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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 15-CM-356

ANTWAN BUCHANAN, APPELLANT,

V.

UNITED STATES, APPELLEE. 

Appeal from the Superior Court

of the District of Columbia

(CMD-13296-14)

(Hon. William M. Jackson, Trial Judge)

(Argued December 15, 2016 Decided August 3, 2017)

Donald Burke, with whom Matthew M. Madden was on the brief, for 

appellant.

Priya Naik, Assistant United States Attorney, for appellee. Channing D. 

Phillips, United States Attorney, and Elizabeth Trosman, Kathleen A. Kern, and

Melissa M. Price, Assistant United States Attorneys, were on the brief for appellee.

Before THOMPSON and MCLEESE, Associate Judges, and FERREN, Senior 

Judge.

THOMPSON, Associate Judge: Appellant, Antwan Buchanan, was arrested 

after police officers saw him drop a duffle bag and another grocery-type bag as he 

was fleeing from police officers who had asked to speak with him. When officers 

retrieved and searched the bags, they found 7.5 ounces of a plant-like substance 
2

they believed to be marijuana, two scales, over 200 empty zip-lock bags, sandwich 

bags, a nail file, and a plastic lid. The plant-like substance, which was contained in 

one small and two large zip-lock bags and which field-tested positive for THC,1

was sent to a Drug Enforcement Administration (―DEA‖) laboratory for testing.

On this evidence, the government charged appellant with possession with intent to 

distribute a controlled substance (marijuana), see D.C. Code § 48-904.01 (a)(1)

(2012 Repl.), and possession of drug paraphernalia, see D.C. Code § 48-1103 (a)

(2012 Repl.). After a bench trial, he was convicted of both offenses.

Prior to trial, appellant sought discovery under the rule now codified as 

Super. Ct. Crim. R. 16 (a)(1)(E) (―Rule 16 (a)(1)(E)‖).

2

 The Superior Court judge,

the Honorable William M. Jackson, compelled the government to produce 

documents in response to some of appellant‘s discovery requests but denied 

appellant‘s motion to compel production in response to other requests. In this 

appeal, appellant argues that the court erred in certain of its rulings denying his 

discovery requests. He asks us to require the government to produce the 

 

1

 THC ―is the active ingredient in marijuana.‖ Lesher v. United States, 149 

A.3d 519, 522 (D.C. 2016) (internal quotation marks omitted).

2

 An April 2016 amendment to the Superior Court Rules of Criminal 

Procedure moved the provision formerly contained in Rule 16 (a)(1)(C) to Rule 16 

(a)(1)(E) but made no substantive change to the content of the rule. In this 

opinion, we cite to the current codification. 
3

documents in question and to remand for the trial court to review the documents 

and determine whether appellant was prejudiced by the non-disclosure. We 

conclude that appellant is entitled to this relief with respect to some of the 

categories of documents in question and, as to other categories, is at least entitled 

to have the trial court reconsider the requests in light of ―all relevant factors and no 

improper factor.‖

3

I. 

DEA senior forensic chemist Nicole Edwards performed the chemical 

analysis of the plant-like substance. In his initial discovery requests, appellant 

sought ―the complete case file of the chemist who was responsible for testing the 

suspected marijuana recovered in this case.‖ The government provided Edwards‘s

case file to appellant on November 8, 2014, ten days prior to the scheduled trial

date. The documents produced included, inter alia, the chemical analysis report 

(DEA-113) and the forensic chemist worksheet (DEA-86), as well as ―bench notes, 

memoranda, evidence reports, chain of custody reports (DEA-12), negative and 

positive control data, chrom[a]tographs, mass spectra, photographs of [the] 

 

3

 In re R.M.G., 454 A.2d 776, 790 (D.C. 1982) (citing Johnson v. United 

States, 398 A.2d 354, 365 (D.C. 1979)).
4

evidence, and the results of any color tests and microchemical crystal tests.‖ The 

government also produced information about the make and model of the equipment 

used to test the substance and the ―scope of accreditation‖ document for the DEA 

laboratory. Upon receipt of this information, appellant moved to continue the trial 

date in order to confer with his own expert chemist. Judge Jackson set a new trial 

date. 

On December 16, 2014, appellant moved to compel the production of 

additional documents he had requested. As pertinent here, he sought to compel the 

government to produce (1) ―the standard operating procedures [(―SOPs‖)] used in 

the DEA lab,‖ (2) ―validation studies relating to those procedures,‖ (3) 

―maintenance and calibration records for the equipment used by the DEA lab,‖ (4) 

―audit reports on the operations of the DEA lab,‖ (5) ―training materials used by 

the lab,‖ and (6) ―proficiency examinations and performance evaluations for the 

chemist who had tested the suspected marijuana.‖ In support of his request, 

appellant submitted the affidavit of Heather Harris, a ―forensic chemistry 

consultant and adjunct professor of forensic science employed by Arcadia 

University in Glenside[,] [Pennsylvania].‖ Harris averred that she needed to 

review the documents appellant sought ―to ensure that the [DEA] analyst came to 

the proper conclusion [regarding the evidence] and that the conclusion is 
5

scientifically supported by the analytical results‖ and asserted that it was 

―impossible to evaluate the validity and reliability of [the DEA] analysis without 

this documentation.‖ 

In its written opposition to appellant‘s motion, the government agreed to 

provide ―the DEA Laboratory Order regarding the Analyses of MPDC Evidence 

(DEA-42)‖ (the ―Laboratory Order‖) on condition that appellant sign a nondisclosure agreement. The government rejected appellant‘s requests for other 

documents on grounds that their acquisition was unduly burdensome or beyond the 

reach of Rule 16 (a)(1)(E). Appellant filed a reply memorandum in support of his 

motion to compel, to which he attached a second affidavit from Harris. 

