United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 16, 2007 Decided July 15, 2008

No. 07-3024

UNITED STATES OF AMERICA,

APPELLEE

v.

LATANYA ANDREWS,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 06cr00026-02)

Ryan M. Malone argued the cause for appellant. With him

on the briefs was Peter M. Brody, appointed by the court.

Daniel A. Petalas, Attorney, U.S. Department of Justice,

argued the cause and filed the brief for appellee. Roy W.

McLeese, III, Assistant U.S. Attorney, entered an appearance.

Before: ROGERS and GARLAND, Circuit Judges, and

SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GARLAND.

Concurring opinion filed by Circuit Judge ROGERS.
2

GARLAND, Circuit Judge: LaTanya Andrews appeals her

conviction for bribery and conspiracy to defraud the United

States on the ground that the government failed to disclose

exculpatory evidence to her in a timely fashion, in violation of

her rights under Brady v. Maryland, 373 U.S. 83 (1963). She

also appeals her sentence on the ground that the district court

applied the wrong edition of the United States Sentencing

Guidelines Manual, and in so doing violated the Ex Post Facto

Clause of the Constitution. Because we find no Brady violation,

and conclude that any error the court made in referring to the

2006 Guidelines Manual was not plain, we affirm the judgment

of the district court. 

I

LaTanya Andrews worked at the Department of Veterans

Affairs Medical Center (DVAMC) for eighteen years, beginning

in 1988. In 2000, Andrews worked in the DVAMC’s payroll

section as a payroll technician. That section was located in the

same area as the human resources section -- the department

charged with storing official personnel folders, including those

pertaining to employee benefits -- in which Andrews had

worked earlier in her career. Andrews’ codefendant, Peter

Turner, worked at the DVAMC as a volunteer driver. 

From 1998 to 2000, Turner was romantically involved with

Vestor Mayo, a DVAMC nurse with whom he and Andrews

sometimes commuted to work. Mayo suffered a stroke on

December 8, 2000, and she died two weeks later. At the time of

her death, Mayo was insured through the Federal Employees’

Group Life Insurance (FEGLI) program, which is administered

through the Office of Federal Employees’ Group Life Insurance

(OFEGLI). The designation-of-beneficiary form received by

OFEGLI in January 2001 listed Turner and Mayo’s mother,

Lorenza Mayo, as co-beneficiaries. Pursuant to that designation,
3

OFEGLI distributed $20,562.90 to each beneficiary as money

market accounts on which they could draw checks. On February

1, 2001, Turner wrote Andrews a check from his beneficiary

account for $1,000. It was the first check that Turner wrote

from that account; the memorandum line stated that the money

was a loan. In March 2001, Andrews purchased a car for $800.

When Lorenza Mayo went to the DVAMC human resources

section to review the paperwork necessary to obtain her share of

her daughter’s insurance proceeds, she examined the

designation-of-beneficiary form and concluded that it was a

forgery: the handwriting and signature did not look like those

of her daughter, the Social Security number was incorrect, and

Lorenza’s name and address were misspelled. Lorenza and her

husband reported the forgery to OFEGLI, which in turn

forwarded the claim to the Office of Personnel Management

(OPM) for review. 

In November 2005, Andrews submitted to a voluntary

interview by Special Agents Shantel Robinson and Derek Holt

of OPM’s Office of Inspector General. When asked whether she

had ever received money or a loan from Turner, Andrews said

he had never given her anything more than $10. When

confronted with the $1,000 check that he had written to her, she

changed her story, ultimately claiming that it was a loan. The

agents recorded Andrews’ statements in the handwritten notes

they took during the interview and in Robinson’s typewritten

report prepared the same day. 

On January 31, 2006, Andrews and Turner were indicted

and charged with one count of conspiracy to defraud the United

States, in violation of 18 U.S.C. § 371, and one count of bribery,

in violation of 18 U.S.C. § 201(b). The indictment alleged that

Turner and Andrews conspired to defraud the United States and

that Turner paid Andrews $1,000 for assisting him in placing the
4

1

Andrews also contends that the evidence at trial was insufficient

to support her conviction, although she concedes that it was enough to

sustain Turner’s. Mot. for Directed Verdict at 11 (Sept. 12, 2006).

