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volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

Nos. 11-CF-228 & 11-CF-363

ALONZO R. VAUGHN and CARL S. MORTON, APPELLANTS,

 v.

UNITED STATES, APPELLEE.

Appeals from the Superior Court of the 

District of Columbia

(CF2-27306-08, CF2-27160-08)

(Hon. Robert E. Morin, Trial Judge)

(Argued September 18, 2012 Decided July 3, 2014)

Cory L. Carlyle for appellant Alonzo R. Vaughn.

Amanda R. Grier, with whom Saul M. Pilchen was on the brief, for appellant 

Carl S. Morton.

Peter S. Smith, Assistant United States Attorney, with whom Ronald C. 

Machen Jr., United States Attorney, Roy W. McLeese III, Assistant United States 

Attorney at the time the brief was filed, Chrisellen R. Kolb, Mary Chris Dobbie, 

and Reagan Taylor, Assistant United States Attorneys, were on the brief, for 

appellee.

Before GLICKMAN and EASTERLY, Associate Judges, and PRYOR, Senior 

Judge.
2

EASTERLY, Associate Judge: Carl Morton and Alonzo Vaughn appeal their 

convictions for aggravated assault (D.C. Code § 22-404.01 (2012 Repl.)) and 

assault on a law enforcement officer (D.C. Code § 22-405 (c) (2012 Repl.)). Both 

were charged in connection with an incident at the D.C. Jail in which a group of 

men attacked a fellow inmate, Deon Spencer, and a corrections officer who came 

to that inmate‟s aid, Sergeant Charles White. The victims could not identify Mr. 

Morton and Mr. Vaughn; but the incident was recorded by multiple cameras, and,

although these recordings were not exactly movie-quality, two corrections officers 

said they could identify Mr. Morton and Mr. Vaughn in the footage. The 

government presented the testimony of these corrections officers in conjunction 

with the recordings to the jury, and the jury convicted. But unbeknownst to the 

defendants, one of these identifying witnesses, introduced by the government as 

“Officer” Angelo Childs, had a significant credibility issue.

Six months earlier, Officer Childs had filed reports accusing a different 

inmate (“Inmate A”) of assault, thereby providing a potential justification for his 

use of a chemical agent on the inmate. His accusations were investigated by the 

Department of Corrections (DOC) Office of Internal Affairs (OIA). The DOC 

OIA determined in a “Final Report,” that, among other things, video footage of this 

incident did not show the alleged inmate assault. 
3

The OIA Officer who wrote the OIA Final Report about the Inmate A 

incident stated in a sworn affidavit (submitted by the government during post-trial 

proceedings in this case) that he sent the OIA Final Report to the DOC Office of 

the Director, the entity in charge of disciplinary action, and he was later informed 

that the DOC Office of the Director demoted Officer Childs from Lieutenant to 

Sergeant after it received the report. In addition, this OIA Officer, who also 

assisted the government in the investigation of the Spencer-White attacks, stated in 

his affidavit that he “notified the U.S. Attorney‟s Office for the District of 

Columbia of the Investigative Report concerning Lieutenant Childs and his 

subsequent demotion” on September 15, 2009, approximately two months before 

Mr. Vaughn and Mr. Morton‟s trial. 

The government did not disclose this favorable impeaching information to 

the defense. Instead, a week before trial, the government filed a motion in limine 

to preclude the defense from questioning Officer Childs about the misconduct 

detailed in the OIA Final Report. In that motion, the government provided a 

“summary” of the OIA Final Report that gave no indication that the OIA had 

investigated a potentially false allegation of an inmate assault by Officer Childs 

and others and determined that this allegation was false; the government also did 

not reveal Officer Childs‟s resulting demotion. Rather, the government‟s summary 
4

focused exclusively on only a portion of the OIA Final Report that considered 

whether Officer Childs (1) had properly used a chemical agent on the accused 

inmate, who the government (quoting the very portion of Officer Childs‟s Incident 

Report the OIA had discredited) indicated had been acting aggressively, and (2)

had falsely indicated in a report that the inmate was unrestrained. Portraying this 

investigation with skepticism, the government argued that it had little to do with 

Officer Childs‟s credibility because the OIA had determined Officer Childs had 

only “suggest[ed]” that the inmate was unrestrained.

The difference between the government‟s summary of the OIA investigation 

and the actual OIA Final Report almost certainly would have come to light had the 

government provided the trial court with the full copy. It did not. Along with its 

summary, the government submitted to the trial court ex parte what it said was the 

OIA Final Report, but in fact was only the first five pages of the ten-page report 

(and included none of the documents in the appendix, 76 pages in all). The first 

five pages of the OIA Final Report contain “background” information, 

investigative notes, and a full reproduction of Officer Childs‟s account of an 

inmate assault in his Incident Report without any indication that that account was 

being questioned; the findings adverse to Officer Childs begin on the sixth page. 
5

Under Brady v. Maryland, 373 U.S. 83 (1963), the government has a 

constitutionally mandated obligation to disclose to the defense, prior to trial, 

information in the government‟s actual or constructive possession that is favorable 

and material. The government did not fulfill its due process disclosure obligations 

in this case. Moreover, its failure to provide the court and the defense with 

complete and accurate information as to the contents of the OIA Final Report 

thwarted the trial court‟s ability to “require strict compliance with the demands of 

Brady . . . in the first instance.” Boyd v. United States, 908 A.2d 39, 62 (D.C. 

2006). As to Mr. Morton, we reverse his two convictions on this ground and 

remand for a new trial after the government has certified in writing that it has 

fulfilled its duty to learn of and disclose all the favorable information in the 

possession of the United States Attorney‟s Office and the entire the prosecution 

team. As for Mr. Vaughn, we determine that a jury instruction conceded to be 

erroneous by the government requires reversal of his conviction for aggravated 

assault. We reject the remaining claims raised by Mr. Morton and Mr. Vaughn.

I. The Spencer-White Attacks, the DOC Investigation, and Mr. Morton 

and Mr. Vaughn’s Trial

Mr. Morton and Mr. Vaughn were prosecuted for their alleged involvement 

in an attack at the D.C. Jail on a corrections officer, Charles White, but it all began 
6

with an attack on a fellow inmate, Deon Spencer.1 On December 27, 2007, Mr. 

Spencer was in the communal dining area of the Southwest 2 (“SW2”) housing 

unit when an inmate began hitting and kicking him. Corporal James Weathers, a 

corrections officer on duty in SW2, tried to assist Mr. Spencer, but he was 

outnumbered by the many inmates who rushed into the area and joined in the 

attack. Corporal Weathers radioed for help, and “that‟s when everything just broke 

apart.” He described the scene as a “melee.” 

Sergeant White, assigned to the Southeast 2 housing unit, responded to 

Corporal Weathers‟s call for help. As he tried to quell the disturbance, he was 

attacked. Sergeant White was initially pushed onto a dining table, but he 

immediately got back up and moved away from the table. At some point, Sergeant 

White ended up on the floor. Several inmates then kicked him about the head and 

body and knocked him unconscious. As he lay in the walkway, inmates ran back 

and forth through the area, over and around his body. 

 

1

 Bobby Johnson and Lorenzo Woods, Mr. Morton and Mr. Vaughn‟s codefendants at trial, were among those charged with the attack on Mr. Spencer. Mr. 

Woods was acquitted; Mr. Johnson is not a party to this appeal.
7

In the meantime, a number of other corrections officers responded to the 

scene.

2

 The incident ended when a chemical agent was dispersed, forcing inmates 

back into their cells. SW2 went on lockdown. 

Mr. Morton and Mr. Vaughn were not initially identified as participants in 

the attack. The victims, Mr. Spencer and Sergeant White, were unable to identify 

their assailants from the 156 inmates housed on SW2 on the day of the attack. The 

officers who had seen and responded to the attack wrote Incident Reports 

immediately after the incident identifying a number of inmates they had seen 

participating in the violence—many of whom were charged and eventually pled 

guilty in connection with this incident.

3 Mr. Morton and Mr. Vaughn were not 

among these individuals.

 

2

Sergeant Jimmy Harper, the senior officer on duty, succeeded in 

restraining one inmate, but could not recall if he returned to the fray thereafter. 

Officer Tamira Robeson, who was working her first day on the unit and was 

assigned to the “bubble,” the control module for the unit, remained at her post. 

3

See United States v. Wilson, No. 2008-CF2-27313 (D.C. Super. Ct. Oct. 

19, 2009) (guilty plea entered); United States v. Collins, No. 2008-CF2-27154 

(D.C. Super. Ct. Oct. 19, 2009) (same); United States v. Tomlinson, No. 2008-CF2-

27301 (D.C. Super. Ct. Sept. 15, 2009) (same); United States v. Lyles, No. 2008-

CF2-27159 (D.C. Super. Ct. July 9, 2009) (same); United States v. Cheadle, No. 

2008-CF2-27153 (D.C. Super. Ct. June 30, 2009) (same); United States v. AlDelaema, No. 2008-CF2-27146 (D.C. Super. Ct. Mar. 3, 2009) (same). See also

United States v. Owens, No. 2008-CF2-27313 (D.C. Super. Ct. Oct. 14, 2009) 

(charges dismissed).
8

OIA Investigator Benjamin Collins, who led the DOC investigation into this 

incident, sought to identify additional individuals involved in the attacks using

recordings of the incident from fixed cameras capturing images of SW2 from 

different angles. The recordings were of limited utility on their own, however. In 

particular, the footage of the attack on Sergeant White is of extremely poor quality. 

Instead of a seamless “moving picture,” it is a choppy series of still images, 

capturing a chaotic sequence of events only at regular intervals. In addition, the

images are highly pixelated and the faces are, as DOC staff conceded, “blurry.”

4

Accordingly, the DOC set out to find corrections officers who could identify 

individuals in the recorded footage. 

The morning after the attacks, OIA Investigator Collins met with Officer 

Childs.5 Officer Childs had not been on duty the day prior but he had already 

watched some footage of the incident with Officer Harper. Officer Childs told 

 

4

The vast majority of the inmates seen in the recordings are young AfricanAmerican males within a range of average height and build. With the exception of 

one inmate dressed all in white, these inmates were wearing the DOC standardissue one-piece orange jumpsuit. Presumably to facilitate identification, the 

inmates‟ jumpsuits bear armbands with an inmate‟s name and a number assigned 

to the individual inmate, but this identifying information is not visible in the 

videotapes. 

5

 Although his precise rank proved to be a matter of some significance, the 

government generically introduced Mr. Childs as “Officer” at trial and for 

consistency‟s sake we follow suit.
9

OIA Investigator Collins that “he was very familiar with the vast majority of the 

inmates in the unit and that he . . . had named at least 11 inmates who he saw in the 

video that were involved in the altercation.” Apparently he then identified Mr. 

Morton as a participant in the attack on Sergeant White. Several months later OIA 

Investigator Collins brought Officer Childs to the U.S. Attorney‟s Office, at which 

point Officer Childs identified Mr. Vaughn as another participant in this attack. 

OIA Investigator Collins also spoke to Sergeant Harper in the course of his 

investigation. Sergeant Harper ultimately identified Mr. Morton and Mr. Vaughn 

as participants in the attack on Sergeant White as well. 

Beyond Officer Childs‟s and Sergeant Harper‟s identifications of 

participants from the video footage, the record does not reflect that the government 

developed any other evidence against Mr. Morton and Mr. Vaughn. Mr. Morton 

and Mr. Vaughn were each indicted in November 2008 for their alleged 

involvement in the attack on Sergeant White. 

Mr. Morton and Mr. Vaughn went to trial a year later, in November 2009. 

The government argued that Mr. Vaughn was the only inmate dressed all in white

and that he had given Sergeant White “one good shove.” The government argued 

that Mr. Morton was one of the inmates who kicked Sergeant White as he lay on 
10

the floor. In support of these theories, the government presented Officer Childs‟s 

testimony. Explaining his ability to identify Mr. Morton and Mr. Vaughn as 

participants in the attack on Sergeant White, Officer Childs testified that he had 

been working on the unit for over a year, that Mr. Morton and Mr. Vaughn had 

each been on the unit for several months, that he knew them and their facial and 

physical features well, and that he could clearly see them in the video footage and 

in multiple stills taken from the video footage. Although defense counsel was able 

to highlight minor inconsistencies in Officer Childs‟s testimony on crossexamination, Officer Childs‟s testimony was largely unimpeached. 

