United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 15, 2009 Decided January 15, 2010

No. 07-3071

UNITED STATES OF AMERICA,

APPELLEE

v.

SIROCCO D. JOHNSON, ALSO KNOWN AS ROCCO,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 03cr00488-01)

A. J. Kramer, Federal Public Defender, argued the cause

and filed the briefs for appellant.

Sarah T. Chasson, Assistant U.S. Attorney, argued the

cause for appellee. With her on the brief were Jeffrey A. Taylor,

U.S. Attorney at the time the brief was filed, and Roy W.

McLeese III and Chrisellen R. Kolb, Assistant U.S. Attorneys.

Before: HENDERSON and GARLAND, Circuit Judges, and

RANDOLPH, Senior Circuit Judge.
2

Opinion for the Court filed by Senior Circuit Judge

RANDOLPH.

RANDOLPH, Senior Circuit Judge: A jury convicted Sirocco

Johnson of possessing heroin and crack cocaine with the intent

of distributing both substances; and of using, carrying, or

possessing a firearm in connection with a drug offense. Each of

the charges stemmed from a search of a bedroom Johnson

occupied in a townhouse where his mother, stepfather and sister

lived. Johnson raises rather routine issues regarding the

sufficiency of the evidence, a jury instruction and an evidentiary

ruling. After discussing these issues we will deal with the

serious question in the case – whether the government failed to

disclose exculpatory evidence in violation of Brady v. Maryland,

373 U.S. 83 (1963).

I

At dawn on August 21, 2003, a dozen FBI agents executed

a search warrant at 1138 Wahler Place, S.E., Washington, D.C.

No one answered the agents’ knock on the townhouse door so

they broke it down, tossed in a “flash bang,” and entered. At

that moment, an agent stationed outside saw a white bundle fly

out of a window on the townhouse’s second floor. The entering

agents saw no one on the first floor or in the basement. On the

second floor, in one of the bedrooms, they discovered Johnson,

then twenty-three years old, shirtless, crouching next to the

window from which the bundle had been tossed. Johnson’s

twelve-year-old cousin was also in the room, lying on the floor

next to the bed. Johnson’s mother and stepfather were in the

second floor master bedroom.

Johnson’s bedroom was quite cluttered, with clothing and

other items strewn about the floor. Among the clutter, the

agents found a black Hugo Boss bag. Inside the bag was a
3

shoebox containing 520 grams of heroin. The bag also

contained a rubber glove and procaine, a diluting or “cutting”

agent. Near or in the bedroom closet, an agent found two

transparent baggies filled with a total of 73 grams of crack

cocaine. The agents also found mail, a temporary vehicle

registration, and other documents bearing Johnson’s name. The

agent stationed outside recovered the bundle, which turned out

to be a small bag of marijuana and a loaded nine-millimeter

handgun wrapped in a white t-shirt. 

The three-day jury trial took place in April 2005. The

government’s key witnesses were the FBI agents who

participated in the raid. The government also called an officer

who gave expert testimony that drug dealers commonly store

their inventory in “stash houses” owned by trusted friends or

relatives. Johnson’s only witness was his mother, Caroline

Williams, who admitted that the room containing the drugs

served as a bedroom for Johnson. (Her husband, Carlos

Williams, owned the townhouse.) She added that Johnson did

not always sleep in that room. Sometimes he stayed the night at

another house with the mother of his child. Mrs. Williams also

testified that others used the bedroom. Two of her nephews and

her brother-in-law played video games there, slept overnight,

and left their clothes there. From a photograph of the bedroom,

Mrs. Williams identified items of clothing belonging to these

men. During cross-examination, Mrs. Williams admitted that

she had been convicted of attempted possession of cocaine,

attempted distribution of cocaine, and, on two separate

occasions, felony larceny in Virginia. 

In closing argument, Johnson’s counsel stressed that

everyone who lived in Johnson’s home, as well as others, had

access to his bedroom and may have placed the drugs there. The

prosecutor offered two counter-theories – that the drugs were

Johnson’s or that he was stashing them for “another
4

organization.” The jury convicted Johnson of the heroin, crack,

and gun counts, but acquitted him of possession with intent to

distribute marijuana. 