Our standard for reviewing such a challenge is narrow: we must

accept the jury’s guilty verdict if we conclude that “any rational trier

of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979)

(emphasis omitted). “In making that determination, ‘the prosecution’s

evidence is to be viewed in the light most favorable to the government,

drawing no distinction between direct and circumstantial evidence,

and giving full play to the right of the jury to determine credibility,

weigh the evidence and draw justifiable inferences of fact.’” United

forged beneficiary form in the file. The indictment also charged

that Andrews and Turner agreed to conceal the conspiracy and

any acts committed in furtherance thereof. 

On July 31, 2006, after a four-day trial, a jury returned

guilty verdicts against Andrews and Turner on both the

conspiracy and bribery charges. On February 9, 2007, the

district court sentenced Andrews to concurrent 15-month terms

of imprisonment. In so doing, the court applied the theneffective 2006 United States Sentencing Guidelines Manual in

an advisory fashion, as required by United States v. Booker, 543

U.S. 220, 245 (2005).

Andrews challenges the judgment below on two principal

grounds: (1) that the government violated her rights under

Brady v. Maryland, 373 U.S. 83, by failing to produce Special

Agents Robinson’s and Holt’s handwritten interview notes prior

to trial; and (2) that the district court erred under the U.S.

Sentencing Guidelines and the Constitution’s Ex Post Facto

Clause by calculating her sentence based on the 2006

Sentencing Guidelines Manual, rather than on the Manual that

was in effect in February 2001 -- the month she contends the

conspiracy ended. We consider these challenges below.1
5

States v. Branham, 515 F.3d 1268, 1273 (D.C. Cir. 2008) (quoting

United States v. Dykes, 406 F.3d 717, 721 (D.C. Cir. 2005)). In this

case, the government’s evidence showed that the signatures on the

designation-of-beneficiary form were forgeries, that the physical

location of Andrews’ workstation gave her access to the DVAMC’s

personnel files, that the first check Turner wrote from the fraudulentlyobtained life insurance disbursement was to Andrews for $1,000, and

that Andrews lied to the OPM agents when they asked whether she

had ever received money or loans from Turner. This evidence is

sufficient to survive our narrow standard of review. 

2

The court also ordered the government to produce all documents

required by Federal Rule of Criminal Procedure 16 and all witness

statements subject to disclosure under the Jencks Act, 18 U.S.C. §

3500(b). The defendant does not assert a Rule 16 or Jencks Act

violation on appeal.

II

We begin with Andrews’ claim under Brady v. Maryland.

A

In pretrial hearings, the district court ordered the

government to produce, inter alia, all Brady materials prior to

trial.2 On February 16, 2006, the government produced 3,134

pages of documents and records as part of its pretrial discovery.

Under separate cover, it also turned over Robinson’s typewritten

interview report, which conveyed the substance of Andrews’

answers and noted Holt’s presence during the interview. Before

trial, the government represented to the court that it had

complied with the court’s production order.

At trial, Agent Robinson testified about her November 2005

interview with Andrews. Robinson stated that Andrews initially

told her and Agent Holt that she had never borrowed or received
6

more than $10 from Turner. Trial Tr. 651 (July 26, 2006).

When Robinson showed Andrews a copy of the $1,000 check,

Andrews changed her story, claiming that Turner had given her

the check so that she could prove to a car dealership that she had

a checking account. Id. When Robinson pointed out that a

check written from Turner’s beneficiary account would not

show that Andrews had a checking account, Andrews changed

her story again, claiming that she borrowed the money from

Turner in order to purchase a car. Id. at 653. According to

Robinson, Andrews also said that she had repaid Turner in

February 2001 and that her bank statements should reflect that

fact. Id. Robinson recounted that she checked Andrews’ bank

accounts and did not find such a payment, although there were

regular cash withdrawals. Id. at 654, 658. Finally, she testified

that documents showed Andrews purchased a car in March

2001, after the period in which she claimed she had repaid

Turner for the loan. Id. at 655.

On cross-examination, at the end of the trial day, defense

counsel asked Robinson whether her testimony was based on her

memory of the interview. Robinson answered that it was also

based on her interview report and on the handwritten notes that

she took during the interview. Id. at 678-79. Defense counsel

had not known of the notes’ existence prior to that point and,

upon making this discovery, asked to approach the bench. The

prosecutor asserted that the government had no obligation to

produce the notes because they were incorporated into

Robinson’s final report, but she conceded that she had not

actually seen them. The court instructed the government to

examine the notes overnight and to determine whether they

should be produced. Id. at 680. Andrews’ counsel opted to

continue his cross-examination of Robinson without the notes.

