Legal Times , Vol. 23, No. 50
December 18, 2000

by Denise Ryan

Perjury of Expert; Motion for New Trial; Outcome No Different 

 The D.C. Circuit held that a defendant was not entitled to a new trial based on the perjury of one of the government's experts, which was discovered after the trial, because the outcome of the trial would not have been different.

 When Gregory Williams was arrested, he had 87 small plastic bags of heroin in his possession and 638 small plastic bags of heroin in his car. Williams was tried on a charge of possession with intent to distribute heroin. One of the government's witnesses, Detective Johnny Brown, answered questions about his qualifications as an expert and claimed that he was a pharmacist. The trial court qualified him as an expert and he testified that the number of bags of heroin that Williams had in his possession would not have been for personal use. The jury convicted Williams.

 After the conviction, Williams' attorney discovered that Brown was not a pharmacist, which the prosecution also did not know. Williams filed a motion for a new trial under Federal Rule of Criminal Procedure 33. The trial court denied the motion and Williams appealed.

 The court noted that Rule 33 merely states that a new trial may be granted if justice so requires, but there is no specific standard relating to the newly discovered evidence that perjury has occurred. The court rejected the standard in Larrison v. United States, 24 F.2d 82 (7th Cir. 1929), that a new trial is required for perjured testimony if the jury might have reached a different conclusion, because it addressed only what might have happened rather than what would likely have occurred.

 The court stated that United States v. Thompson, 188 F.2d 652 (D.C. Cir. 1951), is the standard for Rule 33 motions, and in this case the court determined that it would join the other circuits in rejecting Larrison. The court found Thompson to be the more appropriate test when the prosecution was unaware of the perjury by its witness until after trial because it looks ahead and evaluates the outcome of a new trial. The court applied Thompson and found that if Williams were retried, the outcome of the trial would not be different, and therefore the court affirmed the judgment of the trial court.

 Judge A. Raymond Randolph's opinion was joined by Judges Stephen Williams and David Tatel.