In a written ruling dated February 27, 2015, Judge Jackson said that the 

government would be required to produce the DEA laboratory SOPs ―[t]o the 

extent that the DEA Laboratory Order does not encompass DEA‘s standard 

procedures and guidelines for testing marijuana,‖ as well as the DEA laboratory 

accreditation reports ―[t]o the extent that the [DEA laboratory‘s] accreditation is 

not publicly available.‖ Judge Jackson rejected appellant‘s requests for the 

remaining documents. 
6

Upon the judge‘s ruling, appellant filed a second motion to compel, arguing

that the government had failed to comply with the court order requiring the 

government‘s disclosure of the DEA‘s SOPs. The motion was accompanied by a 

third affidavit from Harris. Judge Jackson denied the motion from the bench,

reasoning that appellant would be able to call the chemist as a fact witness about 

the laboratory‘s operating procedures. 

The case proceeded to trial on March 30, 2015. The government had 

Edwards available to testify in its case-in-chief, but before she took the stand, 

appellant‘s trial counsel ―stipulated to the admissibility of the DEA-7 and the 

findings that have been made within.‖ Accordingly, Edwards did not testify at trial

(and thus was not cross-examined). The DEA-7 that was admitted into evidence 

revealed that Edwards had weighed the plant-like substance and performed three 

different types of tests — a microscopic inspection, a gas chromatography/mass 

spectrometry (―GC/MS‖) test, and a Duquenois-Levine (―D-L‖) color test — to 

determine whether the substance was marijuana. Her report indicated that all three 

tests were positive, leading Edwards to conclude that the sample ―contained  ̳a 

measurable amount of [m]arijuana.‘‖ 
7

In addition to the DEA-7, the government‘s evidence at trial included the 

testimony of a police detective to the effect that the amount of marijuana found in 

the bags appellant discarded was consistent with intent to distribute and 

inconsistent with possession for personal use. The detective also testified that the 

scale, nail file, small zip-lock bags, and other items found in the bag are tools 

commonly used to separate and package drugs for distribution. 

II.

Appellant now challenges the trial court‘s denial of his motion to compel 

production of the six categories of withheld documents described above. Relying 

on Rule 16 (a)(1)(E), appellant argues that the trial court erred by denying his

discovery requests where they ―were supported by unrebutted expert affidavits 

specifically identifying the potential for error in the testing methods employed by 

the government‘s chemist, the defense‘s need for the requested information, and 

the absence of any likely burden on the government.‖4The government argues that 

 

4

 Appellant argues that ―[t]he appropriateness of [his] discovery requests‖

is ―underscored by the rules governing the [District of Columbia] Consolidated 

Forensic Laboratory, which would make most of what [he] sought in this case 

either a public record or subject to automatic disclosure if the testing at issue in this 

case had been conducted‖ at that laboratory. He cites D.C. Code § 5-1501.06

(h)(2) (2012 Repl.), providing that the defense will receive a copy of ―records,‖ 

(continued...)
8

appellant is not entitled to the relief he requests because he (1) failed to establish 

that the materials in dispute were material to his defense, (2) stipulated to the 

analysis and findings of the DEA chemist and thus forwent opportunities to 

challenge the government‘s forensic evidence at trial, (3) declined to call his expert 

to testify about the alleged errors committed by the DEA chemist, and (4) failed to 

demonstrate that he was prejudiced by the court‘s denial of his requests. 

―We review the trial court‘s discovery rulings for abuse of discretion, but we 

consider the proper construction of [Rule 16 (a)(1)(E)] de novo.‖ Watson v. United 

States, 43 A.3d 276, 283 (D.C. 2012) (citations omitted). If we conclude that the 

trial court erred or erroneously exercised its discretion in not compelling the 

requested document production under Rule 16, we must ―turn to the more difficult 

 

(...continued)

defined to include, inter alia, ―[a]ny logs related to the equipment or materials used 

in testing‖ and ―[p]roficiency test results for individual examiners involved in the 

analysis.‖ Id. § 5-150l.06 (h)(3)(G), (I). He cites in addition § 5-150l.06 (i)(2), 

which declares to be ―public‖ a set of materials that include the laboratory‘s 

―[p]rotocols for forensic testing, examination, and analysis[,]‖ its ―[p]rocedures for 

monitoring the quality of forensic analysis[,]‖ and its ―[i]nternal validation 

studies.‖ Id. § 5-1501.04 (b)(l), (5), (9). Appellant acknowledges that these rules 

are not binding on the DEA, but argues that they reflect the judgment of the 

Council of the District of Columbia ―that criminal defendants should have broad 

access to information about potential sources of error in the forensic evidence the 

government seeks to offer against them[.]‖ These rules may also be germane to 

whether producing such records in discovery is unduly burdensome.
9

questions as to whether [appellant] was prejudiced by the government‘s failure to 

comply with Rule 16, [and] whether that failure warrants reversal of [his] 

convictions and a new trial.‖ Ferguson v. United States, 866 A.2d 54, 65 (D.C. 

2005). 

―Rule 16 [(a)(1)(E)], which governs pretrial discovery, confers [on] an 

accused the right to discover specific information within the government‘s control, 

such as books, papers, documents, photographs . . . which are material to the 

preparation of the defendant’s defense . . . .‖ Watson, 43 A.3d at 283 (emphasis 

added) (internal quotation marks omitted). To establish that the documents are 

material, a defendant must show ―a relationship between the requested evidence 

and the issues in the case, and there must exist a reasonable indication that the 

requested evidence will either lead to other admissible evidence, assist the 

defendant in the preparation of witnesses or in corroborating testimony, or be 

useful as impeachment or rebuttal evidence.‖ United States v. Curtis, 755 A.2d 

1011, 1014–15 (D.C. 2000). ―A defendant must make a threshold showing of 

materiality, which requires a presentation of facts which would tend to show that 

the [g]overnment is in possession of information helpful to the defense.‖ Id. at 

1015 (internal quotation marks omitted). ―The threshold showing of materiality is 

not a high one.‖ Id. ―However, neither a general description of the information 
10

sought nor conclusory allegations of materiality suffice.‖ Id. (internal quotation 

marks and brackets omitted). Federal courts have held that the defense ―must 

show more than that the item bears some abstract logical relationship to the issues 

in the case . . . . There must be some indication that the pretrial disclosure of the 

item would . . . enable the defendant significantly to alter the quantum of proof in 

his favor[,]‖ United States v. Jordan, 316 F.3d 1215, 1251 (11th Cir. 2003) 

(internal quotation marks and brackets omitted), and that ―the requested discovery 

[must have] relevance to . . . the defendant[’s] particular case.‖ United States v. 