Id. After the cross-examination ended, the court adjourned trial

for the day.
7

The following morning, the government advised the court

that, although it still believed it had no obligation to produce

Robinson’s handwritten notes, it had voluntarily done so “in an

abundance of caution.” Trial Tr. 717-18 (July 27, 2006). The

court then asked defense counsel whether there was “anything

in [the notes] that requires any further inquiry.” Id. at 718.

Counsel said that further cross-examination was unnecessary,

but he reserved the right to use the notes in the event that the

government re-called Robinson on rebuttal. Id. The

government did not re-call her, and defense counsel did not raise

the issue again.

B

In Brady v. Maryland, the Supreme Court held that the Due

Process Clause imposes upon the prosecution an obligation to

disclose “evidence favorable to an accused . . . where the

evidence is material either to guilt or to punishment, irrespective

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

87. In Giglio v. United States and United States v. Bagley, the

Court held that “[i]mpeachment evidence, . . . as well as

exculpatory evidence, falls within the Brady rule.” Bagley, 473

U.S. 667, 676 (1985) (citing Giglio, 405 U.S. 150, 154 (1972)).

As we have noted, “courts have used the term ‘Brady violation’

to cover a multitude of prosecutorial sins involving breach of

‘the broad obligation to disclose exculpatory evidence,’ often

called ‘Brady material.’” In re Sealed Case, 185 F.3d 887, 892

(D.C. Cir. 1999) (quoting Strickler v. Greene, 527 U.S. 263, 281

(1999)). “These include both the failure to search for Brady

material and the failure to produce it.” Id.

In Strickler v. Greene, the Supreme Court explained that,

“strictly speaking, there is never a real ‘Brady violation’ unless

the nondisclosure was so serious that there is a reasonable

probability that the suppressed evidence would have produced
8

a different verdict.” 527 U.S. at 281. A “true Brady violation”

has three components: “The evidence at issue must be favorable

to the accused, either because it is exculpatory, or because it is

impeaching; that evidence must have been suppressed by the

State, either willfully or inadvertently; and prejudice must have

ensued.” Id. at 281-82. To satisfy the prejudice component, the

withheld evidence must be “material” -- that is, there must be “a

reasonable probability that, had the evidence been disclosed to

the defense, the result of the proceeding would have been

different.” Id. at 280 (quoting Bagley, 473 U.S. at 682); see

Kyles v. Whitley, 514 U.S. 419, 433-34 (1995). If the

undisclosed evidence is material, a new trial is required. See

Kyles, 514 U.S. at 421-22.

Andrews argues that Robinson’s and Holt’s handwritten

notes are Brady or Giglio material because they do not contain

two of the four allegedly false statements that Robinson testified

Andrews made to her. The notes do reflect Andrews’ first

statement: that Turner had never given or loaned her anything

more than $10. After Robinson confronted Andrews with the

$1,000 check from Turner, Robinson testified that Andrews

made a second statement: “that she needed to show a car

dealership that she had a checking account and so she asked Mr.

Turner to write her the check.” Trial Tr. 651 (July 26, 2006).

Andrews maintains that this second statement is not included in

the notes. She concedes that the third statement recounted by

Robinson -- that Andrews said Turner loaned her the money so

that she could purchase a car -- is in the notes. But she points

out that the alleged fourth statement -- that she told Robinson

that “her bank statements in February of 2001 should reflect that

she paid Mr. Turner back” -- is not there. Id. at 653. 

Andrews contends that the absence in the notes of a mention

of her alleged second statement “is a critical difference from

Robinson’s report and testimony because the second story is the
9

most suspicious and was highlighted by the Government as

proof of Andrews’s guilt.” Appellant’s Br. 18 (citing Trial Tr.

901 (July 28, 2006)). She also regards the absence of any

reference to her alleged fourth statement as significant. Had the

notes been available to defense counsel before he began his

cross-examination, Andrews asserts, he could have successfully

impeached Robinson’s testimony and changed the outcome of

the trial.

Contrary to the government’s contention in the district

court, “[i]t seems too plain for argument that rough notes from

any witness interview could prove to be Brady material.”

United States v. Harrison, 524 F.2d 421, 427 (D.C. Cir. 1975).

As we have previously explained, the “possible importance of

the rough notes” for the purpose of providing leads or of

impeaching a witness for discrepancies between the notes and

the witness’ testimony “is not diminished in cases where” the

notes form the basis of a final report that the prosecution turns

over to the defense. Id. Nor is the prosecutor relieved of her

Brady obligation if the notes are kept by the agent and never

reviewed by the prosecutor. As the Court held in Kyles v.