Sergeant Harper testified after Officer Childs. He could only identify Mr. 

Morton at one point in the recorded footage of the attack on Sergeant White and 

only recognized Mr. Morton in one of several video stills of that attack.

6

 Sergeant 

Harper was impeached with the fact that, despite his claim at trial that he “kn[ew] 

on December 27 that all of [the individuals he identified at trial] were involved,” 

 

6

 Even though Mr. Morton and Mr. Vaughn were not charged with any 

crime in connection with the attacks on Mr. Spencer, Sergeant Harper initially 

identified them as participants in the attack on Mr. Spencer. The government did 

not ask Sergeant Harper to identify Mr. Morton or Mr. Vaughn in the footage of 

that attack.
11

he had not named Mr. Morton or Mr. Vaughn in his initial Incident Report written

December 27. 

In closing, the government made clear that its case turned on the jury‟s 

assessment of the credibility of the DOC officers who had testified and had 

identified the defendants. The government began by asking the jury “to consider 

all of the evidence”: “[t]he video, the documents[,] and importantly the testimony 

that you heard from the Corrections Officers.” The government informed the jury 

that its ultimate task was “to assess the credibility of those officers when they were 

on the stand. That‟s what you‟re asked to do here today.” Specifically addressing 

the identifications made by Officer Childs and Sergeant Harper, the government 

returned to the theme of credibility: “[P]art of your job in this case is to assess the 

credibility of these officers on the stand. . . . Angelo Childs told you repeatedly and 

strongly . . . [t]hat is Alonzo Vaughn and that is Carl Morton. Jimmy Harper, same 

thing.” And the government concluded by “emphasiz[ing] again, this case is . . . 

about your credibility judgments.” It was a winning argument. Even if the jury 

was not convinced by Sergeant Harper‟s somewhat inconsistent and weak 

testimony, it had little or no reason to doubt the testimony of Officer Childs.
12

II. The Brady Claim

Mr. Morton and Mr. Vaughn both argue that there were reasons to doubt 

Officer Childs‟s credibility, but that the government did not timely or accurately

apprise the defense of this information. We return to the facts on record.

A. The Pertinent Facts

1. The OIA Final Report

The following facts are taken from the OIA Final Report. In the spring of 

2009 (as the parties prepared for trial in Mr. Morton and Mr. Vaughn‟s case),

Officer Childs participated in a mission to eliminate contraband at the D.C. Jail. 

Officer Childs, at that time a lieutenant, was a supervising officer on the Search 

and Recovery Team (SRT), along with Major Nora Talley and Lieutenant Gregory 

McKnight. Sergeant David Thomas and his drug-sniffing dog, “Reggie,” also 

assisted with the search for contraband. 
13

In the course of this contraband recovery mission, Inmate A7and his cell 

were searched by members of the SRT. Specifically, Inmate A was strip searched 

in his cell and then restrained and taken by Lieutenant McKnight to the Body 

Orifice Security Scanner (BOSS Chair);

8 meanwhile the drug-sniffing dog 

inspected Inmate A‟s cell. Both before and after his trip to the BOSS Chair, 

Inmate A told Lieutenant McKnight that he was scared of dogs and of the drugsniffing dog in particular. 

Once Inmate A returned from the BOSS Chair, Lieutenant McKnight left 

him, still in restraints, standing near the bubble in the presence of Officer Childs 

and Major Talley. At this point, Inmate A “stated emphatically that he would not 

go anywhere near the canine.” Although the protocol for the contraband recovery 

mission did not include using the drug-sniffing dog to inspect inmates, Officer 

Childs grabbed Inmate A‟s arm and signaled to Officer Thomas to bring the dog 

over to Inmate A. As the dog approached, Inmate A tried to back away but Officer 

Childs “halted his movement.” Inmate A “stomped his foot in the direction of the 

canine”; Officer Childs “responded by placing his container of chemical agent near 

 

7

 We retain the trial court‟s and parties‟ convention of calling this individual 

“Inmate A.”

8 A BOSS Chair detects metal objects secreted inside a person‟s body. 
14

[Inmate A‟s] face.” Sergeant Thomas then “positioned” the dog behind [Inmate A]

and “placed his right hand against the lower calves and then on the lower back of 

[Inmate A].” The dog “followed with his muzzle where Sergeant Thomas placed 

his hand.” The dog “stood up on his hind legs and attempted to rest his paws on 

[Inmate A‟s] back.” Inmate A recoiled from this contact, but “his movement was

impeded when Lieutenant Childs, who maintained physical control of [Inmate A], 

sprayed a single burst of chemical agent directly into [Inmate A‟s] face.”

That same day, Officer Childs prepared an Incident Report explaining the 

reason for his use of force and a Disciplinary Report accusing Inmate A of “Lack 

of Cooperation [and] assault without serious injury.” In both reports, Officer 

Childs asserted that Inmate A had “refuse[d] to be search[ed] by the [dog]” and 

had “started kicking at” the drug-sniffing dog and that Officer Childs had sprayed 

the chemical agent in Inmate A‟s face to “seize [sic] his disruptive behavior.” 

Officer Childs then stated in the Incident Report that Inmate A was “placed in 

restraints” and escorted out of the unit, thereby effectively stating that Inmate A 

had previously been unrestrained. Officer Childs concluded his Incident Report 

with the assertion that “[t]his incident stemmed from the violent/disruptive 

behavior of [Inmate A].” Major Talley and Sergeant Thomas also filed reports in 

which they told a similar narrative of Inmate A‟s unprovoked, aggressive behavior.
15

According to the OIA Final Report, video footage contradicted all of these 

reports. Four days after this incident, at the request of the Director of the DOC, the 

OIA opened a formal investigation. The lead investigator was Benjamin Collins, 

the same OIA investigator who had led the inquiry into the Spencer-White attacks 

and had brought Officer Childs to the U.S. Attorney‟s Office so that he could serve 

as a witness. After OIA Investigator Collins completed his investigation, the OIA 

issued the Final Report on June 27, 2009.

The OIA Final Report is ten pages long and includes appendices totaling 76 

pages.9 The first five pages of the OIA Final Report contain “background” 

information, investigative notes, and a full reproduction of Officer Childs‟s 

account, in his Incident Report, that Inmate A had tried to thwart a legitimate 

search for contraband and acted with unprovoked aggression. The findings 

adverse to Officer Childs and his colleagues do not begin until page six. At that 

 

9

 The appendices include Officer Childs‟s Incident Report explaining his 

use of a chemical agent and his Disciplinary Investigative Report formally 

accusing Inmate A of “assault without serious injury”; it also includes reports from 

Major Talley, Sergeant Thomas, and Lieutenant McKnight, a “Letter of Direction” 

from Major Talley to Officer Childs, see infra note 10, and three DOC Program 

Statements addressing (1) use of force and application of restraints, (2) the policies 

of the canine unit, and (3) the Employee Code of Ethics and Conduct. 
16

point, the OIA memorialized its determination that Inmate A had not—as Officer 

Childs had claimed—engaged in “disruptive behavior” necessitating use of force. 

Specifically, the report states that “[v]ideo footage of the incident does not support 

the allegation that [Inmate A] assaulted any Correctional Officer or canine.” On

subsequent pages, the report reviewed and then similarly discredited the stories 

told by Sergeant Thomas and Major Talley. With respect to Major Talley‟s report, 

the OIA determined that “[v]ideo footage. . . does not depict any malicious 

aggressive behavior towards the canine or any staff member by [the] inmate. . . , 

and therefore contradicts Major Talley‟s written account.” With respect to 

Sergeant Thomas, the OIA likewise determined that notwithstanding his assertions 

that Inmate A “kick[ed] at” the dog, “video footage capturing this occurrence on 

the tier shows no contact or direct interaction between [Inmate A] and canine 

Reggie.”

The OIA Final Report further notes that, although Officer Childs‟s 

“narrative suggests that at the time of the incident, [Inmate A] was not restrained,” 

“[u]pon review of the facts and circumstances of this incident, it is evident that 

[Inmate A] was in restraints and not a threat to „normal operations‟ when he was 

sprayed with chemical agent by Lieutenant Childs.” In other words, the OIA 

determined that, to the extent the false story of an inmate assault was meant to 
17

justify the use of a chemical agent to subdue Inmate A, it failed not only because it 

was false, but also because it did not account for the fact that Inmate A was already 

restrained.10 

The OIA Final Report concludes with four summary “Findings” reiterating

that Officer Childs “us[ed] . . . a chemical agent on a restrained inmate who posed 

no immediate danger to himself or others” thereby violating the DOC “use of force 

continuum”; that he “submitted a false and or misleading Incident Report of the 

facts in stating that the inmate was placed in restraints after being sprayed with 

chemical agent” and that Major Talley and Sergeant Thomas had also filed “false 

and[/]or misleading” Incident Reports asserting that Inmate A had attempted to 

kick the drug sniffing dog and tried to “fight” Officer Childs.

11

 

 

10

 The OIA Final Report acknowledges that Major Talley issued Officer 

Childs a Letter of Direction reprimanding him for “Neglect of Duty and 

Incompetence” in connection with his use of a chemical agent on Inmate A when 

Inmate A was “restrained from the rear, and posed no immediate threat.” But the 

OIA Final Report indicates that this Letter of Direction was deficient because 

Major Talley, who herself had submitted a report recounting Inmate A‟s alleged 

aggression, “did not [c]ite Lieutenant Childs for submitting a false and[/]or 

misleading Incident Report.” Instead she, like Officer Childs, adopted the 

narrative that Inmate A had been “combative.”

11

 Although these “Findings” highlight that Officer Childs “submitted a 

false and[/]or misleading Incident Report” in relation to whether Inmate A was 

restrained at the time Officer Childs sprayed him in the face with a chemical agent, 

the body of the report as a whole makes clear that all three officers told a similar 

(continued...)
18

The OIA merely conducts investigations; it does not recommend disciplinary 

action. Thus, according to the affidavit by OIA Investigator Collins later filed in 

this case by the government, see infra p. 25, after the OIA Final Report was 

completed, he sent it to the DOC‟s Office of the Director. Again according to 

Investigator Collins‟s affidavit, the Office of the Director of the DOC issued to 

Officer Childs “formal and written notification” on August 26, 2009, that he had 

been demoted from Lieutenant to Sergeant. It was Investigator Collins‟s

understanding that Officer Childs had signed this notice,

12 and that Officer Childs‟s 

demotion became effective September 13, 2009. OIA Investigator Collins stated in 

his affidavit that “[o]n September 15, 2009, [he] notified the U.S. Attorney‟s 

 

(...continued)

story about Inmate A acting aggressively and assaulting Officer Childs and the dog 

that the OIA determined was untrue. 

12

 Discipline of DOC employees is governed by the Comprehensive Merit 

Personnel Act, D.C. Code §§ 1-616.51 to -.54 (2012 Repl.). Implementing 

regulations require the agency to give such notice and the employee to 

acknowledge it. See 6-B DCMR § 1601.1 (2008) (covered employees may not be 

subject to discipline, including “reduc[tions] in grade” “except as provided in this 

chapter”); 6-B DCMR § 1614.1 (2004) (“employee shall be given a notice of final 

decision in writing . . . informing him . . . of the reasons” for corrective or adverse 

action); 6-B DCMR § 1614.4 (2004) (notice shall be delivered to employee “on or 

before the time the action is effective”); 6-B DCMR § 1614.5 (2004) (employee 

“shall be asked to acknowledge its receipt”).
19

Office for the District of Columbia of the [OIA Final Report] concerning [then] 

Lieutenant Childs and his subsequent demotion.” 