Soto-Zuniga, 837 F.3d 992, 1001 (9th Cir. 2016) (emphasis added); see also id. at 

1003 (explaining that the test is ―whether the discovery may assist [the defendant] 

in formulating a defense‖).

5

 Documents that ―refute the [g]overnment‘s arguments 

that the defendant committed the crime charged‖ fall squarely within the Rule. 

United States v. Armstrong, 517 U.S. 456, 462 (1996). A defendant‘s ―request for 

discovery materials must be reasonable and may not unduly burden the 

government.‖ Curtis, 755 A.2d at 1016 (citing Wiggins v. United States, 521 A.2d 

1146, 1148 (D.C. 1987)). 

 

5

 ―Because [Super. Ct. Crim. R.] 16 is substantially the same as its federal 

counterpart . . . , it is to be construed consistently with the federal rule[,] and we 

may look to relevant federal precedents for guidance.‖ Curtis, 755 A.2d at 1014 

(internal quotation marks omitted).
11

In Curtis, the government appealed after the Superior Court granted a 

motion to dismiss the case for the government‘s failure to turn over information 

regarding the ―maintenance and repair of instruments used, as well as reports, 

training materials, and written protocols and procedures relating to the testing of 

controlled substances that were generated or in use from the time the DEA Lab 

received the evidence in th[e] case to the time when the analysis was completed.‖ 

755 A.2d at 1013. In opposing the defendants‘ motion to compel, the government 

had submitted evidence ―that the DEA Lab equipment would not give false 

positive results even if the equipment were not maintained properly.‖ Id. at 1015. 

We reversed (and remanded because the trial court had made no specific findings 

regarding materiality or burdensomeness), id. at 1017–18, but observed that 

contradictory ―information that the failure to properly maintain the lab equipment 

could lead to inaccurate test results, including false positives, would make the 

maintenance logs material.‖ Id. at 1015 n.8. ―Similarly,‖ we observed, ―the 

submission of an affidavit from a qualified chemist that he or she noted a possible 

flaw in the testing procedures used by the DEA chemist . . . would satisfy the 

threshold showing of materiality . . . for copies of the training materials and 

protocols and procedures utilized by the DEA.‖ Id. We left it ―to the discretion of 

the trial court to determine what type of threshold showing [was] appropriate‖ to 

demonstrate materiality but instructed that the defendants ―must make some 
12

preliminary showing of a reason to doubt the chemical analysis provided by the 

government‖ and of ―some link to a material issue in the case.‖ Id. at 1015. 

In Jackson v. United States, 768 A.2d 580 (D.C. 2001), we reasoned that 

―[m]ateriality is easily demonstrated‖ where the government has yet to produce a 

―detailed description of the tests performed‖ by the DEA, ―broken down to 

include, among other things, the evidence sampling procedures, qualitative 

analysis, and quantitation, with the latter differentiated by method [number] and 

various weight classifications.‖ Id. at 583 (internal quotation marks omitted). We 

explained, however, that where the government has already produced reports on 

the results of scientific tests done on suspected controlled substances submitted to 

the DEA for analysis, and where the defense is ―demanding still additional 

background documents related to DEA testing‖ through a ―broad request‖ that 

amounts to ―a fishing expedition,‖ the Curtis ―reason to doubt‖ standard applies, 

and ―the defense w[ill] have to furnish information by affidavit or otherwise 

contradicting or calling in question the documentation already disclosed before 

further intrusion into DEA‘s internal processes w[ill] be sanctioned.‖ Id. at 583 &

n.2 (emphasis, brackets, and internal quotation marks omitted).
13

In determining whether a defendant was prejudiced by the denial of a motion 

to compel the government to produce documents, we must determine the 

―likelihood that the verdict would have been different had the government 

complied with the discovery rules or whether the remedy offered by the trial court 

was inadequate to provide [appellant] with a fair trial.‖ Ferguson, 866 A.2d at 65 

(internal quotation marks, citation, and brackets omitted). Where we cannot 

determine the likelihood that the case would have had a different outcome with the 

requested discovery, the proper course is a record remand ―for consideration of the 

issue by the trial judge . . . , who may make the necessary comparison and transmit 

[his] findings to us.‖ Jackson, 768 A.2d at 584 (citing Davis v. United States, 564 

A.2d 31, 42 (D.C. 1989) (en banc) (Where this court has ―an incomplete record 

upon which to assess harmlessness,‖ remand is appropriate for the trial court ―to 

make the proper evidentiary record and return the matter to this court.‖)); see also 

Soto-Zuniga, 837 F.3d at 1002 (―[B]ecause we do not have access to the records in 

question, we cannot determine the likelihood of whether [the] case would have had 

a different outcome had [the defendant] been permitted discovery. The proper 

course under such circumstances is to remand for discovery and an evidentiary 

determination.‖ (citation omitted)).
14

III.

We now consider in turn each of the categories of documents whose 

production by the government the trial court declined to compel. 

