PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 07-4885

LAMONT CLINTON KING,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 08-4405

LAMONT CLINTON KING,

Defendant-Appellant. 

Appeals from the United States District Court

for the Eastern District of North Carolina, at New Bern.

David A. Faber, Senior District Judge.

(4:05-cr-00109-FA-1; 4:06-cr-00032-FA-1;

5:07-cr-00009-FA-1)

Argued: October 28, 2010

Decided: January 10, 2011

Before MOTZ, AGEE, and WYNN, Circuit Judges.
Affirmed in part and vacated and remanded in part by published opinion. Judge Motz wrote the opinion, in which Judge

Agee and Judge Wynn joined.

COUNSEL

ARGUED: Jorgelina E. Araneda, ARANEDA LAW FIRM,

Raleigh, North Carolina, for Appellant. Jennifer P. MayParker, OFFICE OF THE UNITED STATES ATTORNEY,

Raleigh, North Carolina, for Appellee. ON BRIEF: George

E. B. Holding, United States Attorney, Anne M. Hayes,

Assistant United States Attorney, OFFICE OF THE UNITED

STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

A jury convicted Lamont Clinton King of possession with

intent to distribute controlled substances, possession of a firearm in furtherance of a drug trafficking crime, and two counts

of being a felon in possession of a firearm. On appeal, King

challenges his convictions on several grounds. We vacate one

of his convictions and the accompanying sentence for being

a felon in possession and remand for further proceedings consistent with this opinion. We affirm in all other respects.

I.

King’s convictions stem from two separate incidents, one

occurring in Greenville, North Carolina and the other in Wilmington, North Carolina. We set forth the facts of each incident and then describe the pretrial and trial proceedings that

followed.

2 UNITED STATES v. KING
A.

1.

On March 19, 2004, Greenville police officers received

information that two African-American men planned to use a

gray Ford Explorer to transport a large amount of heroin from

the local bus station. The officers initiated surveillance of the

station and observed two African-American men drive away

from the station in a gray Ford Explorer. The police followed

the Explorer to a nearby strip mall, at which the men left the

car and entered a laundromat. Shortly thereafter, the men

returned with King and, after King placed a green gym bag in

the Explorer, the three men drove away together. When the

officers stopped and searched the Explorer, they found the

green gym bag, which contained 100 dosage units of heroin

packaged in ink-stamped wax paper. The police arrested King

and the other men.

Two detectives then returned to the laundromat from which

King had emerged and spoke with Nina Woods. After learning that Woods shared an apartment with King, the detectives

obtained her consent to search that apartment. Within its sole

bedroom, they found approximately 426 plastic bags of

cocaine and seven dosage units of heroin packaged in the

same ink-stamped wax paper as the heroin found in the green

gym bag that King had placed in the Explorer. They also

found cutting agent, one gram of marijuana packaged in a

plastic bag, and a firearm. In the bedroom closet, they found

two coffee grinders (which drug traffickers often use to mix

drugs and cutting agents), two boxes of bullets, and two more

firearms.

The police subsequently interviewed King, and he admitted

ownership of the cocaine, heroin, coffee grinders, cutting

agent, and firearms. King was charged with various violations

of state law, and after agreeing to cooperate with the police,

King secured his release on bail.

UNITED STATES v. KING 3
2.

Nine months later, on December 8, 2004, Shatiek Bilal

reported to Wilmington police officers that King had kidnapped and assaulted him. Bilal also told the officers that

King rented an apartment at which Bilal was living and that

King kept drugs and guns at the apartment and in a separate

storage unit. Based on Bilal’s information, the officers

obtained a search warrant to the apartment, in which both

King and Bilal lived, and to the storage unit, to which only

King had access.

After watching the apartment for approximately four hours,

the police saw King enter the apartment with a woman at

about 3:30 a.m. on December 9. The officers then executed

the search warrant. In a bedroom, in which King was lying

near the bed, they found a box containing 5.2 grams of crack

cocaine packed in green dime bags, 1.3 grams of heroin, and

14 bags of marijuana. Nearby they found digital scales, a heat

sealer, and a handgun. In the same room they also found

King’s identification card and state registration card bearing

the apartment’s address. In another bedroom, containing

Bilal’s personal effects, the officers found one green dime bag

of marijuana and a larger clear plastic bag containing similar

green bags. The officers found no contraband in the storage

unit.

When the officers interviewed King, he told the police that

he knew nothing about the kidnapping or beating of Bilal, and

he denied responsibility for the contraband in the apartment.