2. The Government’s Nondisclosure

The government did not turn over the OIA Final Report to the defense prior 

to the November 2009 trial, nor did it disclose to the defense that it had 

information Officer Childs had been demoted by DOC in connection with the 

incident with Inmate A. Instead, less than a week before trial began, the 

government, represented by the two Assistant United States Attorneys who 

prosecuted the case, filed (1) a motion in limine to prevent the defense from crossexamining Officer Childs on any issue related to the OIA Final Report, and (2) an 

accompanying ex parte motion requesting that (a) the court review in camera the 

first five pages of the ten-page report (“the five-page ex parte submission”), and 

(b) the court permit the government to file this attachment under seal. The 

government did not inform the court that the five-page ex parte submission was not 

the complete OIA Final Report or that it was missing its appendices.13 

 

13

 To a reader unfamiliar with the full report, it is not obvious that the fivepage excerpt is incomplete. No text is cut off mid-sentence; rather, the bottom of 

the fifth page reaches what might be considered a stopping point after reproducing 

Officer Childs‟s account of Inmate A‟s alleged assault from his Incident Report. 
20

The government‟s stated goal in filing its motion in limine was “to preclude 

the defense from referring to the fact DOC Office of Internal Affairs may have

made potentially adverse credibility findings” against Officer Childs. The 

government told the court and the defense that the OIA “investigation resulted in 

two findings related to Officer Childs: (1) Officer Childs‟ use of force violated 

DOC policy and (2) Officer Childs submitted a false or misleading statement in 

reciting the facts,” specifically, that “DOC Internal Affairs found that Officer 

Childs‟ statement that Inmate A was placed in handcuffs after being sprayed with a 

chemical agent was false or misleading.” The government pushed back against the 

second of these “two findings” and refused to “conced[e],” that Officer Childs “in 

fact made a false and/or misleading statement.”

To support this position, the government provided the court and the defense

with a “summary of an incident . . . in which DOC Internal Affairs issued a Final 

Report.” This summary, however, did not mention that the OIA had determined 

that Officer Childs and his fellow corrections officers had falsely accused Inmate 

A of assault. Instead the government‟s summary indicated that Inmate A had acted 

aggressively. The government noted that there had been a “heated discussion 

between Inmate A and Officer Childs,” and that Officer Childs had thought Inmate 
21

A was engaging in a “deliberate attempt . . . to circumvent the search process.” 

The government then quoted the OIA Final Report‟s reproduction of Officer 

Childs‟s (discredited) account of the incident in which he stated that when he and 

his colleagues “attempted to search [Inmate A], [Inmate A] started kicking at the 

dog” and then stated that “Because [Inmate A‟s] actions interfered with the normal 

operations of the facility, I sprayed one burst of chemical agent . . . [and] then

instructed [Inmate A] to seize [sic] his disruptive behavior.”

The government not only credited a narrative of inmate aggression that the 

OIA had expressly discredited without disclosing that fact, thereby providing an 

incomplete recapitulation of the content of the OIA Final Report, it also cast doubt 

on the report even as to its purported focus—namely, whether Officer Childs had 

falsely indicated in reports that the inmate was unrestrained when Officer Childs 

sprayed him with a chemical agent. The government asserted that the text of 

Officer Childs‟s report was “ambiguous at best” and that “it is not apparent that 

[Officer Childs] lied in his report.” The government further stated that “[t]he 

conclusion that Officer Childs made a false or misleading statement is at odds with 

the body of the [Final OIA Report] and does not appear evident from the text of 

Officer Childs‟s [Incident Report].”
22

The government buttressed its intimations that the OIA investigation was 

unreliable when it argued its motion on the first day of trial. Although the 

government acknowledged that it “expect[ed] [Officer Childs] to say that he [had 

been] demoted related to this incident,” it immediately undercut the force of this 

new disclosure by indicating that Officer Childs had had little opportunity to 

address or contest the report; indeed, the government asserted that Officer Childs

“ha[d] never seen” the OIA Final Report, and thus he would not be able to speak to 

“the particulars.” Based on its description of the OIA Final Report as limited in 

scope and undependable in outcome, the government took the position that the 

April 2009 incident did not “bear[] directly upon” Officer Childs‟s veracity and 

thus was not the proper subject of cross-examination. 

The trial court relied on the government‟s representations regarding the OIA 

Final Report, and it denied repeated requests by the defense14 during the trial for 

disclosure of the actual report. Without the actual report, the defense had no 

ability to call the government‟s characterization of the report into question or to 

 

14

 Counsel for Mr. Woods played the lead role in advocating for disclosure 

of the OIA Final Report to the defendants.
23

persuade the court to order its disclosure.

15

 The court itself was in no position to 

assess the adequacy of the government‟s summary of the OIA investigation. The 

court had the government‟s five-page ex parte submission, but that incomplete 

document concluded with Officer Childs‟s (subsequently discredited) account of 

the incident with Inmate A; thus it said even less about Officer Childs‟s 

misconduct than the government‟s summary did.

Mr. Morton and Mr. Vaughn did not receive a copy of the OIA Final Report 

until three months after trial, in February 2010, after they had already moved for a 

new trial on other grounds.16 In a “Supplemental Motion for a Judgment of 

 

15

 At the pretrial hearing, the trial court briefly considered ordering the 

government to disclose the report subject to a protective order, but it abandoned 

this option at the behest of the prosecution. The government asserted that, with 

respect to the other corrections officers named in the report, “there are employment 

issues,” and that it did not “believe that there is anything in the report that wasn‟t 

disclosed in the motion [to limit cross-examination of Officer Childs].” 

16

 Mr. Morton and Mr. Vaughn initially moved for a judgment of acquittal 

or in the alternative a new trial arguing, among other things, that their Sixth 

Amendment right to confrontation had been violated when they were denied a 

“meaningful” opportunity to cross-examine Officer Childs about the OIA Final 

Report. At a February 3, 2010 status hearing on that motion, the court ordered the 

government to disclose the full OIA Final Report pursuant to a protective order 

(the very procedure the government had successfully opposed during trial). The 

government subsequently disclosed the ten-page Final Report to the defense, but 

did not attach any of the appendices, apparently because the prosecutors did not 

have them; they had never asked DOC for a copy of the complete OIA Final 

Report with all of its attachments. 
24

Acquittal and, in the Alternative, Defendant‟s Motion for a New Trial,” the defense 

argued that the government had violated its pretrial disclosure obligations under 

Brady. Sentencing was delayed and a series of hearings over a period of months 

followed. 

During this time, the government took no steps to inform the court that the 

five-page ex parte submission had been incomplete. The court was left to figure 

this out by itself, in the midst of a status hearing two months after the defense filed 

its Brady claim. When the court was shown the defense copy of the OIA Final 

Report, which included all ten pages, the court noted that the final pages looked 

unfamiliar. The government initially could not “represent what may . . . have 

happened.” It later informed the court that it had failed to provide the court with 

the full OIA Final Report “by inadvertence.” Even so, the government asserted 

that the “erroneously omitted portion” of the OIA Final Report changed nothing. 

Instead the government asserted that it had “fully disclosed and discussed” in its 

motion in limine “all of the information detailed in pages six through nine” of the 

report. 

Even after the court and the defense received complete copies of the OIA 

Final Report, the government stood by its characterization of the OIA investigation
25

as one solely concerned with Officer Childs‟s use of force and his alleged false 

reporting related to the use of force. It further denied that it was “aware” that 

Officer Childs had ever been formally disciplined in connection with this alleged 

misconduct. The government took the position that Officer Childs had “accepted a 

voluntary demotion” as an informal resolution to an inconclusive investigation

regarding “allegations of false and/or misleading statements,” and that the only 

formal discipline Officer Childs had received in connection with the Inmate A 

incident was the Letter of Direction for improper use of force issued by Major 

Talley.

17

 

Almost a year after the defense filed its supplemental motion for a new trial 

raising a Brady claim, the government filed a document that could have clarified 

matters: the affidavit from OIA Investigator Collins.

18

 In this affidavit, OIA 

 

17

 When asked by the court at one post-trial hearing if this Letter of 

Direction “summarized aspects of the report,” the government answered, “that‟s 

correct,” even though the Letter of Direction was issued before the commencement 

of the OIA investigation and even though the OIA Final Report specifically 

determined that the Letter of Direction was inadequate because it failed to 

discipline Officer Childs for making a false report. See supra note 10.

18

 By this time, the trial court had figured out that, based on the dates, Major 

Talley‟s Letter of Direction to Officer Childs could not summarize the OIA Final 

Report and directed the government to provide it with more information about 

what happened to Officer Childs after the completion of the OIA Final Report. 

Presumably, this is why the government filed OIA Investigator Collins‟s affidavit. 
26

Investigator Collins explained that (1) Major Talley‟s Letter of Direction did not 

“supersede or impede” the OIA investigation; (2) He “officially completed” the 

OIA Final Report “[o]n June 27, 2009 . . . and forwarded it to Office of the 

Director for the DC Department of Corrections,” because the DOC OIA does not,

“as a matter of routine or in this specific case. . . recommend disciplinary action”; 

(3) “Several months after the completion of [the OIA Final Report] [he] was 

verbally informed that Lieutenant Childs was demoted to the rank of Sergeant as a 

result of his actions on April 7, 2009”; and (4) “On September 15, 2009, [he] 

notified the U.S. Attorney‟s Office for the District of Columbia of the [OIA Final 

Report] concerning Lieutenant Childs and his subsequent demotion.” OIA 

Investigator Collins also stated that he acquired (in January 2011) more details 

about Officer Childs‟s demotion. Specifically, he learned that Officer Childs had 

“received formal and written notification of his demotion on August 26, 2009 . . . 

from the Office of the Director of the Department of Corrections and [that this 

notification] was signed by Lieutenant Childs.” OIA Investigator Collins also 

learned from “a DC Department of Corrections, Human Resources Specialist” that 

Officer Childs had been “formally demoted . . . on September 13, 2009.” The

government, however, filed this affidavit, without any accompanying explanation, 

after more than a year of post-trial litigation in this case, and it never 
27

acknowledged that OIA Investigator Collins‟s sworn statements contradicted its 

earlier representations. 

When the parties returned to court a week after this filing, the court ruled on 

the defendants‟ supplemental motion for a new trial. The court determined that 

there had never been a “finding of untru[th] telling against Officer Childs.” The 

court further determined that the affidavit “essentially vindicates” that, “although 

the Internal Affairs Division did do an investigation of Officer Childs, no report 

was issued by that office and no action was taken by that office.” Accordingly, the 

trial court denied the motion from the bench “for the reasons stated in the 

government‟s opposition” to the defendants‟ motion.

19

 

19

 The trial court also referred to the unpublished memorandum opinion 

affirming co-defendant Bobby Johnson‟s conviction. See Johnson v. United States, 

No. 10-CF-205, Mem. Op. & J. (D.C. Mar. 9, 2011). The government has argued 

on appeal that that opinion is “instructive” if not dispositive of Mr. Morton and Mr. 

Vaughn‟s Brady claim. We disagree. Setting aside that the panel chose not to 

publish its disposition, the panel in that case considered a different issue (Mr. 

Johnson‟s assertion that his right to confront Officer Childs had been violated) on a 

very different record (the panel never had the benefit of the post-trial revelations 

that were made in this case). 
28

B. Brady Analysis 

Our adversarial system is premised on the belief that “[s]ociety wins not 

only when the guilty are convicted but when criminal trials are fair.” Brady, 373 

U.S. at 87. Prosecutors have a critical role in ensuring the fairness of criminal 

trials. They are the representative of the sovereign, whose “interest . . . in a 

criminal prosecution is not that it shall win a case, but that justice shall be done.” 

Berger v. United States, 295 U.S. 78, 88 (1935); see also Miller v. United States, 

14 A.3d 1094, 1107 (D.C. 2011) (explaining that prosecutors must “seek justice 

before victory”). Prosecutors are thus obligated to play a dual role at trial; they 

must advocate for the government “with earnestness and vigor,” Berger, 295 U.S. 

at 88, but they also have an obligation under Brady “to assist the defense in making 

its case.” United States v. Bagley, 473 U.S. 667, 675 n.6 (1985). In this “limited 

departure from a pure adversary model,” id., prosecutors have a constitutionally

imposed duty to disclose to the defense pretrial information that is “favorable to an 

accused . . . [and] material either to guilt or to punishment.” Brady, 373 U.S. at 87. 

To determine on appeal whether the government, through its representatives 

in the trial court, has violated its obligations under Brady, we consider: (1) 

whether the information in question is “favorable to the accused”; (2) whether this
29

information was possessed and suppressed by the government, “either willfully or 

inadvertently”; and (3) whether that information was material, i.e., whether there is 

“a reasonable probability that, had the evidence been disclosed, the result of the 

proceeding would have been different.” Miller, 14 A.3d at 1109. If the 

information was favorable, suppressed, and material, then reversal is required, 

“irrespective of the good faith or bad faith of the prosecution.” Brady 373 U.S. at 

87. 

Reviewing the trial court‟s legal conclusions de novo and its underlying 

findings of fact for clear error, Miller, 14 A.3d at 1120, we consider each criterion

for a Brady violation in turn.