1. The DEA laboratory‘s standard operating procedures. The first is ―the 

standard operating procedures used in the DEA lab.‖ The court ordered the 

government to produce the SOPs if they were not ―encompass[ed]‖ in the 

Laboratory Order. After the government produced the Laboratory Order, defense 

counsel attempted to explain that the condition the court had established was not 

satisfied, but, after a brief discussion, the court firmly shut down counsel‘s 

argument (saying ―[n]ext issue‖), apparently without having carefully reviewed the 

Laboratory Order to ascertain whether it included ―a list of standard operating 

procedures.‖ Harris‘s third affidavit had explained that the Laboratory Order set 

out only ―general guidance for completing a case‖ and did not satisfy the request 

for the DEA laboratory‘s SOPs because it did not provide ―the technical 

information that is required to replicate the [DEA] testing‖ and ―to fully 

understand the limitations of the testing.‖6 In addition, defense counsel drew the 

 

6

 The Laboratory Order addresses, inter alia, procedures for receiving a 

suspected substance from and returning it to the MPD, the proper handling of that 

(continued...)
15

court‘s attention to the government‘s transmittal letter attaching the Laboratory 

Order, but ―declin[ing] to provide . . . the [SOPs]‖ (thus, at least arguably, 

implicitly acknowledging that the content of the two was not identical). The trial 

court told counsel that the defense could ―call [Harris] . . . as a fact witness to say 

this is not a standard operating procedure,‖ but that rationale for resolving the issue 

without further examination overlooked that Rule 16 discovery is to be available 

for use by the defense ―as impeachment . . . evidence,‖ Curtis, 755 A.2d at 1015 —

here, evidence with which appellant might impeach the DEA chemist.

7

Although highlighting appellant‘s representation that Harris would not 

attempt to replicate the DEA testing ―because she no longer worked at a 

laboratory,‖ the government has not disputed Harris‘s assertion that she needed to 

review the SOPs to understand the ―limitations of the [DEA] testing.‖ Nor has the 

 

(...continued)

substance if it comes in numerous containers, and the method for determining the 

weight of the substance, but does not describe the DEA‘s standard procedures for 

determining whether the substance is marijuana.

7

 Cf. Cole v. State, 835 A.2d 600, 609–10 (Md. 2003) (―If the testimony, 

however, revealed that the standard operating procedures were not followed, that 

might be exculpatory evidence which, when brought out in cross-examination, 

could make a meaningful difference to a fact-finder.‖).
16

government asserted that production of the SOPs would be burdensome.8 

Accordingly, we agree with appellant that the trial court erroneously exercised its 

discretion in declining to enforce its order requiring the government to produce 

documentation ―encompass[ing]‖ the SOPs without a more careful consideration of 

what, if any, material information its ruling made inaccessible to the defense.9 

 

8

 Harris‘s affidavit averred (and the government does not dispute) that the 

burden associated with producing all of the requested documents is minimal, 

stating that ―[a]ll of this documentation is produced in the normal course of 

business for a forensic laboratory so the burden of this request is limited to the 

collection of the relevant documents.‖ 

9

 The government urges us to follow ―numerous other courts across the 

country [that] have held that DEA procedures and manuals are not discoverable 

under federal Rule 16.‖ However, the appellate cases the government cites upheld 

the denial of discovery under the rule currently codified as Rule 16 (a)(1)(F), 

which pertains to ―Reports of Examinations and Tests.‖ The cases did not hold 

that production of such documents was not mandated under the rule currently 

codified as Rule 16 (a)(1)(E) — the rule that governs the instant case. See, e.g., 

United States v. Price, 75 F.3d 1440, 1445 (10th Cir. 1996) (noting that ―Price 

relied almost exclusively on [the rule currently codified as Fed. R. Crim. P. 16 

(a)(1)(F)]‖ and that ―[t]he references in Price‘s motions to [other] 

subparagraphs . . . of Rule 16 (a)(1) were entirely without detail, and . . . provided 

no further basis for a ruling‖); United States v. Iglesias, 881 F.2d 1519, 1521, 

1523–24 (9th Cir. 1989) (DEA protocols and the DEA chemist‘s ―log notes‖ were 

not discoverable under the rule currently codified as Fed. R. Crim. P. 16 

(a)(1)(F).); United States v. Berry, 670 F.2d 583, 605 (5th Cir. 1982) (applying the 

paragraph of Fed. R. Crim. P. 16 pertaining to the ―results or reports of . . . any 

scientific test‖ (currently codified as Rule 16 (a)(1)(F)) and concluding that the 

DEA chemist‘s personal work notes and the ―Drug Enforcement Administration 

Analytical Manual‖ were irrelevant); United States v. Orzechowski, 547 F.2d 978, 

984 (7th Cir. 1976) (rejecting the claim that certain DEA internal memoranda were 

research reports that fell within the rule currently codified as Rule 16 (a)(1)(F)). 

These cases reflect the intent of the Rule 16 Advisory Committee that ―[w]ith 

(continued...)
17

2. The other categories of documents. In pressing his claim of trial-court 

error with respect to the other categories of documents whose production the trial 

court declined to order, appellant relies on Harris‘s first and second affidavits, in 

which she ―noted a possible flaw in the testing procedures used by the DEA 

chemist.‖ Curtis, 755 A.2d at 1015 n.8. Specifically, Harris averred that the DEA 

chemist ―used the remaining portion of another test sample‖ to perform the D-L

test and opined that ―[t]his is not proper scientific practice and could result in 

contamination of the sample prior to the D-L test.‖ Harris also averred that sample 

contamination ―can lead to false positive results.‖ The government asserts that 

appellant did not meet his burden of making a ―prima facie showing of materiality‖ 

 

(...continued)

respect to results or reports of scientific tests or experiments[,] the range of 

materials which must be produced by the government is further limited to those 

made in connection with the particular case.‖ Fed. R. Crim. P. 16 advisory 

committee‘s note to 1966 amendment.