While representing another client after Johnson’s

conviction, Johnson’s attorney happened upon an FBI wiretap

application indicating that the heroin seized from Johnson’s

bedroom actually belonged to a drug dealer named Cinquan

Blakney, Johnson’s cousin. The affidavit in support of the

wiretap, prepared by Special Agent Daniel Sparks, stated that

Sparks had been receiving information from confidential

informants about a gang-related drug distribution enterprise.

One of these informants told Sparks that he had discussed

Johnson’s arrest with Blakney. According to the informant,

Blakney said that the heroin seized from Johnson’s bedroom

belonged to Blakney and that Blakney’s mother had conveyed

to Johnson’s mother that Johnson “has to take his beef.” 

The affidavit containing these statements was dated

February 2004 – six months after Johnson’s arrest and a year

before his trial. When Johnson’s attorney brought this evidence

to the government’s attention, the government filed a letter

indicating that the same informant told a D.C. Metropolitan

Police Department detective that Blakney had stored a half

kilogram of heroin at 1138 Wahler Place, and that the seizure

there was a setback for Blakney.

Johnson moved for a new trial, arguing that the

government’s failure to disclose the information violated Brady

v. Maryland, 373 U.S. 83 (1963); that the district court

improperly instructed the jury; and that the court erred in

refusing to admit a particular document. He also moved for a

judgment of acquittal on the basis that the evidence was

insufficient to support his convictions. The court denied the

motions. 
5

As discussed in Part III of this opinion, further information

regarding Blakney surfaced in post-argument filings in this

court. 

II

Contrary to Johnson’s argument, the government presented

sufficient evidence for rational jurors to conclude beyond a

reasonable doubt that Johnson constructively possessed the

drugs and firearm. Johnson’s location and the location of the

drugs in his bedroom provided ample evidence for the jury to

conclude that Johnson had the ability to exercise knowing

“dominion and control” over the drugs. United States v. Byfield,

928 F.2d 1163, 1166 (D.C. Cir.1991). It is a fair inference that

a defendant exercises constructive possession over contraband

found in a room he personally occupies. See United States v.

Dykes, 406 F.3d 717, 721–22 (D.C. Cir. 2005); United States v.

Morris, 977 F.2d 617, 620 (D.C. Cir. 1992). Viewing the

evidence in the light most favorable to the government, see

Dykes, 406 F.3d at 721, we also believe a rational jury could

find that Johnson possessed the gun. Someone wrapped the gun

in a t-shirt and threw it out of the bedroom window as the agents

entered the townhouse. That someone, the jury could conclude,

was Johnson. He was crouching next to the same window and

was shirtless when the agents arrived seconds later. The only

other person in the immediate vicinity was a twelve-year boy,

who was across the room. Johnson’s possession of the gun was

also evidence that he was guilty of the drug charges. We have

recognized many times that “drugs and guns go together.”

United States v. Jenkins, 928 F.2d 1175, 1179 (D.C. Cir. 1991);

see United States v. McLendon, 378 F.3d 1109, 1113 & n. 4

(D.C. Cir. 2004). A suspect’s possession of a gun that is in

close proximity to drugs is strong evidence of his possession of

the drugs. See, e.g., United States v. Moore, 104 F.3d 377, 381

(D.C. Cir. 1997); Jenkins, 928 F.2d at 1180.
6

Johnson also complains about a portion of the district

court’s instructions on the gun charge. At one point the court

told the jury that a “gun may be deemed to be used in relation to

[a drug trafficking] offense when it is present in order to protect

contraband.” Section 924(c)(1) sets mandatory minimum

sentences for “any person who, during and in relation to any . . .

drug trafficking crime . . . uses or carries a firearm, or who, in

furtherance of any such crime, possesses a firearm.” 18 U.S.C.

§ 924(c)(1). Johnson argues, and the government agrees, that

the quoted portion of the instruction was wrong in two respects.