Nevertheless, King was charged with Bilal’s kidnapping and

assault, along with drug trafficking and firearm possession in

violation of state law. Neither federal nor state authorities

charged Bilal with any crime arising from evidence found in

the search.

B.

A year later, all state charges against King were dismissed

when a federal grand jury returned an indictment charging

4 UNITED STATES v. KING
him with six federal crimes. The first three pertain to the

Greenville incident: (1) possession with intent to distribute

cocaine, heroin, and marijuana in violation of 21 U.S.C.

§ 841(a)(1) (Count One); (2) possession of three firearms

after being convicted of a felony, in violation of 18 U.S.C.

§ 922(g)(1) (Count Two); and (3) using, carrying, and possessing a firearm, during and in relation to a drug trafficking

crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count

Three). The remaining three counts allege crimes assertedly

committed in Wilmington: (1) possession of crack cocaine,

heroin, and marijuana with intent to distribute, in violation of

21 U.S.C. § 841(a)(1) (Count Four); (2) possession of a firearm after being convicted of a felony, in violation of 18

U.S.C. § 922(g)(1) (Count Five); and (3) using, carrying, and

possessing a firearm, during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count

Six). The Government did not bring any federal charges

against King for his alleged assault and kidnapping of Bilal.

From the outset of the Wilmington proceedings, King

moved to compel disclosure of all information regarding Bilal

and his cooperation with the police. The district court found

King’s first pre-trial motion for this evidence moot "because

the Government already has been engaging in virtual open file

document discovery."

Months later, after this Court consolidated the various

charges pending against King and assigned the cases to

another district judge, King renewed his motion to compel

disclosure of all documents regarding Bilal, including Bilal’s

grand jury testimony.1 King also maintained that the Government had suppressed exculpatory information regarding

Bilal’s post-indictment trafficking charges and alleged perjury

in New York.

1Twenty months elapsed after King’s indictment prior to trial because

King escaped from custody once and changed counsel three times. 

UNITED STATES v. KING 5
With respect to the latter information, the Government

acknowledged that Bilal had told a New York prosecutor

something to the effect of "I don’t want to go to North Carolina. I wasn’t involved in anything down there." The Government lawyer contended, however, that she had kept King’s

prior defense counsel informed of Bilal’s activities in New

York.

As for Bilal’s grand jury testimony, the prosecutor admitted

that the Government possessed, but had refused to produce,

that testimony. The prosecutor maintained that the grand jury

testimony contained no exculpatory information. The district

court suggested that the Government "might want to" disclose

Bilal’s grand jury testimony "out of an abundance of precaution," but declined to order such disclosure because it

"[didn’t] know what’s in the testimony regarding Mr. Bilal

and we have to rely on the government’s good faith in these

situations." At no point did the court examine the grand jury

transcript or rule on the materiality of the information contained in it.

C.

At trial, the police officers testified to the evidence recovered in the Greenville and Wilmington searches, as outlined

above. King testified in his own defense.

With respect to the Greenville offenses, King admitted that

he owned the cocaine and heroin, that he had cut and packaged the cocaine for distribution the night before its seizure,

and that, although he knew he was a convicted felon, he

owned two of the three firearms.2 But King denied any link

between the firearms and drug distribution, claiming that he

had acquired the guns for protection after he had been burglarized.

2Although King told police when he was arrested that he owned all

three firearms, he testified at trial that he only owned two of them but

"took responsibility for" the third. 

6 UNITED STATES v. KING
As to the Wilmington charges, King denied responsibility

for the drugs and firearms found in the apartment he shared

with Bilal; he claimed that Bilal owned all of the contraband.

King testified that although he paid rent on the apartment in

which the police found him, only Bilal lived there permanently. King further maintained that, on the night in question,

he entered the apartment only to "have relations" with his

female companion. Although Bilal had testified before the

grand jury, he did not testify at trial.

The jury convicted King of all three Greenville crimes

(Counts One, Two, and Three) and one of the Wilmington

crimes (Count Five). The district court granted the Government’s motion to dismiss Counts Four and Six on which the

jury could not reach agreement. At sentencing, the court

applied an eight-level enhancement based on King’s alleged

kidnapping of Bilal and then imposed an aggregate sentence

of 408 months of imprisonment.

On appeal, King challenges two of his convictions growing

out of the Greenville search and the sole conviction arising

from the Wilmington search.

II.