Notably, in Curtis, this court agreed that documents concerning the 

maintenance of DEA laboratory equipment and training manuals do not fall under 

the rule currently codified as Rule 16 (a)(1)(F), because ―they are neither reports of 

scientific tests or experiments,‖ but we remanded for further proceedings because 

the trial court ―made no specific findings regarding the materiality of the 

[requested documents]‖ under the rule currently codified as Rule 16 (a)(1)(E). 755 

A.2d at 1017–18. As discussed above, Curtis establishes that where the defendant 

has produced an ―affidavit from a qualified chemist that he or she noted a possible 

flaw in the testing procedures used by the DEA chemist[,] . . . [such] would satisfy 

the threshold showing of materiality with respect to . . . protocols and procedures 

utilized by the DEA,‖ so as to require production under Rule 16 (a)(1)(E). Id. at 

1015 n.8. 
18

because his expert Harris ―neither cited to a document where such an error was 

discernible nor . . . explain[ed] how she deduced that such an error occurred‖ and 

―did not explain how the use of the same sample to conduct a color test after that 

sample was viewed under a microscope would undermine the chemist‘s 

conclusion.‖ The government provided no evidence to counter Harris‘s claim

about the DEA chemist using ―the remaining portion of another test sample,‖ but 

argues that Harris‘s affidavit did nothing more than make ―conclusory arguments 

that scientific methods are not infallible‖ and that ―laboratory equipment is capable 

of failing,‖ which do not meet the Curtis standard. See 755 A.2d at 1015

(―[C]onclusory allegations of materiality [do not] suffice.‖ (internal quotation 

marks omitted)). 

a. Training materials. The government‘s ―conclusory arguments‖ response 

as to the other categories of documents is too general. We conclude that appellant 

did meet his burden under Curtis of establishing materiality with respect to the 

requested ―training materials used by the [DEA] lab.‖10 We said in Curtis ―the 

 

10

 The trial court declined to order production of the training materials in a 

single sentence: ―The Court denies defendant‘s request for training materials.‖ 

We are unable to discern why the court so ruled. ―[A] trial court‘s action is an 

abuse of discretion if . . . [it does] not rest upon a specific factual predicate.‖ 

Johnson, 398 A.2d at 364 (citation omitted). 
19

submission of an affidavit from a qualified chemist that . . . she noted a possible 

flaw in the testing procedures used by the DEA chemist . . . would satisfy the 

threshold showing of materiality . . . for copies of . . . training materials and 

protocols and procedures utilized by the DEA.‖ Id. at 1015 n.8 (emphasis added). 

We did not say that the burden of establishing materiality with respect to such 

documents could be met only if the qualified chemist said enough about the 

particular ―possible flaw‖ to establish a prima facie case that the test results were 

unreliable, or said enough to prove under some standard that the alleged ―possible 

flaw‖ in the testing procedures used was indeed a flaw. It is enough that the 

identified ―possible flaw,‖ id., ―call[ed] into question‖ the government‘s evidence 

(here, the DEA-7 report concluding that the plant-like substance was marijuana) on 

an issue in the case. Id. at 1014, 1015 n.8; Jackson, 768 A.2d at 583 n.2.

11 For this 

reason, we agree that the trial court erred in not requiring the government to 

produce copies of the training materials used by the DEA laboratory.12 

 

11

 See also United States v. Simpson, 845 F.3d 1039, 1056 (10th Cir. 2017) 

(concluding that the defendant, who was seeking to suppress the results of a search 

warrant, did not meet his burden of making ―a prima facie showing of materiality‖

with respect to his discovery request for camera footage that might show that a 

police informant had lied, because ―to justify suppression, [the defendant] needed 

to attack the veracity of the police affiant, not the informant‖).

12

 Cf. United States v. Thomas, 726 F.3d 1086, 1096 (9th Cir. 2013) 

(explaining that the government was compelled under Rule 16 (a)(1)(E) to disclose 

―the handler‘s log, . . . training records and score sheets, certification records, and 

(continued...)
20

b. Validation studies. The trial court assumed that appellant‘s request for 

―validation studies relating to‖ the DEA laboratory‘s SOPs — a request that the 

court characterized as ―less than crystal clear‖ — was a request for ―studies 

validating the methods used in the type of drug testing in this case.‖ The court 

declined to compel production of such items on the ground that Harris‘s affidavit 

did ―not call into question the DEA‘s methods, nor [did] it assert that these 

methods are different from those widely accepted in the scientific community.‖ 

We agree with the trial court that precisely what appellant sought through 

his reference to ―validation studies‖ was less than clear at the time of the court‘s 

February 27, 2015, ruling. However, although Harris‘s third affidavit attempted to 

elucidate the request,

13 the court did not revisit the issue after receiving that 

 

(...continued)

training standards and manuals pertaining to [a narcotics-detection] dog,‖ because 

those materials were ―crucial to the defendant‘s ability to assess the dog‘s 

reliability, a very important issue in his defense, and to conduct an effective crossexamination of the dog‘s handler‖ (internal quotation marks and brackets 

omitted)).

13

 Harris explained that ―[a] request for validation studies is a request for 

the proof that the laboratory‘s analytical tests can perform reliably and generate 

accurate results‖; that ―[v]alidation is how the laboratory proves that it is running 

the tests properly and can generate correct results in its unique environment, on its 

unique equipment, with its unique people and its specific procedures‖; and that 

(continued...)
21

additional information. Further, while Harris ―agree[d] with the government that 

the general techniques that are being used in the DEA Mid-Atlantic laboratory are 

generally accepted in the community,‖ she averred that ―[g]eneral acceptance does 

not prove that DEA Mid-Atlantic is using those techniques accurately and 

reliably.‖ The trial court did not appear to consider Harris‘s explanation about the 

importance of reliable application of generally accepted methods.

14 For these 

reasons, we are not satisfied that the trial court properly exercised its discretion 

when it declined to compel the government to produce the requested validation 

studies. See Johnson, 398 A.2d at 365 (―To exercise its judgment in a rational and 

informed manner[,] the trial court should be apprised of all relevant factors 

pertaining to the pending decision[,]‖ and ―[t]he court reviewing the decision for 

an abuse of discretion must determine whether the decision maker failed to 

consider a relevant factor[.]‖ (internal quotation marks omitted)). We conclude 

 

(...continued)

―[v]alidation is a series of experiments run in the laboratory to challenge the tests 

and to determine its limitations.‖ Harris also averred that the ―DEA, through its 

scientific working group SWGDRUG, has written a comprehensive guide to 

validation.‖ 

14

 See Motorola Inc. v. Murray, 147 A.3d 751, 757 & n.8 (D.C. 2016) (en 

banc) (adopting Fed. R. Evid. 702 (d), which ―expressly requires the court to 

determine whether [an] expert has reliably applied [accepted] principles and 

methods to the facts of the case‖ (internal quotation marks omitted)).
22

that a remand is required for the court to consider this category of documents more 

fully.

c. Maintenance and calibration records. We next consider appellant‘s claim 

that the trial court erred in not compelling the government to produce

―maintenance and calibration records for the equipment used by the DEA lab.‖

The trial court ruled that ―[a]bsent a good-faith assertion of an equipment defect, 

defendant‘s request for calibration checks is overly broad and, therefore[,] denied.‖ 

As to the request for maintenance information, the trial court denied the request ―as 

unduly burdensome‖ and noted that the government was obligated under Brady v. 