Whitley, the Brady rule includes evidence “known only to police

investigators and not to the prosecutor.” 514 U.S. at 438.

“Hence, to comply with Brady, ‘the individual prosecutor has a

duty to learn of any favorable evidence known to others acting

on the government’s behalf in the case, including the police.’”

In re Sealed Case, 185 F.3d at 892 (quoting Kyles, 514 U.S. at

437).

The government’s first argument on appeal is considerably

stronger than the one it made in the district court. The

government asserts that the differences between the notes and

Robinson’s report and testimony are not sufficient to satisfy the

prejudice prong of the Strickler test. Parsing the words of

Robinson’s handwritten notes, the government contends that
10

they can be construed as referring to Andrews’ second statement

as well as to her first and third. But even if that were not true,

the government maintains that the notes would not have

successfully impeached Robinson because she could easily have

explained that rough interview notes are by their nature

incomplete, and that the report -- completed on the same day as

the interview -- was an accurate recounting of what Andrews

had said. Moreover, the notes do reflect the first story recounted

by Agent Robinson -- that Andrews’ responded to the question

of whether Turner had ever given or loaned her anything by

stating that he had never given or loaned her anything greater

than $10. Nor is there any dispute that this story was a lie,

which Andrews did not withdraw until confronted with the

$1,000 check. All of this makes it hard for us to conclude that

there is “a reasonable probability that, had the [notes] been

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

been different.” In re Sealed Case, 185 F.3d at 892 (quoting

Bagley, 473 U.S. at 676).

The government’s second argument on appeal is even

stronger, and there is no doubt that it is dispositive. Even if the

difference between the notes and Robinson’s testimony were

material, the notes were in fact “disclosed to the defense.” Id.

It is true that the government did not provide them until late in

the day. But in such circumstances, where disclosure was made

but made late, “the defendant must show a reasonable

probability that an earlier disclosure would have changed the

trial’s result” and not just that the evidence was material. United

States v. Dean, 55 F.3d 640, 663 (D.C. Cir. 1995); see also

United States v. Wilson, 160 F.3d 732, 742 (D.C. Cir. 1998)

(“Appellants have the burden to show that ‘had the statements

been disclosed earlier, there is a probability sufficient to

undermine our confidence in the actual outcome that the jury

would have acquitted.’” (quoting United States v. Tarantino,

846 F.2d 1384, 1417 (D.C. Cir. 1988))). And as we have said
11

3

Andrews’ appellate brief also states that her trial counsel “could

not recall if the Government provided him with a copy of Agent Holt’s

notes at the same time as Robinson’s notes, or whether he received

them at a later time.” Appellant’s Br. 11 n.3. But because the burden

of showing a Brady violation -- including one caused by late

disclosure -- is on the defendant, the speculative possibility that the

Holt notes came later adds nothing to Andrews’ argument. Andrews

further maintains that, if her trial counsel had received the notes

earlier, he “could have called Holt as a witness and used his notes to

discredit Robinson’s testimony.” Id. at 23. Yet counsel declined two

opportunities to seek a continuance, during which he could have

received and evaluated the notes and then decided whether to call

Holt. We thus have no ground for finding that testimony by Holt --

whose notes were not materially different from Robinson’s -- would

have made a difference in the outcome of the trial.

before, “a new trial is rarely warranted based on a Brady claim

where the defendant[] obtained the information in time to make

use of it.” Wilson, 160 F.3d at 742. 

Andrews contends that the government’s failure to produce

the notes “until the morning of the fourth day of trial

(immediately before the defense case was to begin) did not leave

defense counsel with enough time to use the material properly,

to build a responsive defense theory, or effectively impeach

Robinson, who would have to have been recalled.” Appellant’s

Br. 23.3 The notes, however, were hardly voluminous:

Robinson’s and Holt’s notes together comprised only six pages

of large, legible handwriting. See J.A. 143-48. Moreover,

defense counsel had two opportunities to request a continuance

to examine them. The first was during the bench conference

immediately following counsel’s discovery of the notes’

existence on the afternoon of Wednesday, July 26, 2006; the

second was on the morning of Thursday, July 27, 2006, after the

government had produced the notes to counsel and he had read

them. As in Wilson, a case in which we rejected a Brady claim
12

4

Andrews contends that she effectively raised this claim in the

district court by arguing, before trial began, that the indictment was

similarly based on tardy disclosure, Andrews’ counsel “did not

request a continuance in order to determine whether the

statements supported a viable alternative defense, nor request a

mistrial, nor even claim a Brady violation had occurred.” 160

F.3d at 741.