1. Favorable Information Subject to Disclosure

At least in the abstract, it is easy to articulate what constitutes “favorable”

information subject to disclosure under Brady. It is information “of a kind that 

would suggest to any prosecutor that the defense would want to know about it” 

because it helps the defense. See Miller, 14 A.3d at 1110 (quoting Leka v. 

Portuondo, 257 F.3d 89, 99 (2d Cir. 2001)). The defense perspective controls. See 

id. (“[T]he critical task of evaluating the usefulness and exculpatory value of the 
30

information is a matter primarily for defense counsel, who has a different 

perspective and interest from that of the police or prosecutor.” (quoting Zanders v. 

United States, 999 A.2d 149, 164 (D.C. 2010))). 

Favorable information includes impeaching information. See Giglio v. 

United States, 405 U.S. 150, 154-55 (1972). Indeed, although the Supreme Court 

held in Bagley, 473 U.S. at 676, that the failure to disclose impeaching information 

is not “more egregious” than a failure to disclose affirmatively exculpatory 

information, both the Supreme Court and this court have repeatedly made clear that 

impeaching information does not have a lesser standing in the context of the 

government‟s Brady disclosure obligations. Rather, “[t]he jury‟s estimate of the 

truthfulness and reliability of a given witness may well be determinative of guilt or 

innocence.” Bagley, 473 U.S. at 676 (quoting Napue v. Illinois, 360 U.S. 264, 269 

(1959)); see also Bennett v. United States, 797 A.2d 1251, 1256 (D.C. 2002) 

(“Impeaching evidence is exculpatory.” (internal quotation marks omitted)).

In this case, whether favorable information existed that was subject to 

disclosure under Brady turns on how one characterizes the OIA investigation and 

its outcome. When the trial court denied Mr. Morton‟s and Mr. Vaughn‟s motion

for a new trial, it accepted the government‟s representations that (1) the OIA 
31

investigation concerned Officer Childs‟s use of force and alleged false reporting 

related to his use of force, and (2) Officer Childs‟s demotion was something more 

in the nature of an administrative plea deal to resolve an inconclusive inquiry that 

ultimately was unrevealing regarding Officer Childs‟s credibility. As an appellate 

court, we ordinarily defer to the trial court‟s findings of fact, unless those findings 

are clearly erroneous. See Miller, 14 A.3d at 1120. Here, record documents, the

OIA Final Report and OIA Investigator Collins‟s affidavit, contradict the court‟s 

findings. We recognize that the trial court was constrained in its ability to assess 

these documents by the government‟s late production and continued 

misrepresentation or nondisclosure of the information in its possession. Unlike the 

trial court, however, we have had, from the outset of our review, the entire OIA 

Final Report with its appendices. With these advantages that the trial court did not 

share, we conclude that the trial court was misled and that its adoptive fact-finding 

was clearly wrong. 

Although the purpose of the OIA investigation as articulated in the OIA 

Final Report was “to identify the facts and circumstances regarding the use of [a 

chemical agent] by Lieutenant Angelo Childs” in April 2009, the report itself

reveals that the investigation went beyond an inquiry into whether Officer Childs 

complied with use-of-force guidelines. Ultimately, the OIA determined that
32

Officer Childs and his fellow DOC Officers had falsely accused Inmate A of 

assaultive behavior, and they had all filed false reports to this effect. The OIA also

determined that Officer Childs falsely suggested that the inmate was unrestrained 

and Officer Childs sprayed him with a chemical agent to stop the (fabricated) 

assault. OIA Investigator Collins‟s affidavit completes the story. The inescapable 

inference is that the Office of the Director credited all the conclusions of the OIA 

Final Report and as a consequence meted out significant discipline by demoting 

Officer Childs from Lieutenant to Sergeant.

20

 

Once we clarify the actual subject and the apparent outcome of the OIA 

investigation, the determination that this information was favorable information 

subject to disclosure under Brady is not difficult. The OIA‟s determination of 

Officer Childs‟s false reporting was clearly impeaching, and was the sort of 

information in which any competent defense lawyer would have been intensely 

 

20

 The government has never denied that Officer Childs was demoted in 

connection with the Inmate A incident detailed in the OIA Final Report; it simply 

presented the contents of that report as something other than they are. One might 

try to argue that Officer Childs‟s demotion may have been related to only some but 

not all of the misconduct actually found by the OIA (e.g., the improper use of force 

but not the false reporting). But such an argument would be unpersuasive as 

Officer Childs had already been disciplined (via the Letter of Direction) for his 

improper use of force, and the submission of false reports—in particular reports 

falsely accusing an inmate of criminal conduct—are hardly insignificant. 
33

interested. See Milke v. Ryan, 711 F.3d 998, 1007 (9th Cir. 2013) (“That [a law 

enforcement officer] was disciplined for lying on the job obviously bears on his 

credibility and qualifies as Giglio evidence.”).

Of course the favorability of the OIA Final Report does not turn on its 

ultimate truth or the government‟s assessments thereof. The government could not 

withhold this information because it did not trust the conclusions of the OIA Final 

Report, or because it did believe its witness, Officer Childs, who professed 

innocence of false reporting21 and asserted ignorance of the reason for his 

discipline.

22 As we said in Zanders and Miller, “[i]t is not for the prosecutor to 

decide not to disclose information that is on its face exculpatory based on an 

assessment of how that evidence might be explained away or discredited at trial, or 

ultimately rejected by the fact finder.” Miller, 14 A.3d at 1110 (quoting Zanders, 

999 A.2d at 164); see also Smith v. Cain, 132 S. Ct. 627, 630 (2012) (holding that a 

 

21

 See infra pp. 46-47.

22

 We note that the documentation of the notice of this action that Officer 

Childs should have received, see supra note 12, is not in the record. But the record 

does include OIA Investigator Collins‟s sworn statements giving the specific dates 

on which notice was issued and became effective and affirming his understanding 

that Officer Childs signed this notice, thus indicating that the requisite notice 

requirements were followed. We further note that in conformance with these 

regulations Officer Childs was given notice (which he signed) of the far less 

consequential (and subsequently deemed inadequate) Letter of Direction issued by 

Major Talley. 
34

witness‟s inconsistent statements were subject to disclosure notwithstanding 

government‟s “argument . . . that the jury could have disbelieved [the] undisclosed 

statements”).

2. The Government Suppressed Favorable Information in its 

Possession.

When the government possesses favorable information subject to disclosure 

under Brady, it has an obligation to disclose this information to the defense in a 

timely and complete manner. In this case, there is nothing in the record to indicate 

that the government ever responded to the Brady request made by the defense

months before trial23 or that it volunteered Brady information to the defense in the 

typical manner by sending the defense a disclosure letter. Ultimately, the defense 

did not obtain a copy of the OIA Final Report until three months after trial, albeit 

without the appended material, and it was not given OIA Investigator Collins‟s 

 

23

 Coincidentally, counsel for Mr. Morton made a Brady request for, inter 

alia, any “information which tends to show a government witness‟ bias or 

corruption . . . or which otherwise impeaches the witness‟ testimony” on April 10, 

2009, one day before the OIA investigation into Officer Childs‟s false reporting 

began. But whether or not defense counsel made a Brady request, the government 

had an independent obligation to disclose the favorable information in its 

possession. See United States v. Agurs, 427 U.S. 97, 107 (1976).
35

affidavit until over a year after trial, a week before the trial court ruled on its posttrial Brady claim. Nevertheless, the government argues that it fulfilled its 

disclosure obligations when it filed, a week before trial, its motion in limine to 

preclude cross-examination of Officer Childs about the OIA Final Report and 

provided a “summary of the complete Final Report.” We cannot agree. 

To begin with, there was nothing about the motion in limine that put the 

defense on notice that the government was disclosing Brady information. The

motion never cited Brady, much less indicated that the government was attempting 

“to assist the defense in making its case.” Bagley, 473 U.S. at 675 n.6. Instead, 

the object of the motion in limine was to preclude defense cross-examination of a 

government witness. This is not an elevation of form over substance. As we said 

in Miller, Brady does not authorize the government to engage in a game of hideand-seek, or require the defense to “scavenge for hints of undisclosed Brady

material.” 14 A.3d at 1113 (quoting Banks v. Dretke, 540 U.S. 668, 695 (2004)). 

But that is precisely what the defense was forced to do in this case. Thus, at his 

first opportunity to address the court about the government‟s motion in limine,

defense counsel told the court that he was “just basically hitting in the dark” and he 

was “not sure what the finding [of the DOC OIA] says”:
36

[I]f I hadn‟t read the motion closely, I wouldn‟t even have known 

[that the government might possess Brady information]. It wasn‟t as 

if [the prosecutors] called me and told me, I have a report you need to 

see. I just got this in the motion, and the motion, ironically, was to 

actually suppress or limit the use of this information while it‟s being 

given to me, even though it wasn‟t really being given to me; it was 

just being alluded to or stated, but it‟s—I don‟t have the actual report 

to this day.

In any event, the government‟s disclosure was not timely, accurate, or 

complete. Accordingly, we conclude that the government suppressed favorable 

information in its possession. 

a. As a Brady Disclosure, the Motion in Limine Was Not

Timely

The government‟s obligation to make timely disclosures is grounded in the 

very reason Brady disclosures are required: to provide protection against 

miscarriages of justice. Miller, 14 A.3d at 1107. The goal of ensuring that our 

“adversary system of prosecution [does not] descend to a gladiatorial level 

unmitigated by any prosecutorial obligation for the sake of truth,” Kyles v. Whitley, 

514 U.S. 419, 439 (1995), is not achieved by last-minute information dumps. 

Rather, where disclosure of Brady is concerned, there is no time for strategic delay 

and “as soon as practicable” should be the approach. See Miller, 14 A.3d at 1108

(explaining that “a strategy of delay and conquer . . . is not acceptable” (internal 
37

citation and quotation marks omitted)); see also id. at 1111 (rejecting the rationale 

that “better late than never” is good enough and endorsing the ABA standards 

requiring Brady disclosure “at the earliest feasible opportunity . . . as soon as 

practicable following the filing of charges” (internal quotation marks omitted)).

Certainly, Brady disclosures are required “well before the scheduled trial date,” 

Zanders, 999 A.2d at 164; Perez v. United States, 968 A.2d 39, 66 (D.C. 2009) 

(Brady requires “timely, pretrial disclosure”). Only in this way can we ensure 

“defense counsel [has] an opportunity to investigate the facts of the case and, with 

the help of the defendant, craft an appropriate defense.” Perez, 968 A.2d at 66; see 

also Miller, 14 A.3d at 1111 (“[A]s we have repeatedly recognized, exculpatory 

evidence must be disclosed in time for the defense to be able to use it effectively, 

not only in the presentation of its case, but also in its trial preparation.”); Boyd, 908 

A.2d at 57 (“[T]imely disclosure . . . can never be overemphasized.”). 

By no means can the government‟s motion in limine constitute a timely 

pretrial disclosure of the information it possessed about Officer Childs‟s discipline 

as a result of the OIA investigation. The motion in limine provided no information 

on this subject although—according to the affidavit from OIA Investigator Collins 

that the government filed with the court—the “U.S. Attorney‟s Office” was 

informed of the OIA Final Report “concerning Lieutenant Childs and his 
38

subsequent demotion” nearly two months before the government filed this motion.

The government did not reveal that Officer Childs had been demoted until the first 

day of trial, when it briefly noted that Officer Childs was demoted “related to” the 

April 2009 incident that it had incompletely summarized in its motion in limine. 

The government did not provide any further details about when or how this 

discipline had been imposed until it filed OIA Investigator Collins‟s affidavit 

thirteen months after trial. 

But the government‟s disclosure obligations were triggered well before the 

DOC decided to demote Officer Childs. The government had an obligation to 

notify the defense that Officer Childs was under investigation by the DOC OIA. 

See United States v. Bowie, 198 F.3d 905, 908 (D.C. Cir. 1999) (determining that 

the prosecution had a duty to disclose the fact that one of its police officer 

witnesses had become “the subject of an investigation into the truthfulness of his 

testimony” in another case); see also Bullock v. United States, 709 A.2d 87, 92-93

(D.C. 1998) (remanding to trial court to develop record on whether government 

should have disclosed that testifying law enforcement officer was under 

investigation). As to the OIA investigation, which began in April 2009 and 
39

concluded in June 2009, the government‟s motion in limine, filed a week before 

the November 2009 trial, was not an “as soon as practicable” Brady disclosure.24

Accepting for the sake of argument the government‟s assertion that its 

motion in limine filed a week before trial was a Brady disclosure, the belatedness 

of this filing is not excused by the government‟s representation to the trial court 

that it did not learn of the DOC OIA investigation and its resulting report until 

“late summer.” Brady does not tolerate the “government[‟s] failure to turn over an 

easily turned rock.” United States v. Brooks, 966 F.2d 1500, 1503 (D.C. Cir. 