Maryland, 373 U.S. 83 (1963), ―to furnish defendant with information regarding 

problems with the equipment employed here.‖ Harris‘s third affidavit averred that 

―[e]very time a GC/MS is used for casework, a tune and calibration must be 

performed to allow the instrument to  ̳calibrate‘ and then to provide an assessment 

of the state of the instrument prior to running unknown samples.‖ She added that 

―maintenance and calibration logs . . . should detail the performance of the 

instrument and the laboratory‘s adherence to a maintenance procedure.‖ In her 

second affidavit, however, Harris averred that ―[w]ith regard to the GC/MS, which 

is identifying THC rather than marijuana, false positives are rare due to the unique 
23

action of the mass spectrometer‖ (although ―[s]ample contamination and 

misinterpretation of data . . . can lead to false positive results‖). 

On this record — Harris‘s statement about maintenance and calibration only 

with respect to the GC/MS equipment — we must agree that appellant‘s request to 

compel production of ―maintenance and calibration records for the equipment used 

by the DEA lab‖ (without restriction as to time period or as to type of equipment)

was overly broad. Further, as Harris did not state that failure to calibrate the 

GC/MS equipment could lead to a false positive identification of marijuana, it is 

not apparent from the record that the documents sought were relevant to whether 

appellant ―committed the crime charged,‖ Armstrong, 517 U.S. at 462, or that they 

would have enabled appellant ―significantly to alter the quantum of proof in his 

favor.‖ Jordan, 316 F.3d at 1251.

15

 Nevertheless, the trial court‘s reasons for 

 

15

 Quoting the Court of Appeals of Maryland‘s opinion in Cole, appellant 

argues that it is enough that the requested calibration records are ―potentially 

relevant to the case because an improperly calibrated machine . . . could lead to an 

inaccurate result.‖ 835 A.2d at 614. Our case law does not allow this approach in 

light of the record of government document production in this case. See Jackson, 

768 A.2d at 584 & n.2 (acknowledging that Rule 16 ―looks only to the potential 

value of the evidence to competent defense counsel,‖ but explaining that the 

―higher‖ materiality standard established by Curtis applies where the government 

has already produced documents showing the ―underlying spectral analysis of the 

drugs‖ and describing the DEA‘s ―test procedures and equipment,‖ and the defense 

nonetheless is ―demanding still additional background documents related to DEA 

testing‖ (internal quotation marks and brackets omitted)). We also note that Cole

(continued...)
24

denying the motion to compel the production of maintenance and calibration 

records even for the GC/MS equipment that Harris discussed — that the request 

was unduly burdensome and that Brady required the government to produce 

information about problems with the equipment — either are unsupported (and 

contradicted by Harris‘s sworn statement about the minimal burden of production) 

or do not take into account the relevance of information about (possible) lack of 

adherence to a maintenance or calibration regimen. Thus, we cannot uphold the 

trial court‘s ruling with respect to maintenance and calibration records for the 

GC/MS equipment used in this case. 

d. Audit reports. The trial court rejected appellant‘s request to compel 

production of ―audit reports on the operations of the DEA lab‖ as ―unduly 

burdensome‖ (noting, as to this category, too, that Brady ―obligates the 

government to disclose any problems with the accuracy of tests that may have been 

 

(...continued)

did not interpret a rule of criminal procedure analogous to our Rule 16 (a)(1)(E); 

rather, it applied Maryland law that establishes a relevance standard (rather than 

our jurisdiction‘s ―materiality‖ standard). Compare Curtis, 755 A.2d at 1014–15 

(holding that what is required to establish materiality under the rule currently 

codified as Rule 16 (a)(1)(E) is ―some preliminary showing of a reason to doubt 

the chemical analysis provided by the government‖), with Cole, 835 A.2d at 608 

(explaining that ―to show a given document or item of information is discoverable, 

a defendant must show . . . that the information or document is relevant to the 

subject matter of the case‖).
25

revealed as a result of any audits‖). Yet, Harris‘s third affidavit averred that the 

burden associated with producing the audit reports is minimal, explaining that such 

reports ―are required to be . . . stored in easily accessible locations in order to 

maintain accreditation,‖ and the government put forth no evidence of its own to 

dispute Harris‘s assertion. Appellant‘s specific request — for ―any audit reports 

for the period beginning one year prior to the testing performed in‖ this case —

may, however, be overly broad, since it appears to seek documents covering a time 

period other than the one during which DEA chemist Edwards performed her 

analysis in connection with appellant‘s case. On remand, the trial court should 

reconsider the request for audit reports that are temporally relevant. 

e. Proficiency examinations and performance evaluations. The final 

category of documents in dispute pertains to ―proficiency examinations and 

performance evaluations for the chemist who . . . tested the suspected marijuana.‖

In denying appellant‘s request to compel production, the trial court reasoned that 

disclosure was not mandated ―[g]iven the applicability of the Privacy Act [5 U.S.C.