With respect to the Greenville offenses, King contends that

the charges as to Counts One and Three were duplicitous and

that Count Three did not charge him with a crime. He also

maintains that the convictions on both counts rested on insufficient evidence. All of these arguments lack merit.

A.

At the outset, we note that King has waived his duplicity

challenges because he failed to raise them prior to trial. See

Fed. R. Crim. P. 12(b)(3)(B) (requiring defendants to bring a

"motion alleging a defect in the indictment" before trial);

United States v. Price, 763 F.2d 640, 643 (4th Cir. 1985)

UNITED STATES v. KING 7
(finding duplicity challenge waived when brought after trial).

Only upon a showing of "good cause" can a defendant avoid

waiving a forfeited duplicity claim. Fed. R. Crim. P. 12(e).

King has not even attempted to make such a showing here.

We must also reject King’s contention that Count Three

failed to charge a violation of § 924(c). Because this argument

attacks the sufficiency of the indictment, and not merely its

alleged duplicity, King’s failure to raise this argument before

trial does not waive it. See Fed. R. Crim. P. 12(b)(3)(B). But

this failure restricts our review to plain error. See United

States v. Cotton, 535 U.S. 625, 631 (2002). To demonstrate

plain error, a defendant must demonstrate: (1) error; (2) that

is plain; and (3) that affects his substantial rights. See United

States v. Olano, 507 U.S. 725, 732 (1993). We will then exercise our discretion to reverse only if "the error seriously affect[s] the fairness, integrity or public reputation of judicial

proceedings." Id. (internal quotation omitted). Moreover, we

will construe the indictment "liberally" and indulge "every

intendment . . . in support of [its] sufficiency." United States

v. Sutton, 961 F.2d 476, 479 (4th Cir. 1992) (internal quotation omitted).

Section 924(c) mandates that a court increase by five years

the sentence of a drug offender "who, during and in relation

to any crime of violence or 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)(A). The statute

thus penalizes two separate types of conduct: (1) the use or

carrying of a firearm during and in relation to the commission

of a drug trafficking crime; or (2) the possession of a firearm

in furtherance of such a crime. The indictment in this case

omitted the statute’s "in furtherance of" language, alleging

only that King used, carried, and possessed a firearm "during

and in relation to" drug trafficking. King argues that this

impermissibly relaxed the nexus to trafficking required for

conviction under the statute.

8 UNITED STATES v. KING
Given the rigorous plain error standard, King cannot prevail. An error qualifies as "plain" only if it contravenes "the

settled law of the Supreme Court or this circuit." United

States v. Reid, 523 F.3d 310, 316 (4th Cir. 2008) (internal

quotation omitted). King has not pointed to, nor has our

research revealed, any binding precedent supporting his claim

that the language omitted from the indictment creates plain

error.3 In fact, our sister circuits disagree on whether an

indictment’s mixing of the elements of § 924(c)’s "use and

carry" and "possession" prongs constitutes reversible error.

Compare United States v. Combs, 369 F.3d 925, 933 (6th Cir.

2004) (reversing conviction because the indictment "confused

the elements" of § 924(c)’s prongs) with United States v. Harvey, 484 F.3d 453, 456-57 (7th Cir. 2007) (affirming conviction); United States v. Avery, 295 F.3d 1158, 1174-76 (10th

Cir. 2002) (same). Given the dearth of binding authority, King

cannot possibly demonstrate plain error.

Accordingly, King’s challenges to the indictment fail.

B.

King additionally maintains that his convictions on Counts

One and Three rest on insufficient evidence. In assessing sufficiency of the evidence, we affirm if, "viewing the evidence

in the light most favorable to the prosecution, the verdict is

supported by ‘substantial evidence.’" United States v. Smith,

3

In the course of rejecting a challenge to jury instructions, we remarked

in an unpublished opinion that § 924(c) "creates distinct ‘use and carry’

and ‘possession’ offenses" and so if a defendant is "indicted for one

§ 924(c) offense but convicted of the other, this would of course mandate

reversal under our precedent." United States v. Woods, 271 F. App’x 338,

343 (4th Cir. 2008). Because Woods dealt with the mismatch between a

jury instruction and an admittedly sufficient indictment, we had no opportunity to assess the sufficiency of an indictment that intermixes § 924(c)’s

elements. Moreover, this unpublished non-precedential opinion can establish no basis for a finding of plain error. See United States v. Stewart, 595

F.3d 197, 199 n.1 (4th Cir. 2010). 