 

24

 That this information was impeaching does not diminish the 

government‟s obligation to learn of and disclose this information in a timely 

manner. No less than exculpatory information, the defense is entitled to make 

thoughtful, effective use of impeaching information in the preparation of its case. 

See Miller, 14 A.3d at 1112 (explaining that the opportunity for use of favorable 

information guaranteed by Brady is the “opportunity for a responsible lawyer to 

use the information with some degree of forethought” (quoting Leka, 257 F.3d at 

103)). The revelation that a witness may be untrustworthy or lying may open up 

new investigative avenues and require the contemplation of different strategies at 

trial. See, e.g., Sykes v. United States, 897 A.2d 769, 777-78 (D.C. 2006). 

Moreover, where, as here, the government disputes the meaning or value of the 

information it possesses, time must be afforded, well before trial, to litigate the 

government‟s disclosure obligations. As this case demonstrates, doing so on the 

eve of trial puts the defense at a strategic disadvantage and compromises the 

court‟s ability to thoughtfully assess the information at issue. See Miller, 14 A.3d 

at 1111 (discussing the difficulty of integrating Brady information on the eve of 

trial and noting that “[t]he defense may be unable to divert resources from other 

initiatives and obligations that are or may seem more pressing” (quoting Leka, 257 

F.3d at 101)). 
40

1992). “[T]he individual prosecutor has a duty to learn of any favorable evidence 

known to the others acting on the government‟s behalf in the case.” Kyles, 514 

U.S. at 437; see also Robinson v. United States, 825 A.2d 318, 324 (D.C. 2003)

(“[T]here is a duty to search branches of government „closely aligned with the 

prosecution.‟”). In this case, OIA Investigator Collins—the same investigator who 

investigated Officer Childs—was working closely with the U.S. Attorney‟s Office 

on the Spencer-White Case and had identified Officer Childs as central to the 

investigation of the Spencer-White attacks. For such an important witness so 

closely tied to the investigation, the government should have had the systems in 

place to ensure that it was alerted immediately about impeaching information. See 

Kyles, 514 U.S. at 419, 438 (observing that “the prosecutor has the means to 

discharge the government‟s Brady responsibility if he will,” and that “procedures 

and regulations can be established to carry [the prosecutor‟s] burden and to insure 

communication of all relevant information on each case to every lawyer who deals 

with it” (quoting Giglio, 405 U.S. at 154)); see also Brooks, 966 F.2d at 1502-03 

(observing that “the prosecutor‟s own interest in avoiding surprise at trial gives 

him a very considerable incentive to search accessible files for possibly 

exculpatory evidence, quite independent of Brady”).
41

In short, if it was a Brady disclosure at all, the government‟s motion in 

limine was not a timely one.

b. As a Brady Disclosure, the Motion in Limine Was 

Neither Accurate Nor Complete

In addition to its timing, we also consider the content of the motion in 

limine, in particular the “summary” of the OIA Final Report. The defense 

attorneys were not satisfied with the government‟s summary; they pushed for 

disclosure of the “actual report.” Even if it is theoretically possible for the 

government to fulfill its disclosure obligations under Brady by means of 

summaries of preexisting documents, such summaries must be “sufficiently 

specific and complete.” United States v. Rodriguez, 496 F.3d 221, 226 (2d Cir. 

2007).

25

 Again we consider the requisite level of detail from the perspective of the 

defense; where source documents exist, the government must “summarize[] . . . 

[them] with every detail that might have been relevant to defense counsel‟s 

 

25

 See also Matthews v. United States, 629 A.2d 1185, 1199-1200 (D.C. 

1993) (finding alleged Brady information was not “improperly withheld” where 

the prosecutor “explained to [the defendant] exactly what the [exculpatory] 

statement said”), abrogated on other grounds by Wilson-Bey v. United States, 903 

A.2d 818 (D.C. 2006) (en banc); Wiggins v. United States, 386 A.2d 1171, 1173

(D.C. 1978) (holding that the government complied with Brady when it disclosed 

grand jury testimony in a “substantially verbatim” account).
42

preparation as counsel viewed the case.” Wiggins, 386 A.2d at 1178 (Ferren, J.,

concurring). This may be challenging for the government, which presumably is 

not privy to defense counsel‟s thoughts and theories pretrial. Accordingly, the 

government withholds source documents at its peril.

Here, the government‟s motion in limine did not come close to satisfying our 

standards for the content of Brady disclosures. What the government called a

“summary of an incident on April 6, 2009, in which DOC Internal Affairs issued a 

Final Report” was not a true summary of the OIA Final Report at all, much less a 

summary of all the favorable information in the government‟s possession regarding 

Officer Childs.

The OIA Final Report had exposed what the OIA determined was an untrue, 

self-serving story by Officer Childs and two colleagues of an assault by an inmate. 

The government‟s summary, however, indicated that Inmate A had acted 

aggressively. The summary quoted Officer Childs‟s explanation, reproduced in the 

OIA Final Report, that “[b]ecause [Inmate A‟s] actions interfered with the normal 

operations of the facility,” he used a chemical agent on Inmate A and instructed 

him “to seize [sic] his disruptive behavior”—without qualifying that OIA had 

discredited this account because “video footage of the incident [did] not support” 
43

it. Thus, the government reproduced and represented as essentially undisputed 

substantial portions of the very Incident Report the OIA determined contained a 

false account of the incident.

The government‟s motion in limine not only presented as true that which 

OIA had determined false, it used that false story as the backdrop for its account 

that the OIA investigation was simply an inquiry as to whether Officer Childs had 

used excessive force on a restrained Inmate A and whether Officer Childs had

engaged in possibly sloppy report-writing to the extent he incorrectly 

“suggest[ed]” that Inmate A was unrestrained.

26

 The government disputed in its 

motion in limine that this suggestion was “evident” from Officer Childs‟s incident 

report, and it refused to “concede” that Officer Childs had “in fact” made false or

misleading statements with respect to whether Inmate A was handcuffed, even 

though the OIA had determined that, as part of his fabricated story of inmate 

 

26

 The government‟s summary does not mention the other two corrections 

officers who the OIA determined also submitted similarly false accounts of an 

inmate assault. But its story that the OIA investigation was solely about Officer 

Childs‟s possible improper use of force and sloppy report-writing falls apart when 

the full scope of the DOC investigation into the actions of three officers to frame 

an inmate for assault is revealed. 

We further question the government‟s attempt to summarize the report 

without obtaining the 76 pages of appendices that accompanied the report, where 

these appendices further demonstrated that the scope of the OIA investigation was 

not as the government represented.
44

assault, Officer Childs had misleadingly indicated that Inmate A was unrestrained. 

The government‟s omission of the disciplinary consequences of the OIA Final 

Report bolstered the inaccurate account of the OIA investigation in the 

government‟s summary. 

c. As a Brady Disclosure, the Motion in Limine Was Not 

Usable 

The adequacy of a Brady disclosure ultimately turns on “the sufficiency, 

under the circumstances, of the defense‟s opportunity to use the evidence when 

disclosure is made.” Miller, 14 A.3d at 1111 (quoting Leka, 257 F.3d at 100). 

Beyond the timing and the content of the motion in limine, the trial record reflects 

that the government never afforded defense counsel a meaningful “opportunity to 

use” the favorable information in the government‟s possession. Id. The defense 

was never able to impeach Officer Childs with the OIA investigation or its 

disciplinary consequences. Moreover, the government and Officer Childs made 

representations at trial that blocked the court from acting to ensure that any 

favorable information in the government‟s possession would come to light and the 

defense would be able to use it.
45

The government maintained throughout trial that the OIA investigation was 

limited to an inquiry into use of force and alleged false reporting related to the use 

of force, which had no bearing on Officer Childs‟s credibility as an after-the-fact 

identification witness in the Spencer-White trial. The defense, ill-informed by the 

government‟s summary, could not expose the government‟s representations about 

the OIA investigation and its outcome as inaccurate, and could not persuade the 

trial court that a probing cross-examination was warranted. Instead, as counsel put 

it, they were forced to “tak[e] the [government‟s] representations for what the 

report said or didn‟t say” and did not “really have any facts about what happened 

or what was . . . alleged to even ask [Officer Childs].” 

Nevertheless, when Officer Childs took the stand, defense counsel attempted 

on cross-examination to “probe” the basis for the OIA investigation. The 

government objected, and, relying on the government‟s representations, the trial 

court limited the defense to two questions: (1) if it was true Officer Childs had 

“submitted a false report to the Department of Corrections while [he] [was]

working at the D.C. Jail” and (2) if it was true he had been “disciplined by the 

Department of Corrections for filing a false report.” To both questions, Officer 

Childs responded, “no.” The defense had no means of challenging these responses, 
46

much less any basis to ask the court for more leeway in impeaching Officer Childs 

with his prior false reporting. 

Although the defense had been unsuccessful in its questioning, the trial court 

nonetheless tried to fulfill its “obligation to assure” itself that no Brady information 

had been withheld from the defense and that the defense had had a meaningful 

opportunity to confront Officer Childs. See Boyd, 908 A.2d at 59. These efforts 

were for naught. 

The trial court questioned Officer Childs about false reporting out of the 

presence of the jury. In response, Officer Childs represented that DOC OIA “felt 

that I missed the inmate while he was in handcuffs” and that he had explained to 

DOC OIA that “that was an error. I do a lot of cutting and pasting. But I said if 

you look at the rest of my report, that I stated the inmate was standing in front of 

the bubble with the handcuffs on. So, how can I say that I applied handcuffs, 

right?” The court asked Officer Childs whether he had been disciplined in 

connection with the OIA investigation. Officer Childs represented that he had 

received “a voluntary demotion” but that he “didn‟t understand it to be the result[]

of any disciplinary action” and that “no one [had] told [him] the reason for the 

demotion.” The government did not seek to qualify or correct anything Officer 
47

Childs told the trial court, even though the government (1) had a complete copy of 

the OIA Final Report which documented the OIA‟s determinations both that 

Officer Childs had made a false report about whether Inmate A was unrestrained

and this false report was part of a larger false narrative of an inmate assault, and (2) 

had been informed by OIA Investigator Collins that the DOC Office of the 

Director had demoted Officer Childs after receiving the OIA Final Report.

27

 

The trial court then called only the government to the bench to ask about the 

five-page ex parte submission. The court stated that it “just want[ed] to make sure 

. . . . I have the entire filing, because mine stops at page 5, and there was no . . . 

discipline or resolution mentioned in the document . . . that I have a copy of.” The 

government did not alert the trial court that the ex parte submission was 

incomplete; instead, one of the trial prosecutors told the court, “[y]eah, mine is five 

pages long,” incorrectly indicating that the court had the full OIA Final Report. 

The same prosecutor further informed the court, “there is no discipline listed in the 

 

27 Consistent with the Supreme Court‟s decision in Napue, 360 U.S. at 269, 

we acknowledged in Longus v. United States, 52 A.3d 836, 844 (D.C. 2012), that it 

is “[a] bedrock principle of due process in a criminal trial . . . that the government 

may neither adduce or use false testimony nor allow testimony known to be false 

to stand uncorrected.” See also Thompson v. United States, 45 A.3d 688, 691 n.4 

(D.C. 2012) (acknowledging the duty to correct false testimony extends beyond 

perjury to testimony that is false because it is “mistaken”). Neither Mr. Morton 

nor Mr. Vaughn raised a Napue claim in this case, however.
48

report itself,” but the prosecutor did not explain that the OIA only conducts 

investigations and does not make disciplinary decisions; nor did the prosecutor 

inform the court that the decision to demote Officer Childs for making false reports 

had been made by the proper authority, the DOC Office of the Director. 

The trial court subsequently put its understanding of the OIA investigation 

on the record: 

[W]e have a little more clarity concerning this incident. For your 

purposes, the report that was submitted to me, which is what I was 

just confirming with the government, is not in the form of a 

disciplinary action, which is why I followed up with the questions I 

had of Officer Childs, because—and I confirmed with the government

that they weren‟t aware of any, quote, disciplinary action the way we 

would—I had envisioned it could be; that is, there’d be an 

adjudication and then a finding of false report. I think it sounds like 

there was an administrative resolution between the officer and the 

Department of Corrections. 