§ 552a (2012)].‖ Appellant argues that such denial was an abuse of discretion 

because ―courts have unanimously held that the Privacy Act does not create a 

discovery privilege.‖ We agree with appellant that the trial court‘s rationale

reflected an erroneous legal interpretation and was not a sufficient basis for 
26

denying his request. See In re Tucker, 689 A.2d 1214, 1215–16 (D.C. 1997) 

(recognizing that the Privacy Act allows for the disclosure of information 

otherwise protected by the Act ―pursuant to the order of a court of competent 

jurisdiction,‖ and concluding that this term includes ―the court with jurisdiction 

over the substantive controversy,‖ which therefore ―has jurisdiction to determine 

whether disclosure of the records in question should be required‖ (internal 

quotation marks omitted)).

In Laxalt v. McClatchy, the United States Court of Appeals for the District 

of Columbia Circuit held that the district court ―applied the wrong legal standard‖

when it required appellants to show ―a specific need for [] documents‖ that they 

requested in (civil) discovery and that were subject to the Privacy Act. 809 F.2d 

885, 886 (D.C. Cir. 1987) (internal quotation marks omitted). The court reasoned 

that the Privacy Act ―does not create a qualified discovery privilege‖ and does not 

―create any other kind of privilege or bar that requires a party to show actual need 

as a prerequisite to invoking discovery.‖ Id. at 888. Rather, ―the plain language of 

the statute permits disclosure  ̳pursuant to the order of a court of competent 

jurisdiction.‘‖ Id. (citing 5 U.S.C. § 552a (b)(11) (1982)). The court found ―no 

basis for inferring that the statute replaces the usual discovery standards . . . with a 

different and higher standard‖ and held that ―a party can invoke discovery of 
27

materials protected by the Privacy Act through the normal discovery process and 

according to the usual discovery standards.‖ Id. at 888–89; see also id. at 889 

(noting that the fact that a document is subject to the Privacy Act may be relevant 

―to the manner in which discovery should proceed‖ and that the district court had 

―ample discretion to fashion [an] appropriate protective order[] upon a showing of 

 ̳good cause‘‖ (citation omitted)). 

In the instant case, the trial court erroneously relied solely on a more 

restrictive application of the Privacy Act. We conclude that the DEA chemist‘s 

proficiency testing results and performance evaluations (which bear on the DEA 

chemist‘s competence to perform the drug testing and trustworthiness in accurately 

reporting test results) were material to appellant‘s defense and that the trial court‘s 

ruling denying appellant‘s request to compel productions of these items solely on 

the basis of the Privacy Act, and without consideration of a protective order,

cannot be sustained.16 

 

16

 The government argues that the documents were not material because the 

government was obligated under Giglio v. United States, 405 U.S. 150 (1972), to 

disclose any proficiency-examination failures and negative performance 

evaluations. As appellant argues, however, that obligation at least arguably would 

not require the government to produce passing but low-proficiency examination 

results, and adherence to its obligations under Giglio presumably would not require 

the government to disclose, e.g., that, at the time she performed her analysis, the 

chemist had not been tested recently. 
28

IV. 

The remaining issue is whether appellant was prejudiced by the denial of his 

motion to compel. As noted above, our task is to ―determine the likelihood that the 

verdict would have been different had the government complied with the discovery 

rules.‖ Ferguson, 866 A.2d at 65 (internal quotation marks omitted). If we 

―cannot say, with fair assurance, after pondering all that happened without 

stripping the erroneous action from the whole, that the judgment was not 

substantially swayed by the error,‖ or if we are ―left in grave doubt, the conviction 

cannot stand.‖ Id. (quoting Kotteakos v. United States, 328 U.S. 750, 765 (1946)).

We have considered whether the issue of prejudice (from appellant‘s lack of 

access to documents that might have enabled him to create doubt about whether the 

plant-like substance was marijuana) is resolved by the fact that several times —

during his opening statement and closing argument — appellant‘s trial counsel 

referred to the substance as marijuana. As the government asserts, appellant ―did 

not contest at trial that the substance found inside the bag was marijuana.‖ Quite 

the contrary, in his opening statement, appellant‘s counsel stated, ―These officers 

found a bag that had marijuana in it[,] and they assumed that it belonged to Mr. 
29

Buchanan‖ (emphasis added), and in his closing argument told the court that 

appellant was ―not contesting that whoever possessed that bag . . . and that 

marijuana would be guilty of these crimes‖ and argued that the case was about 

officers ―jumping to conclusions‖ when they ―found this marijuana[] [and] . . . 

assumed it belonged to Mr. Buchanan.‖ We have said that such references may be

―tantamount to, or indeed constitute[], evidentiary admissions‖ that are ―binding 

upon the party.‖ Kaliku v. United States, 994 A.2d 765, 777 (D.C. 2010) (internal 

quotation marks omitted) (stating that counsel‘s repeated statements, during 

opening and closing, that their clients engaged in consensual sexual acts with the 

victim constituted evidentiary admissions that rendered harmless the government‘s 

failure to produce for cross-examination the FBI analyst who performed the testing 

that concluded that the victim‘s DNA was found on defendants‘ penile swabs).

We decline to decide the appeal on this basis, however. We recognize that 

counsel‘s approach, like his decision to forgo cross-examination of the DEA 

chemist, may have reflected his assessment that a challenge to whether the plantlike substance was marijuana was not ―worth the candle‖ in light of the trial court‘s 

denial of the defense motion to compel documents that might have been used to 

undermine the results reported on the DEA-7. Jackson, 768 A.2d at 584. 
30

The government argues that appellant‘s ―stipulat[ion] to the chemist‘s report 

and analysis‖ forecloses his argument that he was prejudiced by the court‘s 

discovery ruling. We agree that the stipulation may be taken as a concession that 

the DEA chemist‘s report was sufficiently reliable to be admissible,17 but we reject 

the notion that the stipulation now precludes appellant from arguing that he was 

entitled to discovery that may have enabled him to persuade the fact-finder that 

there was a reason to doubt the DEA-7 results. Cf. Byrd v. United States, 485 A.2d 

947, 950 (D.C. 1984) (―[T]he defense was not foreclosed from calling witnesses in 

contradiction‖ of stipulated testimony); see also Criminal Jury Instructions for the 

District of Columbia, No. 2.104 cmt. (5th ed. rev. 2012) (―When the parties agree 

that stipulated testimony or deposition testimony is admitted, the parties are still 

free to challenge that evidence in the same manner as they would live testimony.‖).