Andrews maintains that her counsel had little choice but to

decline the opportunity to delay the cross-examination on

Wednesday and use the notes on Thursday morning, as that

would have required recalling Robinson -- a strong prosecution

witness -- to the stand. But cross-examinations often run over

two days, and lawyers often save their best ammunition for their

last exchanges with a witness. Andrews has suggested no reason

why -- if the inconsistencies between the notes and Robinson’s

testimony were as powerful as she believes they were --

concluding the examination by confronting the witness on

Thursday morning would have been tactically disadvantageous.

Accordingly, because Andrews has failed to show that she did

not receive the notes “in time to make effective use” of them, we

reject her Brady challenge. Dean, 55 F.3d at 663 (internal

quotation marks omitted).

III

We next address Andrews’ sentencing challenge, which is

based on her contention that the district court referred to the

wrong edition of the Sentencing Guidelines Manual, in violation

of Guidelines § 1B1.11 and the Ex Post Facto Clause. Because

Andrews did not object to the court’s application of the 2006

Manual in the district court, we review her claim only for plain

error. United States v. Simpson, 430 F.3d 1177, 1183 (D.C. Cir.

2005).4

 Under that standard: “‘[T]here must be (1) error, (2)
13

barred by the statute of limitations because the alleged conspiracy

ended no later than February 2001. This was insufficient to preserve

the objection she has made on appeal, however, because she never

suggested, at sentencing or otherwise, that the court should apply the

2000 rather than 2006 Guidelines Manual. See In re Sealed Case, 349

F.3d 685, 690-91 (D.C. Cir. 2003); United States v. Smith, 232 F.3d

236, 238 (D.C. Cir. 2000).

that is plain, and (3) that affect[s] substantial rights. If all three

conditions are met, an appellate court may then exercise its

discretion to notice a forfeited error, but only if (4) the error

seriously affect[s] the fairness, integrity, or public reputation of

judicial proceedings.’” Id. (alterations in original) (quoting

Johnson v. United States, 520 U.S. 461, 467 (1997)).

The Sentencing Guidelines provide that courts should

generally “use the Guidelines Manual in effect on the date that

the defendant is sentenced.” U.S. Sentencing Guidelines

Manual § 1B1.11(a) (2006) [hereinafter U.S.S.G.]. Andrews

was sentenced on February 9, 2007, when the 2006 Manual was

in effect. The Guidelines also provide, however, that “[i]f the

court determines that use of the Guidelines Manual in effect on

the date that the defendant is sentenced would violate the ex post

facto clause of the United States Constitution, the court shall use

the Guidelines Manual in effect on the date that the offense of

conviction was committed.” Id. § 1B1.11(b)(1). We have

previously held that, when use of a later Manual would

“adversely affect” a defendant’s sentence, it “may not be applied

retroactively without violating the ex post facto clause.” United

States v. Lam Kwong-Wah, 924 F.2d 298, 304 (D.C. Cir. 1991);

see United States v. Gaviria, 116 F.3d 1498, 1514 (D.C. Cir.

1997). Hence, as recently as 2003 we held that “courts must

apply the Guidelines in effect on the date the offense was

committed if using the Guidelines in effect at the time of
14

sentencing would yield a longer sentence.” United States v.

Bolla, 346 F.3d 1148, 1151 n.1 (D.C. Cir. 2003). 

Andrews contends that the charged conspiracy ended in

February 2001 and notes that the Guidelines Manual in effect in

that month was the 2000 Manual. The district court’s use of the

2006 Manual was error, she argues, because it yielded a longer

sentence than that indicated by the 2000 Manual. The 2006

Guidelines Manual specifies a base offense level of 14 for

Andrews’ conspiracy and bribery convictions. U.S.S.G. §

2C1.1(a)(1) (2006). Given Andrews’ criminal history category

of I, that offense level corresponds to a sentence of 15 to 21

months. Id. § 5A. In contrast, the 2000 Guidelines Manual

specifies a base offense level of 10 for Andrews’ offenses of

conviction, U.S.S.G. § 2C1.1(a)(1) (2000), which, given her

criminal history category, corresponds to a sentence of only 6 to

12 months, id. § 5A. 