UNITED STATES v. KING 9
451 F.3d 209, 216 (4th Cir. 2006) (quoting United States v.

Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc)). "Substantial evidence" consists of "evidence that a reasonable

finder of fact could accept as adequate and sufficient to support a conclusion of a defendant’s guilt beyond a reasonable

doubt." Id. (quoting Burgos, 94 F.3d at 862). Throughout our

review, we "assume that the jury resolved any conflicting evidence in the prosecution’s favor." United States v. Jeffers, 570

F.3d 557, 565 (4th Cir. 2009).

1.

King argues that we should reverse his conviction on Count

One for possession with intent to distribute cocaine, heroin,

and marijuana because the jury unreasonably concluded that

the evidence established intent to distribute marijuana. He

points out that at trial the police officers admitted that the

quantity of marijuana found in his Greenville apartment was

consistent with personal use and that they found no marijuana

packaging material.

This argument also fails. This is so because of the overwhelming evidence—including King’s own admissions—of

his intent to distribute illegal narcotics. Indeed, the police

seized from King’s bedroom 426 plastic bags of cocaine,

seven dosage units of heroin, cutting agent, and three firearms, one of which was found close to the bag of marijuana.

After his arrest, King admitted ownership of the cocaine, heroin, cutting agent, and firearms, and he later testified that he

intended to distribute the cocaine. This undisputed evidence

of King’s cocaine trafficking "tended to show the existence of

a continuing narcotics business and therefore to show

[King’s] knowledge of the drug trade." United States v.

Hodge, 354 F.3d 305, 312 (4th Cir. 2004). From this evidence

of King’s participation in the drug trade, the jury could draw

an inference that King intended to sell all of the drugs in his

possession—including the marijuana.4See United States v.

4We also note that the police found no paraphernalia or other evidence

indicative of personal marijuana use in King’s apartment. 

10 UNITED STATES v. KING
Rooks, 596 F.3d 204, 211 (4th Cir. 2010). The presence of the

firearm next to the marijuana further supports this inference

of distribution. See United States v. Fisher, 912 F.2d 728, 731

(4th Cir. 1990).

Accordingly, although a small amount of marijuana found

alone would not itself justify a finding of distribution, see

United States v. Fountain, 993 F.2d 1136, 1138-39 (4th Cir.

1993), the evidence in this case, when viewed in the light

most favorable to the Government, suffices to sustain the

jury’s verdict.

2.

Sufficient evidence similarly supports King’s conviction on

Count Three for violation of § 924(c), use of a firearm in a

drug offense. We have made clear that "there are many factors

that might lead a fact finder to conclude that a connection

existed between a . . . firearm and . . . drug trafficking activity." United States v. Lomax, 293 F.3d 701, 705 (4th Cir.

2002). These include the "type of weapon," "the status of the

possession (legitimate or illegal)," and the firearm’s "proximity to drugs." Id. (internal quotation omitted).

All three of these factors support the jury’s verdict on

Count Three in this case. First, all of the firearms were handguns and so uniquely suited for drug transactions. See United

States v. Lipford, 203 F.3d 259, 267 n.7 (4th Cir. 2000). Second, King admitted that he knew his prior felony conviction

barred him from legally possessing firearms. Third, King

stored the firearms in the same room as the drugs, and one

gun rested on the headboard of the bed next to the marijuana.

Based on this evidence, the jury was entitled to conclude that

King possessed the firearms in furtherance of his drug trafficking crimes.

III.

Finally, we turn to King’s challenge to Count Five (possession of a firearm by a convicted felon), the only conviction

UNITED STATES v. KING 11
growing out of the Wilmington search. Throughout this case,

King has steadfastly contended that the gun (and other contraband) in the Wilmington apartment belonged not to him, but

to Bilal. And King has repeatedly asked the Government to

reveal its information about Bilal, which King believes will

substantiate his claim. King maintains that the Government’s

failure to do so violates Brady v. Maryland, 373 U.S. 83

(1963), which requires a court to vacate a conviction and

order a new trial if it finds that the prosecution suppressed

materially exculpatory evidence. To secure relief under

Brady, a defendant must: (1) identify the existence of evidence favorable to the accused; (2) show that the government

suppressed the evidence; and (3) demonstrate that the suppression was material. Monroe v. Angelone, 323 F.3d 286,

299 (4th Cir. 2003). The burden of proof rests with the defendant. See United States v. Stokes, 261 F.3d 496, 502 (4th Cir.