The court explained that in allowing any questions about the investigation, it had 

been “operating under the assumption that . . . we were talking about some sort of 

disciplinary action where there was a finding” but “we‟re far afield from that.” 

The court then observed that there was no “factual basis that would support going 

further on this matter, in terms of questioning.” Concluding the discussion, the 

court reiterated that “based on what I heard” it would not permit “additional 
49

questioning . . . on what I, at this point, assess . . . to be a collateral matter, which 

was an informal resolution . . . of a disciplinary matter, without a finding of . . . a 

nontruth-telling event.28 Again the government stood silent.

Based on the foregoing, we cannot say that the government, through its 

motion in limine, disclosed to the defense the favorable information in its 

possession in such a way as to allow the defense to use this information effectively. 

The government not only failed to give the defense (or the court) accurate or 

complete information, it then stood by at trial and allowed the defense‟s ignorance 

and the court‟s erroneous understanding of the pertinent facts to persist. The 

upshot was that the trial court did not permit thorough impeachment of Officer 

Childs on the subject of the OIA investigation and its disciplinary consequences 

because it was convinced that, on these topics, there was nothing to impeach 

Officer Childs about. In short, the government‟s motion in limine to preclude 

impeachment of Officer Childs cannot be construed as a Brady disclosure because 

 

28

 The government asserts that because the trial court indicated that it would 

be open to further argument on the subject and the defense failed to raise the issue 

again, the defense “arguably waived any claim that they were entitled to confront 

Sergeant Childs at trial with a copy of the Final Report.” We see no waiver where 

the defense—because of the government‟s suppression of favorable information—

had nothing else to offer and no other means to persuade the court that its 

assessment of the OIA investigation was mistaken. 
50

it worked—the government‟s motion prevented an effective cross-examination of 

Officer Childs on the subject of his prior false reporting.

* * *

In the absence of a timely, accurate, complete, or usable disclosure, we 

conclude that the government did not disclose to the defense the favorable 

information in its possession in this case.

3. The Favorable Information Suppressed by the Government 

Was Material

We next consider whether the favorable information withheld by the 

government was “material.” See Miller, 14 A.3d at 1115. To assess materiality, 

we consider whether there is “a reasonable probability that, had the evidence been 

disclosed to the defense, the result of the proceeding would have been different.” 

Id. (quoting Bagley, 473 U.S. at 682). The reasonable probability standard does 

not require a showing that it is more likely than not the defendant would have been 

acquitted. Kyles, 514 U.S. at 434. Rather, since Brady is a rule of fairness, the 

materiality threshold is met if, in the absence of proper disclosure, we question 

whether the defendant received a fair trial and our “confidence” in the outcome of 
51

the trial is thereby “undermine[d].”29 Id; see also Cain, 132 S. Ct. at 630 (quoting 

Kyles, 514 U.S. at 434); United States v. Cuffie, 80 F.3d 514, 517 (D.C. Cir. 1996) 

(explaining that the proper focus “is on the „potential impact that the undisclosed 

evidence might have had on the fairness of the proceedings‟ rather than on the 

overall strength of the government‟s case” (quoting United States v. Smith, 77 F.3d 

511, 515 (D.C. Cir. 1996))). 

Our materiality analysis in this case must begin with an assessment of 

Officer Childs‟s role in the government‟s case. Officer Childs was a critical 

witness, as the government conceded in its brief to this court. Indeed, the 

government signaled Officer Childs‟s importance by filing its motion in limine to 

preclude his cross-examination about the OIA Final Report. At trial the 

government‟s need for his testimony became apparent: Officer Childs was only 

one of two government witnesses who inculpated Mr. Morton and Mr. Vaughn in 

 

29

 The materiality assessment this court conducts on appellate review is 

necessarily different from the materiality assessment the government can make 

pretrial when assessing its Brady obligations, and we reiterate that prior to trial, the 

government must disclose information that is “arguably” material. Boyd, 908 A.2d 

at 61-62; see also Miller, 14 A.3d at 1109 (acknowledging there may be “a duty of 

disclosure even when the items disclosed subsequently prove not to be material.” 

(citing Boyd, 908 A.2d at 60)).
52

the assault on Sergeant White, and he was objectively the stronger witness.30

Similarly, it cannot reasonably be disputed that Officer Childs‟s credibility was a 

central issue in the case. In closing, the government argued that its case turned on 

the jury‟s assessment of the credibility of its witnesses and of Officer Childs in 

particular. See Lewis v. United States, 408 A.2d 303, 308 (D.C. 1979) (noting that 

the “substantial possibility . . . that impeachment with prior convictions will affect 

the outcome, whether it goes to general credibility . . . or to a more specific target 

of reliability, such as bias” is “especially strong in the case of a key government 

witness” (citation omitted)).

Next, we consider the nature of the withheld information: It was powerfully 

impeaching. It did not simply establish that Officer Childs had a track record for 

untruthfulness. It established that he was willing to make false reports implicating 

inmates in assaults on law enforcement agents—the precise context of this case. 

See Milke, 711 F.3d at 1007 (concluding that suppressed information about a 

 

30

 The government argues on appeal that its case was “strong even without” 

Officer Childs. We cannot agree that a case based solely on the identification 

testimony of Sergeant Harper would have been “strong.” We further note that the 

government‟s assertion that “the jury was able to evaluate whether the tapes 

depicted appellants,” is inconsistent with its position that it needed the lay opinion 

testimony of Officer Childs and Sergeant Harper to assist the jury in identifying the 

individuals in the recordings of the attacks. See infra part IV.A.
53

police officer‟s untruthfulness would have undermined his credibility and 

demonstrated that he “had no compunction about abusing his authority with a 

member of the public” who was similarly situated to the appellant). 

This leads us to the ultimate question: Does the suppression of this 

information undermine our confidence in the fairness of the trial? We conclude it 

does. Had the defense and the court known the full details of the OIA‟s actual 

findings and of the discipline meted out by DOC as a result—and had the 

government known the defense knew—we think it likely that this case would have 

played out very differently. 

Preliminarily, we question whether the government would have made the 

same representations and whether Officer Childs would have given the same 

testimony. But, at the very least, defense counsel would have had a firm 

foundation to press for much more leeway in cross-examining Officer Childs on 

the subject of his prior false reporting and resulting discipline, instead of “hitting in 

the dark.” See Cuffie, 80 F.3d at 517 (explaining that undisclosed evidence of 

untruthfulness is material if it “could have substantially affected the efforts of 

defense counsel to impeach the witness, thereby calling into question the fairness 

of the ultimate verdict” (quoting Smith, 77 F.3d at 515). “[A]s a general rule, a 
54

defendant is entitled to wide latitude in presenting evidence tending to impeach the 

credibility of a witness, especially where[, as here,] that evidence relates to a key 

government witness.” Dockery v. United States, 746 A.2d 303, 306 (D.C. 2000)

(internal quotation marks omitted); Shorter v. United States, 792 A.2d 228, 233

(D.C. 2001) (noting that trial courts may not curtail cross-examination so as to 

“keep[] from the jury relevant and important facts bearing on the trustworthiness of 

crucial testimony” (internal quotation mark omitted)). Here it appears that the trial 

court would have granted the defense such leeway; indeed, the court all but said 

that had Officer Childs been disciplined for making a false report, it would have 

allowed the defense to engage in a very different cross-examination of Officer 

Childs. This court can readily envision a series of permissible, pointed questions

by defense counsel that would have seriously damaged Officer Childs‟s credibility 

in the eyes of the jury—whether he answered them truthfully or tried to avoid 

giving a truthful answer.31 See Milke, 711 F.3d at 1009 (explaining how police 

officer could have been confronted with prior instances of untruthfulness).

 

31

 Even assuming Officer Childs would have given the same denials, his 

testimony that he had not been demoted as a result of false reporting would have 

provided the basis for request by the defense to demand that the government 

correct his false or mistaken testimony. See supra note 27. 
55

The government asserts, however, that it “would not have influenced the 

verdict” if Officer Childs had either (1) admitted that he had been “demoted 

because he had deployed a chemical agent on an inmate” or (2) explained that he 

had not “purposefully file[d] a false report” indicating the inmate was unrestrained. 

We reject the factual foundation for the government‟s argument; as explained 

above, the OIA Final Report documents an investigation that was centrally 

concerned with a false report of an inmate assault by Officer Childs and two fellow 

corrections officers to justify an improper use of force, Officer Childs was demoted 

because of this investigation, and we infer that he was so disciplined as a sanction 

for all the conduct detailed in the OIA Report, including the determinations of false 

reporting.

The government also argues that disclosure of the OIA Final Report would 

have had little effect on the outcome of the trial because the defense could neither

have inquired into it on cross-examination in any further depth, nor could it have 

introduced the report itself as extrinsic evidence. 

In the first alternative, the government takes the position that the defense 

“could not have confronted Sergeant Childs with the report itself in order to 

impeach his credibility” because “appellants have not shown that Sergeant Childs‟s
56

statements were false.” Thus, the government argues the defense could not have 

laid the requisite foundation for cross-examination about a prior bad act. See 

Sherer v. United States, 470 A.2d 732, 738 (D.C. 1983) (explaining that “a witness 

may be cross-examined on a prior bad act that has not resulted in a criminal 

conviction only where: (1) the examiner has a factual predicate for such question, 

and (2) the bad act bears directly upon the veracity of the witness in respect to the 

issues involved [in] the trial” (internal quotation marks omitted) (quoting United 

States v. Akers, 374 A.2d 874, 878 (D.C. 1977))). Again, the government seeks to 

dispute the validity of the DOC‟s determination of false reporting. But, the 

government‟s disbelief in the accuracy of the OIA‟s findings is irrelevant, both to 

an assessment of its obligation to disclose this information under Brady and to an 

assessment of the use the defense could have made of this information at trial. The 

point is that, unlike in Sherer, where the defense proffer that a government witness 

had previously lied “was conclusory and based almost entirely on inadmissible 

hearsay,” 470 A.2d at 739, here there was an official finding of false reporting by a 

government agency. This official determination provided the defense with an 

ample “factual predicate” for questioning Officer Childs about false reporting.32 

 

32

 This factual predicate was not undermined by the absence of any record 

of Officer Childs‟s false reporting and demotion in his personnel file, which the 

trial court apparently reviewed but is not in the record on appeal. It was never 

established that Officer Childs‟s personnel file was complete and in fact the 

(continued...)
57

See id. at 738; see also Wagner v. Georgetown Univ. Med. Ctr., 768 A.2d 546, 563

(D.C. 2001) (finding that a professional association‟s findings recommending 

censure constituted a “more than sufficient factual predicate for the proposed cross 

examination” of a physician witness). 

In the second alternative, the government argues that the defense would not 

have been able to present extrinsic evidence of the OIA Final Report because it 

concerned a collateral issue. See Rowland v. United States, 840 A.2d 664, 680 

(D.C. 2004). Thus, the government argues that even if the defense had had the full 

report and information about the subsequent demotion, it would have been stuck 

with the testimony Officer Childs gave at trial, namely, his denials that he had filed 

a false report and that he had been demoted for filing a false report. Whether the 

defense could have introduced the actual OIA Final Report into evidence is an 

 

(...continued)

personnel regulations allow for removal of documentation of discipline from an 

employee‟s file under certain circumstances. See 6-B DCMR § 1601.7 (2008). 

More fundamentally, there was never any question that Officer Childs was 

demoted in connection with the Inmate A incident. He admitted that he was. And 

even though he stated that he “didn‟t want to” take what he represented was a 

“voluntary demotion,” there is no indication in the record that he ever sought to 

administratively challenge this discipline or the underlying determination of 

misconduct on which it was based. 
58

interesting but ultimately academic issue.

33

 Effectively, the government argues 

that Brady disclosure or no, nothing would have changed in how this case played 

out at trial. As explained above, we think that argument blinks reality. See Milke, 

711 F.3d at 1009 (explaining how prior judicial determinations of police officer‟s 

untruthfulness “would have been a game-changer” on cross-examination even 

without proof of extrinsic evidence). 