First, the jury could have taken the court’s statement to mean

that so long as a gun was present to protect the drugs, the

defendant was guilty of violating § 924(c)(1). That of course is

not correct. The defendant must be linked to the gun; under the

statute, it is the defendant who must use the gun or carry it or

possess it. The existence of a gun in the defendant’s presence is

not enough. Second, for a defendant to “use” a gun within the

meaning of § 924(c)(1), he must “actively employ” it in a way

that goes beyond merely possessing it. See Bailey v. United

States, 516 U.S. 137, 150 (1995); United States v. Wheeler, 525

F.3d 1254, 1256 (D.C. Cir. 2008). Yet the instruction said that

the presence of the gun alone suffices to make out “use” in

violation of the statute.

Our review is for plain error because Johnson did not object

to this portion of the instruction. See FED. R. CRIM. P. 30(d) &

52(b). An error that does not affect a defendant’s “substantial

rights” will not lead to a reversal of his conviction. See FED. R.

CRIM. P. 52(a) & (b); Wheeler, 525 F.3d at 1256; United States

v. Watson, 409 F.3d 458, 465 (D.C. Cir. 2005). If the defendant

objected to an erroneous instruction, it is the government’s

burden to show that the error was harmless. If the defendant did

not object, it is the defendant’s burden to show not only that the

error was obvious, but also that it prejudiced him. See United
7

States v. Olano, 507 U.S. 725, 734 (1993); United States v.

Andrews, 532 F.3d 900, 912 (D.C. Cir. 2008).

We shall assume that the error here was a plain error. But

we cannot see how the error could have had any effect. It is

understandable that Johnson did not object to the instruction.

Whether he “used” the gun was a non-issue. No one would

suppose that tossing the gun out of the window amounted to

using it to protect the drugs. Yet that is the only evidence of

Johnson’s active “use” of the gun. This is why all the focus was

on whether Johnson possessed the gun to further drug crimes.

The prosecutor’s closing argument, which helps place the matter

in context, see United States v. Chan Chun-Yin, 958 F.2d 440,

444 (D.C. Cir. 1992), was limited to convincing the jury that

Johnson possessed the gun and “had that gun to protect the

drugs that were in that bedroom.” See United States v. Wahl,

290 F.3d 370, 375–77 (D.C. Cir. 2002). The prosecutor never

argued that Johnson had actively employed the gun and there

was no evidence that he had. Nor did the prosecutor at any point

suggest to the jury that it had the option of convicting Johnson

merely because a gun was present in the bedroom, or because

someone else may have used or possessed it. In light of the

overwhelming evidence on the subject, the jury must have found

that Johnson possessed the gun. See Johnson v. United States,

520 U.S. 461, 470 (1997); Neder v. United States, 527 U.S. 1, 9

(1999). Both sides agree that the court correctly instructed the

jury with respect to the § 924(c)(1) crime of possessing a

firearm in furtherance of a drug offense. The mistake in the gun

instruction therefore did not entitle Johnson to a reversal of his

conviction for violating § 924(c)(1).

Johnson’s next argument is that the district court improperly

excluded an item of evidence. At trial, FBI Agent James Manzi

testified that he was the seizing agent during the search. As

such, he had the duty of listing the seized drugs and other items
8

on an inventory form. Agent Manzi further testified that on the

form he named Johnson’s stepfather, Carlos Williams, as the

person from whom the items were seized in this case. Manzi

explained that by the time he filled out the form the agents had

removed Johnson from the premises and that FBI practice in

these circumstances was to have the owner of the premises sign

the form. Agent Manzi said that Williams, the owner of the

townhouse, refused to sign the form. Johnson asked the court to

admit the inventory form pursuant to the business records

exception to the hearsay rule. The court denied his motion.

During deliberations, the jury sent two notes to the judge

requesting the form. The court replied that the form had not

been admitted into evidence. 

We shall assume arguendo that the court erred in excluding

the form. Even so the error was harmless. See Kotteakos v.

United States, 328 U.S. 750, 776 (1946); United States v.

Coumaris, 399 F.3d 343, 349 (D.C. Cir. 2005). Agent Manzi’s

testimony accurately conveyed to the jury what he had written

on the form. Johnson’s counsel used the form to mount an

argument that the drugs seized from the bedroom really

belonged to Carlos Williams, an argument the jury would have

been in no better position to evaluate had it viewed the form

rather than learned of its contents through testimony. See

Coumaris, 399 F.3d at 350.