2001). In reviewing the district court’s denial of King’s Brady

motion, we review its legal conclusions de novo and its factual findings for clear error. Walker v. Kelly, 589 F.3d 127,

140 (4th Cir. 2009).

A.

King first contends that the prosecution violated Brady by

failing to timely disclose Bilal’s arraignment on drug trafficking charges in New York, Bilal’s alleged perjury at his brother’s assault trial, and Bilal’s statement to the New York

District Attorney that he "wasn’t involved in anything down

[in North Carolina]." King’s assertions on these points fall

short of establishing a basis for finding a Brady violation.

Even if we were to assume the materiality of this evidence,

King fails to demonstrate that the Government suppressed it.

The prosecutor consistently stated that she kept defense

counsel apprised of Bilal’s activities in New York. That

King’s trial counsel could not recall receiving this information does not cast doubt on the prosecutor’s representation

because, as the prosecutor explained, she informed one of

12 UNITED STATES v. KING
King’s pretrial attorneys, who represented him at the time the

information surfaced. We recognize that some information

may have failed to reach King’s trial counsel, given that King

changed attorneys three times and that his escape from custody forced the court to reschedule the trial. But the Government need only disclose exculpatory evidence, not ensure that

the defense further develop and utilize that evidence. See

Fullwood v. Lee, 290 F.3d 663, 686 (4th Cir. 2002).

B.

The Government, however, does not dispute that it refused

to disclose Bilal’s grand jury testimony. Indeed, the record is

clear that the Government specifically rebuffed both King’s

written and oral demands that it disclose that testimony and

the district court’s suggestion that it do so. The Government

explained its refusal to turn over the testimony by observing

that it "would need a court order" to reveal grand jury testimony. Although the district court apparently offered to provide such an order, the court declined to compel disclosure,

reasoning that "I don’t know what’s in the testimony regarding Mr. Bilal and we have to rely on the government’s good

faith in these situations." Here, the court erred.

Normally, of course, a defendant must specifically prove

the materiality of suppressed evidence, demonstrating "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 (1995) (internal

quotation omitted). This materiality requirement ensures that

"Brady obligations do not become unduly burdensome" and

guards against the conversion of Brady rights into a "fullscale, constitutionally-mandated discovery right for criminal

defendants." Monroe, 323 F.3d at 316 (internal quotation

omitted).

But a defendant cannot demonstrate that suppressed evidence would have changed the trial’s outcome if the GovernUNITED STATES v. KING 13
ment prevents him from ever seeing that evidence. This

problem only rarely plagues Brady cases, which typically

involve a defendant’s post-trial discovery of evidence that the

government has assertedly suppressed. See United States v.

Agurs, 427 U.S. 97, 103 (1976) (noting that Brady violations

usually involve "the discovery, after trial of information

which had been known to the prosecution but unknown to the

defense").

In a few atypical cases, however, "it is impossible to say

whether" requested information "may be relevant to [a] claim

of innocence." Pennsylvania v. Ritchie, 480 U.S. 39, 57

(1987). In those cases, in which "an accused cannot possibly

know, but may only suspect, that particular information exists

which meets [the Brady] requirements, he is not required . . .

to make a particular showing of the exact information sought

and how it is material and favorable." Love v. Johnson, 57

F.3d 1305, 1313 (4th Cir. 1995). In such circumstances, a

defendant need only "make some plausible showing" that

exculpatory material exists. Ritchie, 480 U.S. at 58 n.15;

Love, 57 F.3d at 1313. Once he has done so, he becomes "entitled . . . to have the information"—not immediately disclosed to him—but "submitted to the trial court for in camera

inspection" to determine if in fact the information is Brady

material subject to disclosure. Love, 57 F.3d at 1313; see also

Ritchie, 480 U.S. at 58. In making the requisite "plausible

showing" of the existence of exculpatory information, a

defendant must "identify the requested confidential material

with some degree of specificity." United States v. Trevino, 89

F.3d 187, 189 (4th Cir. 1996).

In this case, the Government deprived King of any access

to the grand jury testimony and so prevented him from specifically proving its materiality. King, however, made the

required "plausible showing" of possible exculpatory information by identifying the grand jury transcript of one particular

witness—an identification more specific than that which the

Supreme Court or we have previously held sufficient to trig14 UNITED STATES v. KING
ger such an in camera inspection. See Ritchie, 480 U.S. at 60-

61 (finding that defendant became entitled to an in camera

examination of all of a victim’s records with Pennsylvania’s

Children and Youth Services agency); Love, 57 F.3d at 1307

(granting in camera examination in response to request for

"alleged victim’s entire file maintained by the Wake County

Department of Social Services"). The Government certainly

could have granted King’s request for this one particular document pertaining to one grand jury witness without embarking

on a "groundless fishing expedition[ ]." Trevino, 89 F.3d at

192 (quoting United States v. Zolin, 491 U.S. 554, 571 (1989)).5

King thus identified the information sought with sufficient

particularity so as to trigger his right to an in camera inspection.