 

33

 Extrinsic evidence is admissible to substantiate a claim of witness bias 

because bias is never a collateral issue. Martinez v. United States, 982 A.2d 789, 

795 (D.C. 2009). Here we agree with the government that the defense could not 

have introduced the OIA Final Report to pursue a line of bias cross-examination on 

a theory that Officer Childs was testifying for the government to curry favor in his 

own misconduct proceedings. Because Officer Childs identified Mr. Morton and 

Mr. Vaughn before his false reporting incident took place and because he was 

demoted before he testified at their trial, the timing does not suggest an attempt to 

curry favor with the government while under investigation. Cf. id. at 795 (holding 

that officer‟s status as subject of an ongoing MPD investigation was admissible as 

evidence of bias). But proffering a “well-reasoned suspicion” that a witness has a 

motive to curry favor with the government is only one means of establishing the 

requisite “proper foundation” to pursue a bias line of cross-examination. See

Howard v. United States, 978 A.2d 1202, 1207 (D.C. 2009). “Bias may be induced 

by a witness‟[s] like, dislike, or fear of a party, or by the witness‟[s] self-interest.” 

Dawkins v. United States, 41 A.3d 1265, 1271 (D.C. 2012). And this court has 

recognized that corruption bias, i.e., a willingness to give false testimony, is its 

own separately cognizable form of bias. See Longus, 52 A.3d at 851-53; In re 

C.B.N., 499 A.2d 1215, 1219-20 (D.C. 1985). Although the government argues 

that the defense should be limited in its materiality argument to the theory of bias it 

advanced at trial, we are not inclined to find waiver in light of the fact that the 

defense did not have the full report at trial. Our inquiry is not about what the 

defense did without the Brady material, but about what the defense would have 

done had it had the Brady material. 
59

Based on the record before us, whether the government had an obligation to 

accurately and completely disclose the contents of the OIA Final Report and the 

DOC‟s consequent decision to demote Officer Childs should not have been a hard 

call for the government.34 And had the defense been able to impeach Officer 

Childs with the DOC‟s determination of his prior false reporting and consequent 

demotion, there is at least a reasonable probability that the jury would have 

weighed Officer Childs‟s testimony and the government‟s case differently. This 

concludes our materiality analysis for Mr. Morton. But for Mr. Vaughn, there is a 

coda. The suppressed impeachment evidence for Officer Childs was material only 

to the extent that Mr. Vaughn contested Officer Childs‟s identification. But Mr. 

Vaughn submitted a post-trial affidavit in which he admitted that he was the inmate 

Officer Childs had identified him to be and argued only that his actions had been 

 

34

 Indeed, we are left with many questions about the government‟s behavior 

in this case, including: (1) How could the government have so misconstrued the 

findings of the OIA investigation as memorialized in the full OIA Final Report as 

ultimately unrevealing regarding Officer Childs credibility? (2) How could the 

government have failed to realize at trial that it had not given the court the full OIA 

Final report, particularly when the trial court specifically asked if the five-page 

copy it had in hand was the complete report? (3) How could the government have 

made the representations it did about the consequences of the Inmate A incident or 

have allowed Officer Childs to testify without qualification about his lack of notice 

or understanding of those consequences, in light of the information contained in 

OIA Investigator Collins‟s sworn affidavit? 

But these questions ultimately go to whether the government acted in bad 

faith, which, as we noted at the outset, is irrelevant to the issue raised before this 

court: whether the government violated its constitutionally imposed disclosure 

obligations. See Brady, 373 U.S. at 87; Miller, 14 A.3d at 1107. 
60

misinterpreted—that he had not pushed Sergeant White; he had been trying to help 

him. This admission negates our materiality determination. In light of Mr. 

Vaughn‟s affidavit, which the government would be free to use as a party 

admission, we see little chance of a different result were Mr. Vaughn to be given a 

new trial. Thus, the government‟s Brady violation is reversible only with respect 

to Mr. Morton. 

C. Remand

By now government prosecutors should know: “Betray Brady, give short 

shrift to Giglio, and you will lose your ill-gotten conviction.” United States v. 

Olsen, 737 F.3d 625, 633 (9th Cir. 2013) (Kozinski, C.J., dissenting from denial of 

petition for rehearing en banc). So it is for the government with respect to Mr. 

Morton‟s conviction; we reverse and remand his case for a new trial. 

Well before any such trial takes place,

35 the court must confirm that the 

government has in fact provided to the defense all the favorable information in its 

 

35

 Some courts have held that where the government engages in deliberate 

Brady misconduct, a new trial should not be held. See Virgin Islands v. Fahie, 419 

F.3d 249, 254-55 (3d Cir. 2005) (recognizing that “dismissal for a Brady violation 

may be appropriate in cases of deliberate misconduct”); United States v. Kojayan, 

(continued...)
61

possession. As far as we can tell, the government has never represented in this 

case that it has fulfilled its constitutional duty to learn of and disclose to the 

defense all the Brady information in its actual or constructive possession. See

Kyles, 514 U.S. at 437. The government should be directed to make such a 

representation, in writing, filed with the trial court. See, e.g., Milke, 711 F.3d at 

1019 (requiring, on remand, the state to make complete Brady disclosures 

regarding the subject police officer and to “provide a statement under oath from a 

relevant police official certifying that all of the records have been disclosed and 

none has been omitted, lost or destroyed”); United States v. Naegele, 468 F. Supp. 

2d 150, 155 (D.D.C. 2007) (directing government to “conduct all necessary 

searches and produce to the defendant any and all materials that are responsive” to 

prior Brady requests and “certify to the [c]ourt in writing that it has done so”). It 

also goes without saying that if any other instances of nondisclosure come to light, 

further “remedial sanctions” beyond a retrial may be needed. See Odom v. United 

States, 930 A.2d 157, 158-59 (D.C. 2007) (recognizing a trial court‟s broad 

 

(...continued)

8 F.3d 1315, 1325 (9th Cir. 1993) (remanding to the trial court to consider whether 

to allow a new trial after a Brady violation); see also Sanders v. United States, 550 

A.2d 343, 344-46 (D.C. 1988) (recognizing the trial court‟s “supervisory power to 

dismiss the indictment as a sanction for government misconduct”). We neither 

endorse nor foreclose such an argument by the defense on remand. 
62

authority to fashion “appropriate remedial sanctions” so long as they are just under 

the circumstances).

III. Jury Instruction Error 

Although Mr. Vaughn obtains no relief on his Brady claim, we conclude that

his conviction for aggravated assault must be reversed on other grounds. Mr. 

Vaughn argues that the trial court erred in instructing the jury as to the elements of 

this offense on a theory of aider and abettor liability. Because counsel did not 

object, this claim is subject to plain error review. See Perez, 968 A.2d at 92. The 

government has conceded that the court‟s aiding and abetting instruction was 

plainly incorrect, satisfying the first two criteria for reversal. See Perry v. United 

States, 36 A.3d 799, 818 (D.C. 2011) (citing United States v. Olano, 507 U.S. 725, 

732-36 (1993)). But the government argues that Mr. Vaughn cannot show the third 

criterion for plain error review, namely that this error “affect[ed] substantial 

rights.” Id. We disagree, and because we also conclude that this error “seriously 

affect[ed] the fairness, integrity or public reputation of judicial proceedings,” id., 

the fourth criterion for plain error review, we exercise our discretion to reverse.
63

Mr. Vaughn was charged with both aggravated assault and felony assault. 

As the more serious offense, the D.C. Code appropriately sets a high bar for 

aggravated assault. Whereas felony assault requires proof of “significant bodily 

injury”36 that a defendant caused “intentionally, knowingly, or recklessly,” D.C. 

Code § 22-404 (a)(2), aggravated assault requires proof of “serious bodily injury”37

that a defendant either “knowingly or purposely cause[d]” or that resulted from 

conduct in which the defendant “[u]nder circumstances manifesting extreme 

indifference to human life . . . intentionally or knowingly engage[d] . . . [and] 

which create[d] a grave risk of serious bodily injury.” D.C. Code § 22-404.01; see 

also Perry, 36 A.3d at 817. 

The problem in this case arose after the court correctly instructed the jury on 

the elements of principal liability for aggravated assault and felony assault. The 

trial court then explained that the jury could also convict if it determined a 

 

36

 “Significant bodily injury” is defined as “an injury that requires 

hospitalization or immediate medical attention.” D.C. Code § 22-404 (a)(2) (2012 

Repl.).

37 This court has defined “serious bodily injury” as an injury that causes “a 

substantial risk of death, unconsciousness, extreme physical pain, protracted and 

obvious disfigurement, or protracted loss of impairment of the function of a bodily 

member, organ, or mental faculty.” Perry, 36 A.3d at 815 n.29. 
64

defendant had aided and abetted the principal offender. Whether the jury considers 

a defendant‟s criminal liability as a principal or as an aider or abettor, the requisite 

mens rea for the charged assault is the same. Perry, 36 A.3d at 814-18; see also

Wilson-Bey, 903 A.2d at 837-38 (holding that to be guilty as an aider or abettor, an 

accomplice must have the same mental state required for conviction as a principal). 

Although the court correctly charged the jury that it had to find the same mens rea 

to convict a defendant as a principal or an aider and abettor, it then gave an 

instruction for aider and abettor liability that inappropriately combined the 

standards for aggravated assault and felony assault. In effect, the court informed 

the jury that it could convict a defendant as an aider and abettor of an aggravated 

assault if it found that the defendant had the lesser mens rea for felony assault.38 

Under D.C. Code § 22-404.01 and Perry, this was error and plainly so. 

 

38

 In its discussion of aiding and abetting, the court instructed the 

jury:

With respect to the charge of aggravated assault or 

assault with a significant injury, regardless of whether a 

Defendant is an aider and abettor or a principal offender, 

the Government must prove beyond a reasonable doubt 

that the Defendant personally acted with:

(A) inten[t] to cause significant bodily injury to the 

complainant; or (B) [knowledge] that significant bodily 

injury to the complainant would result from his conduct; 

or (C) [awareness] of and disregard[] [for] the risk of 

significant bodily injury that his conduct created.
65

To demonstrate that this plain error warrants reversal, Mr. Vaughn must 

show prejudice, i.e., a “„reasonable probability‟ of a different outcome if the jury 

had been properly instructed.” Perry, 36 A.3d at 818. This standard for assessing 

prejudice requires us to “make sense of the jury‟s verdict in light of the evidence 

presented and the instructions given to the jury.” Id. at 821. 

The first step of the inquiry is whether we can discern with any assurance 

that Mr. Vaughn was convicted of aggravated assault on a theory of principal 

liability—on which the jury had earlier been correctly instructed—or whether there 

is a reasonable probability that Mr. Vaughn was convicted on a theory of aiding 

and abetting liability—on which the jury never received a correct instruction. On 

the record before the court it is clear that the jury could not have convicted Mr. 

Vaughn of aggravated assault as a principal. No evidence was introduced at trial 

that he caused Sergeant White to suffer the serious bodily injury alleged, i.e., his 

subsequent unconsciousness and head injuries, either by personally inflicting these 

injuries or creating the grave risk that these particular injuries would occur.39 The 

 

39

 We question whether the government presented evidence that Sergeant 

White suffered serious bodily injury at all. The government presented evidence 

that Sergeant White briefly lost consciousness following the attack, that the head 

injuries he incurred did not cause substantial pain, and that, although he sought 

medical care, he fully recovered from these injuries without medical intervention. 

(continued...)
66

government‟s theory at trial was that Mr. Vaughn was the inmate in white, whose 

only contact with Sergeant White was to give him “one good shove.” This push 

knocked Sergeant White against a table. But the recorded footage shows that 

Sergeant White immediately arose from the table and walked away;40 meanwhile 

the inmate in white retreated and did not engage in any further aggressive action. 

The government acknowledged in closing that Mr. Vaughn was not present for the 

subsequent attack on Sergeant White; the government highlighted for the jury that 

Mr. Vaughn was not on the scene because “he [ran] back upstairs” and did not 

“stand there to help.” The complete lack of evidence that Mr. Vaughn principally 

 

(...continued)

This appears to fall well below the “high threshold of injury,” Jenkins v. United 

States, 877 A.2d 1062, 1069 (D.C. 2005), we have set to prove aggravated assault. 