The government argues that, even if the district court erred

in applying the 2006 Manual, that error was not plain for two

reasons. We agree. 

First, in its 2005 opinion in United States v. Booker, the

Supreme Court held that the Sentencing Guidelines must now be

regarded as advisory rather than mandatory. 543 U.S. at 245.

This circuit has not yet determined whether, after Booker,

application of a later (than the date-of-offense) Guidelines

Manual that yields a higher sentence continues to raise an ex

post facto problem. Nor has the Supreme Court. The Seventh

Circuit has concluded that use of a later Manual no longer

presents such a problem, holding that “the ex post facto clause

should apply only to laws and regulations that bind rather than

advise.” United States v. Demaree, 459 F.3d 791, 795 (7th Cir.

2006). Some other courts have indicated their agreement. See

United States v. Mathis, 239 F. App’x 513, 517 n.2 (11th Cir.
15

2007); United States v. Barton, 455 F.3d 649, 655 n.4 (6th Cir.

2006); see also United States v. Rodarte-Vasquez, 488 F.3d 316,

325 (5th Cir. 2007) (Jones, C.J., concurring). The Eighth

Circuit, however, disagrees. See United States v. Carter, 490

F.3d 641, 643 (8th Cir. 2007). And several other circuits also

appear to regard the ex post facto analysis as unchanged,

continuing to apply Guidelines § 1B1.11(b)(1) in the same way

they did before Booker. See United States v. Gilman, 478 F.3d

440, 449 (1st Cir. 2007); United States v. Wood, 486 F.3d 781,

791 (3d Cir. 2007); United States v. Austin, 479 F.3d 363, 367

(5th Cir. 2007); United States v. Stevens, 462 F.3d 1169, 1170

(9th Cir. 2006).

We do not need to decide which side of that circuit split we

would join in order to resolve this case. “Even assuming the

district court erred, . . . absent an opinion by this circuit or the

Supreme Court on the issue in dispute, there is no plain error

unless [the] district court failed to follow [an] ‘absolutely clear’

legal norm . . . .” United States v. Vizcaino, 202 F.3d 345, 348

(D.C. Cir. 2000) (quoting United States v. Merlos, 8 F.3d 48, 51

(D.C. Cir. 1993)). And there is no such absolutely clear norm

here.

Second, it is also not plain that Andrews’ conspiracy ended

in February 2001 -- when Andrews received the $1,000 payment

from Turner -- rather than in 2005 -- when Andrews lied to

OPM investigators to conceal the plot. Andrews’ argument in

favor of the former date is based on Grunewald v. United States,

which held that “acts of concealment done after the[] central

objectives have been attained, for the purpose only of covering

up after the crime,” are not part of the principal conspiracy. 353

U.S. 391, 405 (1957); see Pyramid Sec., Ltd. v. IB Resolution,

Inc., 924 F.2d 1114, 1117-18 (D.C. Cir. 1991). This, Andrews

argues, means that the conspiracy ended when she says it did:

with her receipt of the $1,000. But there is an exception to the
16

Grunewald rule. As the Supreme Court explained, “a vital

distinction must be made between acts of concealment done in

furtherance of the main criminal objectives of the conspiracy,”

which extend the statute of limitations, “and acts of concealment

done after these central objectives have been attained,” which do

not. Grunewald, 353 U.S. at 405. When “‘[t]he successful

accomplishment of the crime necessitates concealment,’ acts of

concealment are properly considered to be within the scope of

the original conspiracy.” United States v. Gleason, 766 F.2d

1239, 1242 (8th Cir. 1985) (quoting Grunewald, 353 U.S. at

405). In Forman v. United States, the Court applied this

exception to hold that a conspiracy to evade income taxes

extended to false statements made to IRS agents as late as 1953,

notwithstanding that the last fraudulent return was filed in 1946,

because “concealment of the ‘holdout’ income must continue if

the evasion is to succeed. It must continue until action thereon

is barred and the evasion permanently effected.” 361 U.S. 416,

424 (1960), overruled on other grounds by Burks v. United

States, 437 U.S. 1 (1978). 