Of course, Bilal’s grand jury testimony may contain nothing helpful to King. And we are mindful that, as a general

matter, evidence that merely impeaches those who do not testify lacks relevance, much less materiality. See United States

v. Sanchez, 118 F.3d 192, 197 (4th Cir. 1997). King, however,

has demonstrated that Bilal’s grand jury testimony could contain materially favorable evidence. Even though Bilal never

testified, he figured prominently in King’s trial. King’s entire

defense to the Wilmington charges turned on persuading the

jury that the seized contraband belonged to Bilal. To that end,

5

In Trevino, we recognized and followed Ritchie and Love but found

presentence reports "entitled to a greater degree of protection from examination and disclosure" because, in contrast to Ritchie and Love, no statute

authorized their disclosure "to third parties by court order." Trevino, 89

F.3d at 191. The Government does not contend that Trevino exempts

Bilal’s grand jury testimony from in camera examination. Nor could it, for

unlike the records at issue in Trevino, but like those in Ritchie and Love,

grand jury transcripts are subject to a statute providing for their in camera

inspection and disclosure. See 18 U.S.C. § 3500(b). Thus, judges have

long enjoyed wide discretion to inspect grand jury testimony "where a particular need is shown," United States v. Bryant, 364 F.2d 598, 600 (4th

Cir. 1966), in part because the in camera procedure effectively safeguards

the government’s interest in the preservation of grand jury secrecy. See In

re Grand Jury Subpoena, 884 F.2d 124, 126 (4th Cir. 1989). 

UNITED STATES v. KING 15
King testified extensively that Bilal set him up, and defense

counsel focused on Bilal’s relationship to the Wilmington

contraband in both her opening and closing statements. Moreover, it is undisputed that Bilal and King shared the Wilmington apartment and that the police relied heavily on Bilal’s

statements in determining that the seized contraband belonged

to King and not Bilal. Given Bilal’s pivotal role in the trial,

the district court recognized that "the history of Bilal’s relationship with Mr. King here is relevant because it would cast

a question on . . . whose drugs were in the apartment."

Accordingly, although the jury disbelieved King’s story

about Bilal, it remains plausible that Bilal’s grand jury testimony contained information that might have affected that disbelief. Indeed, information pertaining to Bilal’s history with

King and thus his possible motive to ensure King’s arrest, evidence of Bilal’s firearm ownership, or statements illuminating

the tenancy arrangement at the Wilmington apartment all

could have provided King important ammunition for his

defense. If Bilal’s grand jury testimony were to contain revelations regarding any such pivotal subject, it could "reasonably be taken to put the whole case in such a different light

as to undermine confidence in the verdict." Strickler v.

Greene, 527 U.S. 263, 290 (1999) (quoting Kyles, 514 U.S.

at 435).

In addition, King has made a plausible showing that Bilal’s

grand jury testimony contained evidence material to his sentence. See Basden v. Lee, 290 F.3d 602, 611 (4th Cir. 2002)

(noting that Brady applies to evidence material to sentencing).

The district court, over King’s objection, applied an eightlevel enhancement premised on King’s alleged kidnapping of

Bilal. See U.S.S.G. §§ 2K2.1, 2A4.1. In applying the enhancement, the court expressly credited Bilal’s statements regarding

the kidnapping. Bilal’s grand jury testimony may have contained evidence that would have materially undermined the

plausibility of Bilal’s account and thus significantly reduced

King’s sentence.

16 UNITED STATES v. KING
IV.

We therefore vacate King’s conviction and sentence with

respect to Count Five and remand for the district court’s in

camera inspection of Bilal’s grand jury testimony. Love, 57

F.3d at 1316. After examining the grand jury transcript, the

district court should rule on the materiality and favorability to

King of any evidence contained therein, taking any "remedial

or other action as is required by its determination." Id. We

affirm in all other respects.

AFFIRMED IN PART AND 

VACATED AND REMANDED IN PART

UNITED STATES v. KING 17