As discussed above, through the DEA chemist‘s report, the government 

presented evidence that the chemist performed three tests whose results led her to 

conclude that the plant-like substance was marijuana: microscopic examination, 

the D-L test, and the GC/MS test. We agree with the government that the 

 

17

 See Minor v. United States, 57 A.3d 406, 421 n.11 (D.C. 2012)

(recognizing that expert testimony must be sufficiently reliable to be admissible). 

Appellant acknowledges that he ―stipulated to the admissibility of the 

government‘s drug analysis.‖ 
31

consistent positive results on each of the tests employed strengthened the 

government‘s evidence and weighs against a reason to doubt.18 We also note that 

the government produced a photograph of the color results of the D-L test, and 

appellant‘s expert did not suggest that the DEA chemist made an interpretation 

error with respect to those results. However, Harris‘s affidavits informed the court 

that the results of each of these tests are ―susceptible to error‖ and have ―an 

associated degree of uncertainty.‖ Specifically, Harris averred that ―other plant 

species unrelated to marijuana share similar morphological characteristics‖ on 

microscopic review; that the D-L test is expected to sometimes yield false 

positives, both because it is a screening test and because the analysts must interpret 

the colors the test produces; and that false positive results can be obtained on the 

GC/MS test because of sample contamination or ―[i]ncorrect or overreaching data 

interpretation.‖ In addition, as discussed above, from her review of the DEA 

chemist‘s worksheets, Harris observed that the chemist ―used the remaining 

portion of another test sample to conduct [the D-L test and that this] is not proper 

 

18

 The substance also field-tested positive for THC. While a field test ―is 

not dispositive‖ and, ―standing alone, cannot prove [the nature of the substance] 

beyond a reasonable doubt,‖ it ―does constitute evidence of the identity of the 

seized substance‖ and can be considered in a determination of whether the 

government‘s evidence ―was overwhelming.‖ Digsby v. United States, 981 A.2d 

598, 605–06 (D.C. 2009) (internal quotation marks and brackets omitted).
32

scientific practice and could result in contamination of the sample prior to the D-L 

test.‖ 

In light of the deviation from ―proper scientific practice‖ Harris alleged, the 

potential for error she identified in each set of test results, and the government‘s 

failure to produce any documents within the categories discussed above —

documents that may bear on the likelihood that the chemist performed her analysis 

in a reliable way — we are unable to assess whether appellant was prejudiced by 

the lack of access to documents he was entitled to access under Rule 16 (a)(1)(E).19 

 

19

 We are mindful of the government‘s assertion (and of the trial court‘s 

comments highlighting) that the defense forwent opportunities to challenge the 

government‘s forensic evidence by, for example, calling Harris to testify at trial or 

engaging a chemist to test the suspected marijuana. But, of course, appellant had a 

―constitutional right to put the government to its proof and not put on a 

defense . . . .‖ Thomas v. United States, 914 A.2d 1, 16 (D.C. 2006). Moreover, 

we are reluctant to decide the issue before us — whether appellant was entitled to 

discovery under Rule 16 (a)(1)(E) — on the basis of whether appellant utilized 

opportunities that could have implicated his privilege against self-incrimination by 

requiring him to disclose information that ―might work to his disadvantage.‖ Fed. 

R. Crim. P. 16 advisory committee‘s note to 1974 amendments (including 

amendments that gave ―greater discovery to . . . the prosecution‖); see also Fed. R. 

Crim. P. 16 (b)(1)(B) (providing that ―[i]f a defendant requests disclosure [of any 

report of a scientific test] under Rule 16 (a)(1)(F) and the government complies, 

the defendant must permit the government, upon request, to inspect and to copy or 

photograph the results or reports of any . . . scientific test or experiment [within the 

defendant‘s possession, custody, or control] if . . . the defendant intends to use the 

item in the defendant‘s case-in-chief at trial, or intends to call the witness who 

prepared the report and the report relates to the witness‘s testimony‖). 

(continued...)
33

Without the SOPs, training and proficiency/performance materials, validation 

studies and temporally relevant audit report(s), and maintenance and calibration 

logs for the GC/MS equipment used in this case, we cannot say whether the 

possible flaw Harris identified was significant enough ―to call in question the 

government‘s proof of the identity of the substances analyzed,‖ Jackson, 768 A.2d 

at 584, or whether the impact ―possibly could be great enough to be helpful to 

appellant,‖ Young v. United States, 63 A.3d 1033, 1056 (D.C. 2013). ―The 

assistance of the trial court [in evaluating prejudice vel non] is therefore 

necessary.‖ Jackson, 768 A.2d at 584. 

V.

For the foregoing reasons, we remand the record to the trial court with 

instructions that (1) the trial court is to reconsider its ruling with respect to the 

validation studies, maintenance and calibration records for the GC/MS equipment

used in this case, and audit reports; (2) the government is to produce, for inspection 

by the court and the defense, any documents falling within those categories the 

 

(...continued)

Accordingly, the forgone opportunities the government highlights do not enter into 

our analysis of prejudice.
34

trial court decides must be produced after reconsidering its ruling, as well as the 

DEA laboratory SOPs and training materials and the DEA chemist‘s proficiency 

examination results and performance evaluations whose production appellant

sought to compel; and (3) after such further proceeding as it deems appropriate, the 

trial court is to make findings relevant to this court‘s ultimate decision as to 

whether the erroneous nondisclosure was prejudicial. 20 This court will, of course, 

after briefing by the parties, ―have [the] . . . last word as to whether or not to 

sustain [appellant‘s] conviction that follow[ed] a trial marred by [the discoveryruling] . . . error[s]‖ described above. Davis, 564 A.2d at 33-34. 

So ordered.

 

20

 The record of the remand proceedings shall be certified by the Clerk of 

the Superior Court to the Clerk of this court.