III

This brings us to the question whether the government

violated its duty under Brady v. Maryland, 373 U.S. 83, 87

(1963), to disclose evidence favorable to the accused that is

material to either guilt or punishment. Evidence is “material”

only if “‘there is a reasonable probability that, had the evidence

been disclosed to the defense, the result of the proceeding would

have been different.’” Kyles v. Whitley, 514 U.S. 419, 433–34
9

(1995) (quoting United States v. Bagley, 473 U.S. 667, 682

(1985) (opinion of Blackmun, J.)). A “probability” reaches the

level of “reasonable” when it is high enough to “undermine

confidence in the verdict.” Id. at 435; see United States v.

Bowie, 198 F.3d 905, 909 (D.C. Cir. 1999). The court does not

have to be convinced that it is “more likely than not that the

defendant would have been acquitted had the evidence been

disclosed.” Bowie, 198 F.3d at 909 (citing Kyles, 514 U.S. at

434).

Two additional aspects of the analysis deserve mention.

The first is that the Brady factors must be assessed count by

count. A Brady violation with respect to the defendant’s

conviction on one count does not necessarily affect his

conviction on any other count. See United States v. Oruche, 484

F.3d 590, 597 (D.C. Cir. 2007); United States v. Lloyd, 71 F.3d

408 (D.C. Cir. 1995). For each count, then, the court must

evaluate each of the three components of a Brady violation:

“The evidence at issue must be favorable to the accused, either

because it is exculpatory, or because it is impeaching; that

evidence must have been suppressed by the State, either

willfully or inadvertently; and prejudice must have ensued.”

Strickler v. Greene, 527 U.S. 263, 281–82 (1999). 

The second point is that there is some question in the

circuits about whether, in order to make out a Brady violation,

the undisclosed information must constitute admissible

evidence. See Ellsworth v. Warden, 333 F.3d 1, 5 (1st Cir.

2003) (en banc); cf. United States v. Derr, 990 F.2d 1330,

1335–36 (D.C. Cir. 1993). In Ellsworth, the First Circuit joined

several other circuits in holding that if the suppressed evidence,

although itself inadmissible, “would have led directly to material

admissible evidence” the defendant has a viable Brady claim.

333 F.3d at 5. In Johnson’s case, the district court indicated that

the undisclosed information would have been admissible.
10

1

 Circumstances have changed since Johnson’s first trial. Cf.

Ellsworth, 333 F.3d at 5–6. Blakney’s later plea of guilty, see infra p.

12, may have deprived him of a Fifth Amendment privilege not to

testify about his ownership of the heroin. 

United States v. Johnson, No. 03-488, 2007 WL 666566, at *8

n.4 (D.D.C. Feb. 28, 2007) (“Mem. Op.”). The government

does not argue against this view and we shall consider it

conceded.1

The undisclosed information, obtained from a government

informant, was that Johnson’s cousin, Cinquan Blakney, owned

the heroin seized from 1138 Wahler Place, that he – Blakney –

said he was storing his heroin there, and that Blakney’s mother

told Johnson’s mother that Johnson “has to take his beef.” At

Johnson’s trial, the prosecutor offered the jury two evidentiary

theories for finding him guilty of the drug charges. The first

was that the drugs were his – that he owned them. The second

was that he was storing the drugs for someone else with the

intent to return them to that person. 

The undisclosed evidence directly contradicted the

government’s first theory. As to the second theory, the district

court concluded that although the “evidence is helpful to

Johnson, it does not exculpate him.” By this the court meant

that Johnson was charged with possession, not ownership, and

that he could have been convicted of possession even if Blakney

owned the drugs. This is true, but not dispositive. Johnson’s

defense was that he did not own the drugs, that his relatives

regularly used the bedroom, that someone else must have placed

the drugs in storage there, and that he did not “exercise

dominion and control” over the drugs found there, Byfield, 928

F. 2d at 1166, even if he was near the drugs. See United States

v. Clark, 184 F.3d 858, 863 (D.C. Cir. 1999). The evidence

regarding his cousin Blakney’s ownership of the heroin
11

bolstered Johnson’s defense. The jury would not have had to

speculate about whether the heroin belonged to some other

unnamed person. “Disclosure of [Blakney’s] statements would

have resulted in a markedly weaker case for the prosecution and

a markedly stronger one for the defense.” Kyles, 514 U.S. at

441. The government’s failure to disclose evidence establishing

Blakney’s ownership of the heroin therefore undermines our

confidence in Johnson’s conviction for possessing the heroin

with intent to distribute it. Johnson was entitled to assert the

stronger defense and we are not confident every juror would

have rejected it. See Cone v. Bell, 129 S. Ct. 1769, 1773 (2009).

