Fourth Circuit cases such as Wallace, Cooke, and Burkes could not be clearer that where a Government witness is shown after trial to have committed perjury in a trial that a new trial in the case where the perjury occurred is required if disclosure of the perjury could have produced a different result.

Third, the key task for defense counsel will be showing that based on the facts in his or her case that Valentine Brown's testimony was important enough so that his perjury requires a new trial. This will be a fact specific exercise requiring careful attention to detail and the nuances of the case. The DC courts have already split as one court ordered a new trial. See United States v. Jones, supra. The Court held that "Brown's testimony filled in all the gaps of the government's case and was clearly material to the jury's determination." Id. However, Judge Hogan held otherwise in United States v. Williams, 77 F. Supp. 2d 109 (D.D.C. 1999).

Good luck with the motions and please keep your colleagues posted with news of any successes. Keep in mind that the Rule 33 provides that a motion for a new trial must be filed within two years of final judgment, although if appeals are filed the start of the two year period can be tolled beyond the date the judgment and commitment order is filed in the District Court. Furthermore, the perjury claim can also be filed as part of a Section 2255 petition, although the deadline for such claims is now only one year after final judgment.