The government asserts that Forman, not Grunewald,

governs here. It argues that, after the insurance proceeds were

initially distributed pursuant to the designation-of-beneficiary

form, OPM had a continuing obligation to ensure that the money

had been given to the correct beneficiary. Thus, the

conspirators’ “object to defraud continued throughout the course

of the regulatory inquiry conducted by OPM to determine who

was the proper lawful beneficiary for those funds,” an effort that

“remained on-going when Andrews was interviewed in

November 2005.” Gov’t Br. 33. This, the government argues,

is consistent with the language of the indictment, which charged

a conspiracy from December 8, 2000, through January 10, 2006,

to “defraud the United States by impairing, impeding, and

defeating the lawful functions and duties of the OPM and the

FEGLI program,” Indictment at 3 (J.A. 22), and which listed
17

“conceal[ing] the conspiracy itself and the acts committed in

furtherance thereof” among the objects of the conspiracy, id. at

5 (J.A. 24). 

Once again, we need not decide which party’s argument is

correct. On its face, the indictment alleged that the conspiracy

continued into 2006, and the question of whether Grunewald or

Forman applies to acts of concealment in a particular case is not

without difficulty. See, e.g., United States v. Rabinowitz, 56

F.3d 932, 933-34 (8th Cir. 1995) (holding that a conspiracy to

defraud a client by using a wire transfer included the defendant’s

subsequent lies to a revenue agent to conceal the nature of those

transfers); United States v. Masters, 924 F.2d 1362, 1368 (7th

Cir. 1991) (holding that a conspiracy to commit murder

continued as long as the defendant acted to conceal it where the

conspirators, including two police officers, “intended from the

first to exert strenuous efforts to prevent discovery of the crime

and of their involvement in it”); Gleason, 766 F.2d at 1242

(noting “agree[ment] with other courts that have held that a

conspiracy covered by 18 U.S.C. § 371, such as the one charged

here [to obstruct the collection of income taxes], necessarily

contemplates acts of concealment to accomplish its objectives”);

United States v. Diez, 515 F.2d 892, 897-98 (5th Cir. 1975)

(holding that, in “light of the substantial possibility” that the

fraudulent tax returns filed by the defendants “would be audited

and investigated, the filing of the returns did not fully

accomplish the purpose of the main conspiracy”). Given this

uncertainty, together with the uncertainty that Booker creates for

the ex post facto analysis, we cannot conclude that any error in

the application of the 2006 Guidelines Manual was plain.
18

IV

For the foregoing reasons, the judgment of the district court

is 

Affirmed.
ROGERS, Circuit Judge, concurring. Although I agree that

the judgment of conviction must be affirmed, I would hold that

Andrews has failed to show plain error with respect to her Brady

challenge and, without joining unnecessary discussion of the

termination date of the conspiracy, with respect to the district

court’s application of the 2006 edition of the Sentencing

Guidelines. 

I.

I agree that the notes at issue constituted Brady material,

Op. at 9, which the prosecutor was required to turn over to

defense counsel prior to trial pursuant to the district court’s

order and long-established precedent, see, e.g., United States v.

Harrison, 524 F.2d 421, 427 (D.C. Cir. 1975). The failure to do

so is particularly troubling because the prosecutor knew of the

notes prior to Andrews’ defense counsel’s accidental discovery

of their existence while cross-examining Agent Robinson at

trial. Trial Tr. 679-80 (July 26, 2006). I do not agree, however,

that production of the notes was nonetheless timely. Op. at 12.

Brady requires early enough disclosure that a defendant can

make meaningful use of material. Cf. United States v. Wilson,

160 F.3d 732, 742 (D.C. Cir. 1998); United States v. Dean, 55

F.3d 640, 663 (D.C. Cir. 1995). Contrary to the court’s view, it

seems highly implausible to suggest that defense counsel could

have restructured his defense to save the best for last, Op. at 12,

or more generally that a defense trial strategy, any more than a

prosecution trial strategy, can be effectively reworked four days

into trial, at the close of the government’s case, cf. Op. at 11-12.

The prosecution’s tardy disclosure forced Andrews’ counsel to

choose between recalling a strong government witness after a

mid-trial continuance and risk cementing her testimony more

firmly in the mind of the jury, or not impeaching the witness at

all. Whatever the merits of defense counsel’s effort to navigate

a middle course, stating that the defense would not recall Agent

Robinson as its witness but ensuring that the notes would be
2

1

 Exactly how Agent Robinson might have explained the

omissions, and how the jury would have assessed any such

explanation, are hypotheticals to which the government responds with

mere speculation. See Op. at 9-10. 