The government insists that Johnson must have known who

owned the heroin. Thus, there was no Brady violation because

the Due Process Clause does not require the government to

disclose evidence already known to the defense. See Derr, 990

F.2d at 1335. The district court rejected this argument and so do

we. As the court pointed out, there was “no proof that Johnson

had been put on notice that Blakney had provided an admission

to a government informant” or that Johnson otherwise knew of

Blakney’s culpability. Mem. Op. at *9.

The government also cites a court of appeals opinion stating

that undisclosed evidence was not material under the Brady

standard because it “[did] not directly contradict the state's

evidence.” Apanovitch v. Houk, 466 F.3d 460, 482 (6th Cir.

2006). We do not believe this accurately reflects the state of the

law. In a later case, the Supreme Court indicated that although

undisclosed evidence “did not directly contradict [the

government witness’s] trial testimony,” it could be considered

Brady material because “it does place it in a different light.” See

Cone, 129 S. Ct. at 1784 n.17. 

Although the Brady violation with respect to the heroin

charge entitles Johnson to a new trial on that count, it is not clear
12

2 Actually, the agents recovered 73 grams of crack cocaine

from 1138 Wahler Place on that date, not 150 grams.

what impact we should attribute to Blakney’s admission with

respect to the crack cocaine charge (and hence the gun charge).

Developments after oral argument may eliminate our need to

make that assessment. At the court’s request, the government

supplied a copy of the grand jury’s indictment of Blakney and

a plea agreement the government later reached with him. The

indictment, returned August 23, 2006, charged Blakney with

multiple drug and gun offenses. Five of the counts charged

heroin, crack cocaine and gun offenses occurring “[o]n or about

August 21, 2003,” the date of the search of the townhouse at

1138 Wahler Place. Blakney pled guilty to a conspiracy count,

which named eight co-conspirators, not including Johnson, and

others known and unknown to the grand jury. In connection

with the plea agreement, the government submitted a proffer in

which Blakney admitted that he “utilized a home at 1138 Wahler

Place, S.E. . . . to store heroin and crack cocaine,” and that in a

search of those premises on August 21, 2003, the FBI

“recovered illegal contraband belonging to Cinquan Blakney,

including approximately a 1⁄2 kilogram of heroin, and about 150

grams of crack cocaine.” These were the drugs Johnson was

convicted of possessing with intent to distribute.2

 (It may be

that Blakney also owned the gun recovered from outside 1138

Wahler Place; this is not entirely clear.) In a supplemental brief

filed in this court, the government reported that before

Blakney’s indictment another informant had revealed to the

government that Blakney owned the crack cocaine seized at

1138 Wahler Place. Whether this information came to the

government before Johnson’s trial cannot be determined from

the material before us. 

The government, while discounting the significance of

Blakney’s indictment and plea, and the information provided by
13

the second informant, suggests that we remand the case to the

district court to determine the impact of the newly disclosed

evidence. We agree with this disposition. Of course, if the

government had the information regarding Blakney’s ownership

of the crack cocaine at the time of Johnson’s trial, our analysis

regarding the heroin would apply and would lead to reversal of

Johnson’s crack cocaine conviction and the derivative gun

charge. If the district court finds that the government did not

possess the newly disclosed information at that time, the court

should proceed to determine whether a new trial on the crack

and firearm charges is nevertheless warranted. See Cone, 129

S. Ct. at 1786 & n.19. 

* * *

For these reasons, Johnson’s conviction on the heroin

charge is reversed and remanded for a new trial. With respect

to his convictions on the crack cocaine and gun charge, the case

is remanded for further proceedings consistent with this opinion.

So Ordered.