See, e.g., Jackson v. United States, 940 A.2d 981, 983-84 (D.C. 2008) (declining to 

find serious bodily injury where victim was forcibly raped and beaten in the head 

with a hammer); Bolanos v. United States, 938 A.2d 672, 679 (D.C. 2007) 

(declining to find serious bodily injury where victim was stabbed in arm and 

stomach and required surgery to repair perforation to his intestine); see also

Swinton v. United States, 902 A.2d 772, 775 (D.C. 2006) (explaining that in cases 

finding serious bodily injury, the injuries were “usually . . . life-threatening or 

disabling. The victims typically required urgent and continuing medical treatment 

(and, often, surgery), carried visible and long-lasting (if not permanent) scars, and 

suffered other consequential damage, such as significant impairment of their 

faculties. In short, these cases have been horrific.”). But Mr. Vaughn has not 

argued that the nature of Sergeant White‟s injuries preclude his conviction for 

aggravated assault and we need not reach this issue in light of our disposition 

above. 

40

 The recorded footage does not show, and the government presented no 

other evidence regarding, the point in time when Sergeant White was brought to 

the floor. 
67

caused serious bodily injury makes it clear that there is at least a reasonable 

probability that the jury relied on a theory of aiding and abetting to convict Mr. 

Vaughn of aggravated assault. See Perry, 36 A.3d at 821.

Focusing on aiding and abetting liability, we next consider whether it was 

reasonably probable that the jury‟s determination of guilt turned on the mistakenly 

minimized intent element in the aiding and abetting instruction. See id. We think 

it was. To discern Mr. Vaughn‟s mental state, the jury could only look to and draw 

inferences from his conduct. From Mr. Vaughn‟s “one good shove” that caused 

Sergeant White to briefly lose his balance, it seems highly unlikely the jury would 

infer that Mr. Vaughn “himself intended to cause serious bodily injury.” Perry, 36 

A.3d at 817. Thereafter, Mr. Vaughn did not seek to press his advantage and strike 

Sergeant White again. Instead, by immediately retreating, he allowed Sergeant 

White to recover and move away. Similarly, from Mr. Vaughn‟s “one good 

shove,” it seems unlikely the jury would infer that Mr. Vaughn acted intentionally 

to “create[] a grave risk of serious bodily injury.” Id. at 817 (internal quotation 

marks omitted). At the time of Mr. Vaughn‟s single push, no inmate had acted 

aggressively toward Sergeant White; nor is there any evidence in the record as to 

when the subsequent attack began. And, although one might argue that, at the time 

of his push, the ensuing escalation of events was reasonably foreseeable to Mr. 
68

Vaughn, diminishing the requisite aider and abettor mens rea for aggravated 

assault to reasonable foreseeability is precisely what this court held in Perry was 

disallowed under Wilson-Bey. Perry, 36 A.3d at 817-18 (rejecting under WilsonBey a jury instruction that would allow appellants to be “liable for aggravated 

assault for negligently having begun a[n] . . . assault if it was „natural and 

probable‟ that the melée would escalate to severe kicking by someone else, even if 

appellants did not themselves have the intent to cause serious bodily injury or 

„manifest extreme indifference to human life‟”). Thus, we find that there is at least 

a “reasonable probability” that Mr. Vaughn would not have been convicted of 

aggravated assault absent the error in the aiding and abetting jury instruction.

Lastly, we conclude that the fourth element of plain error review is 

satisfied.41 Mr. Vaughn was “wrongly convicted of aggravated assault on an 

aiding and abetting theory of liability, without a jury determination that [he] had 

the mens rea required for conviction of that offense,” and such “[a] wrongful 

 

41

 The government asserts that “appellant is not entitled to reversal because 

he cannot satisfy the third and fourth plain-error requirements,” but save one 

citation, its brief contains no further reference to the fourth prong of plain error 

review. 
69

conviction necessarily affects the integrity of this proceeding and impugns the 

public reputation of judicial proceedings in general.” Perry, 36 A.3d at 822.

Because Mr. Vaughn has satisfied all the elements of plain error review, we 

exercise our discretion to reverse his conviction for aggravated assault.

IV. Other Issues

A. Admission of Identification Testimony

Mr. Morton and Mr. Vaughn also argue that the court should not have 

permitted Sergeant Harper and Officer Childs to testify as identifying witnesses 

because their testimony did not satisfy the standards outlined in Sanders v. United

States, 809 A.2d 584, 596 (D.C. 2002). Discerning no abuse of discretion, id. at 

590, we affirm the trial court‟s Sanders ruling.42

 

42

 The government argues that appellants have waived their argument on 

this issue by failing to raise it before the trial court and asserts that this issue must 

be reviewed for plain error review if it is considered at all. We see no reason to 

delve into a preservation analysis in light of our determination that the trial court 

did not abuse its discretion. 
70

In Sanders, this court held that “lay witness opinion testimony regarding the 

identity of a person in a surveillance photograph or a surveillance videotape is 

admissible into evidence, provided that such testimony is: (a) rationally based on 

the perception of a witness who is familiar with the defendant‟s appearance and 

has had substantial contact with the defendant; and (b) helpful to the factfinder in 

the determination of a fact in issue.”43 809 A.2d at 596. Both Mr. Morton and Mr. 

Vaughn contend that the trial court erred when it allowed Officer Childs and 

Officer Harper to provide identification testimony where the evidence did not 

establish sufficient familiarity and substantial contact with Mr. Morton or Mr. 

Vaughn.44

 

43

 The evidentiary rule in Sanders is derived from Rule 701 of the Federal 

Rules of Evidence, which this court has adopted in substance. See King v. United 

States, 74 A.3d 678, 681 n.13 (D.C. 2013). 

44

 Both Mr. Morton and Mr. Vaughn fault the trial court for not making 

specific findings on the Sanders issue, but trial counsel never requested such 

findings. See Tyson v. United States, 30 A.3d 804, 806 (D.C. 2011) (“[W]hen a 

request for special findings is not timely made, the right to such findings is 

generally regarded as having been waived.”). Indeed, as noted above, there is 

some question whether this issue was waived or properly preserved. See supra

note 42.
71

We consider it a close call whether, under Sanders, Officer Childs and 

Officer Harper had sufficient contact with and knowledge of the defendants. 

Certainly, this case does not involve the familial or close personal relationships 

seen in Sanders or other cases in which identification testimony has been admitted 

in federal courts under Rule 701.45 But the government did present evidence that 

the officers, over a period of months, had daily interaction with Mr. Morton and 

Mr. Vaughn throughout the routine functions of their jobs—interaction which gave 

rise to familiarity and particular knowledge of their physical features. We 

conclude it was therefore within the discretion of the trial court to find that there 

was an adequate foundation for the proffered identification testimony. Both Mr. 

Morton and Mr. Vaughn point to weaknesses in the officers‟ trial testimony, but 

such weaknesses are classic fodder for cross-examination; they do not bear on the 

court‟s initial Sanders ruling.46

 

45

 See Sanders, 809 A.2d at 593 n.10 (allowing identifying testimony from 

defendant‟s neighbor of twenty-five years, former boss, and ex-girlfriend, among 

others); see also, e.g., United States v. Jackman, 48 F.3d 1, 2 (1st Cir. 1995) 

(allowing identifying testimony from defendant‟s ex-wife and two personal 

acquaintances); United States v. Stormer, 938 F.2d 759, 762 (7th Cir. 1991) 

(allowing identifying testimony where witnesses were acquainted with defendants 

for several years); United States v. Borrelli, 621 F.2d 1092, 1095 (10th Cir. 1980) 

(allowing identifying testimony from defendant‟s stepfather).

46

 Mr. Morton also argues that Sergeant Harper and Officer Childs should 

not have been permitted to testify because the government failed to establish that 

their testimony would be helpful. But this argument is largely a repeat of his 

(continued...)
72

B. Ineffective Assistance of Counsel

Mr. Vaughn also argues that the representation he received at trial was 

constitutionally ineffective. To establish ineffective assistance of counsel, the 

defendant must show that counsel‟s performance was deficient and that this 

deficient performance prejudiced the defendant. Blakeney v. United States, 77 

A.3d 328, 340 (D.C. 2013) (citing Strickland v. Washington, 466 U.S. 668, 686-87 

(1984)). In reviewing the trial court‟s determination that counsel was not 

ineffective, we accept the trial court‟s factual findings unless they are without 

evidentiary support in the record, but review the legal conclusions regarding the 

constitutional significance of those findings de novo. Id. at 341. We affirm the 

trial court‟s finding that Mr. Vaughn failed to establish deficient performance on 

the part of his trial counsel.

 

(...continued)

challenge to the quality and quantity of the officers‟ “personal and direct contacts” 

with Mr. Morton. To the extent he focuses on other factors, he identifies one in 

particular, “the quality of the video or photo,” that defeats his argument. Indeed, 

elsewhere in his brief, Mr. Morton acknowledges the recorded footage used by the 

government in this case was “dark, pix[e]lated, „jerky,‟ and „blurry.‟” In Sanders, 

we stated that testimony may be helpful if the image of the defendant in the 

videotape or photograph is “obscured.” Sanders, 809 A.2d at 596.
73

In order to show deficient performance, the defendant must “show[] that 

counsel made errors so serious that counsel was not functioning as the „counsel‟ 

guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. 

Mr. Vaughn first claims that his trial counsel‟s representation was deficient 

because counsel failed to investigate and prepare witnesses who could have 

testified at trial. But the trial court found, consistent with trial counsel‟s testimony 

in the post-trial proceeding, that counsel interviewed the witnesses that Mr. 

Vaughn provided, and ultimately determined that their testimony would not be 

helpful where it contradicted the evidence depicted in the videos. The ultimate 

decision not to call these witnesses “is a judgment left almost exclusively to 

counsel,” and we see nothing on this record to call that judgment into question. 

Oliver v. United States, 832 A.2d 153, 158 (D.C. 2003) (internal quotation marks 

omitted).

Mr. Vaughn also claims that he would have exercised his right to testify but 

for counsel‟s failure to prepare him to do so. The trial court, however, credited 

counsel‟s testimony in post-trial proceedings that he had met with Mr. Vaughn

several times prior to trial and asked a co-defendant‟s counsel to conduct a mock 
74

cross-examination of Mr. Vaughn. This, too, is well within the range of reasonable 

attorney performance. 

Finally, Mr. Vaughn argues that counsel presented defense theories that 

were inconsistent. Counsel argued that the person seen in the recorded footage

wearing white was not Mr. Vaughn, but in any event, if the jury thought that 

person was Mr. Vaughn, the alleged push was insufficient to satisfy the element of 

serious bodily injury required for aggravated assault. Even if this argument in the 

alternative constituted a contradiction, a basic principle of criminal law is that a 

defendant may present inconsistent and contradictory defenses. See, e.g., McClam 

v. United States, 775 A.2d 1100, 1104 (D.C. 2001). 

For these reasons, we affirm the trial court‟s denial of Mr. Vaughn‟s 

ineffective assistance of counsel claim.
75

C. Sufficiency of the Evidence

Both Mr. Morton and Mr. Vaughn raise challenges to the sufficiency of the 

government‟s evidence. Mr. Morton effectively reargues his Sanders challenge in 

his attack on the sufficiency of the evidence when he argues that he could not have 

been convicted “without the non-eyewitness testimony” of the corrections officers 

who viewed the videotape, and that even with this testimony “the jury must have 

been left to speculate about whether, in fact, the video identifications had any 

basis.” We have affirmed the trial court‟s Sanders ruling, but even if we had not, 

we consider even wrongfully admitted evidence in assessing sufficiency, Mitchell 

v. United States, 985 A.2d 1125, 1134-35 (D.C. 2009). Viewing the totality of the 

evidence presented in the light most favorable to the government, see id. at 1133,

we reject Mr. Morton‟s sufficiency challenge to his convictions for aggravated 

assault and assault on a law enforcement officer.

For his part, Mr. Vaughn attacks the sufficiency of the government‟s 

evidence against him on the ground that the jury was “misled” by the poor quality 

of the video footage of his contact with Sergeant White and failed to discern that 

his “true act” was not to attack Sergeant White, as the government argued, but 
76

rather to come to his aid and defend him against attack by others. Again, we view 

the evidence in the light most favorable to the government. The jury could have 

viewed the video and concluded that it showed Mr. Vaughn engaging in an 

altercation with Sergeant White and taking an action that it could reasonably have 

interpreted as a push.

V. Conclusion

For the reasons set forth above we affirm Mr. Vaughn‟s conviction for 

assault on a law enforcement officer; we reverse his conviction for aggravated 

assault; we reverse Mr. Morton‟s convictions for assault on a law enforcement 

officer and aggravated assault; and we remand for further proceedings consistent 

with this opinion. 

So ordered.