2

 Although the government suggests the notes can be

construed as referring to using a check to prove possession of a

checking account, Op. at 9-10; Resp. Br. at 17, one searches the notes

in vain for such a reference.

available for impeachment if the government did, Trial Tr. 718

(July 27, 2006), it was a strategic decision forced by the

prosecutor’s delay. So understood, the defense case was

compromised, no matter the “tactics” Andrews’ counsel

deployed following his receipt of the notes.1

The significance of the prosecutor’s delay in producing the

notes is manifest. Agent Robinson’s testimony was an

important part of the government’s case, which was not

overwhelming to begin with, because her description of the

interview with Andrews tied together a set of otherwise

circumstantial facts. Recognizing this, the prosecutor focused

on the interview during closing argument, telling the jury that

Andrews attempted to “conceal . . . her involvement . . . by

coming up [with] one preposterous story after another,” Trial Tr.

900 (July 28, 2006), using Agent Robinson’s testimony to color

and frame facts that could otherwise be excused as a series of

innocent coincidences. While it is true that Agent Robinson’s

notes corroborate some of her damaging testimony, see Op. at

10, they omit any mention of two of the “preposterous stor[ies]”

relied on by the prosecutor at closing, specifically that Andrews

had stated she wanted to use the check to prove possession of a

checking account; and that Andrews claimed to have repaid

Turner in February 2001.2

 Although alerting the jury to these

omissions would not constitute a knock-out blow, it is at least
3

plausible that the jurors’ confidence in Agent Robinson’s

memory and veracity would have been undermined. Under

these circumstances, earlier disclosure of the notes could have

allowed a different, more effective defense strategy and their

tardy handover “‘undermine[s] confidence in the outcome’” of

the trial, Dean, 55 F.3d at 663 (quoting United States v. Bagley,

473 U.S. 667, 682 (1985)), and thus constitutes a Brady

violation. 

 Unfortunately for Andrews, her burden is greater than

simply showing a “reasonable probability” of a different verdict,

Strickler v. Greene, 527 U.S. 263, 280 (1999); because no

objection to the delayed handover was made in the district court,

Op. at 12, she must now show plain error, see United States v.

Johnson, 437 F.3d 69, 74 (D.C. Cir. 2006), which she cannot do.

In particular, Andrews cannot show that the Brady violation

affected her “substantial rights.” Id. Under this part of the plain

error test, “the burden on prejudice is reversed, requiring the

defendant to show the error’s likely effect on the verdict.”

United States v. Wilson, 240 F.3d 39, 45 (D.C. Cir. 2001), citing

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

government presented significant circumstantial evidence tying

Andrews to the charged crimes. This included her ample

opportunities to access human resources files; her possession of

the knowledge necessary to insert a forged FEGLI form in

Mayo’s file; Turner’s payment of $1,000 to her in the form of a

check soon after he received his share of Mayo’s life insurance;

and the unchanging nature of her bank withdrawal habits in the

month she claimed to have repaid Turner. See Trial Tr. at 346-

51; 647-48; 650-51; 656-58 (July 25-26, 2006). To conclude

that the verdict would likely have been different, the court must

assume that in addition to the circumstantial evidence, Agent

Robinson’s testimony was necessary to the guilty verdict and

that impeachment of her on the basis of her notes would have

been sufficient to alter the verdict. While there is a reasonable
4

3

 For the reasons stated by the court, Op. 4 n.1, there was

sufficient evidence to support Andrews’ convictions for conspiracy

and bribery.

4

 Because Andrews did not make this objection in the district

court, our review is limited to plain error. See Johnson, 437 F.3d at

74. 

probability that timely disclosure of the notes could have led to

a different verdict, the impact of such disclosure is too uncertain

for Andrews to demonstrate that the verdict would likely have

been different.3

II.

With regards the ex post facto challenge to the sentence, I

would rely only upon the first basis the court identifies for

holding that the error was not plain, Op. at 14-15, and do not

join the dictum discussing the application of Grunewald v.

United States, 353 U.S. 391 (1957), and Foreman v. United

States, 361 U.S. 416 (1960), Op. at 15-17. Because the error by

the district court in using the 2006 edition of the Guidelines was

neither “‘clear’” nor “‘obvious,’” United States v. Sumlin, 271

F.3d 274, 281 (D.C. Cir. 2001) (quoting United States v. Olano,

507 U.S. 725, 734 (1993)),4

 the court need not opine that the

date that the conspiracy terminated is legally “uncertain[],” Op.

at 17.