UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ ) UNITED STATES OF AMERICA ) ) v. ) Criminal No. 10-0051-4 (PLF) ) ALONZO MARLOW, ) ) Defendant. ) ____________________________________)

OPINION

This matter is before the Court on defendant Alonzo Marlow’s pro se motion

[Dkt. No. 593] to vacate, set aside, or correct his sentence under

, as amended

by his supplemental motion [Dkt. No. 630] to vacate his conviction and order a new trial

pursuant to

. The United States opposes the motion. Upon careful

consideration of the parties’ papers, the relevant legal authorities, and the entire record in this

case, the Court will deny Mr. Marlow’s motion. 1

1 The Court reviewed the following documents and accompanying exhibits in connection with the pending motion: Superseding Indictment as to Mark Pray, Kenneth Benbow, Alonzo Marlow, et al. (“Superseding Indictment”) [Dkt. No. 88]; Transcript of February 6, 2012 morning trial proceedings (“Feb. 6, 2012 AM Trial Tr.”) [Dkt. No. 397]; Transcript of February 6, 2012 afternoon trial proceedings (“Feb. 6, 2012 PM Trial Tr.”); Transcript of February 7, 2012 morning trial proceedings (“Feb. 7, 2012 AM Trial Tr.”) [Dkt. No. 398]; Transcript of February 7, 2012 afternoon trial proceedings (“Feb. 7, 2012 PM Trial Tr.”); Transcript of February 16, 2012 morning trial proceedings (“Feb. 16, 2012 AM Trial Tr.”) [Dkt. No. 403]; Transcript of February 21, 2012 morning trial proceedings (“Feb. 21, 2012 AM Trial Tr.”) [Dkt. No. 404]; Transcript of February 22, 2012 morning trial proceedings (“Feb. 22, 2012 AM Trial Tr.”) [Dkt. No. 406]; Transcript of February 23, 2012 morning trial proceedings (“Feb. 23, 2012 AM Trial Tr.”) [Dkt. No. 407]; Transcript of February 27, 2012 morning trial proceedings (“Feb. 27, 2012 AM Trial Tr.”) [Dkt. No. 408]; Transcript of February 28, 2012 morning trial proceedings (“Feb. 28, 2012 AM Trial Tr.”) [Dkt. No. 475]; Transcript of February 28, 2012 afternoon trial proceedings (“Feb. 28, 2012 PM Trial Tr.”); Transcript of March 1, 2012 morning trial proceedings (“March 1, 2012 AM Trial Tr.”) [Dkt. No. 477]; I. BACKGROUND AND PROCEDURAL HISTORY

Defendant Alonzo Marlow’s criminal case arises from his involvement in an

interstate drug conspiracy. Mark Pray, a co-defendant of Mr. Marlow’s in the instant case, was

the leader of a drug distribution organization operating out of the Barry Farm public housing

complex in Washington, D.C. See United States v. Danson, Criminal No. 10-0051,

, *1 (D.D.C. June 25, 2020) (explaining that the nature of the enterprise was to

“obtain as much money and things of value as possible through the trafficking of controlled

substances”); see also Feb. 7, 2012 PM Trial Tr. at 4-5. As a result of his involvement with the

organization, Mr. Marlow was charged with and convicted of several drug-related crimes and

several violent crimes. See Verdict Form at 18-23. Among those crimes were the murders of

Crystal Washington and Jheryl Hodge. See

. Those convictions are the subject of

this motion.

A. The Murder of Crystal Washington

Testimony offered at Mr. Marlow’s trial established the connection between

Crystal Washington and Mr. Marlow. For example, Assistant United States Attorney (“AUSA”)

Mona Sahaf testified concerning conversations she had with Crystal Washington prior to Ms.

Transcript of March 5, 2012 morning trial proceedings (“March 5, 2012 AM Trial Tr.”) [Dkt. No. 478]; Transcript of March 21, 2012 morning trial proceedings (“March 21, 2012 AM Trial Tr.”); Verdict Form as to Mark Pray, Kenneth Benbow, and Alonzo Marlow (“Verdict Form”) [Dkt. No. 396]; Mr. Marlow’s Notice of Appeal to D.C. Circuit (“Notice of Appeal”) [Dkt. No. 463]; Transcript of June 21, 2012 Sentencing Proceedings (“Sentencing Tr.”) [Dkt. No. 520]; Mr. Marlow’s pro se Motion to Vacate, Set Aside, or Correct Sentence Under

(“Mot. to Vacate”) [Dkt. No. 593]; Supplement to Defendant’s Motion to Vacate (“Supp. Mot. to Vacate”) [Dkt. No. 630]; United States’ Opposition to Defendant’s Motion to Vacate (“Gov’t Opp.”) [Dkt. No. 641]; letter from U.S. Attorney’s Office regarding Firearms Examination Unit (“FEU Letter”) [Dkt. No. 641-1]; Summary of Firearms Examination Errors (“Exam Summary”) [Dkt. No. 641-2]; and Mr. Marlow’s Reply to the United States’ Opposition (“Reply”) [Dkt. No. 689].

2 Washington’s death. Feb. 6, 2012 PM Trial Tr. at 61. During those conversations, AUSA Sahaf

learned that Mr. Pray’s organization used Ms. Washington’s house to prepare and package crack

cocaine, marijuana, and phenylcyclohexyl piperidine (PCP).

; Feb. 7, 2012 PM Trial Tr.

at 7-9. Officer John McElhenny of the Metropolitan Police Department also testified at Mr.

Marlow’s trial. He stated that on September 1, 2006, he, along with two other officers,

responded to a reported burglary at Ms. Washington’s house. Feb. 6, 2012 AM Trial Tr.

at 18-21. When they arrived, the officers found Mr. Pray, Ms. Washington, and several other

members of Mr. Pray’s organization, along with a “large quantity of narcotics.”

.

The officers placed the individuals at the scene under arrest.

.

Other testimony at Mr. Marlow’s trial established Ms. Washington’s role in the

criminal cases against Mr. Pray and members of his organization. In particular, AUSA Courtney

Saleski testified at trial that Ms. Washington ultimately entered into a plea agreement with

prosecutors and testified against Mr. Pray before a grand jury. Feb. 6, 2012 PM Trial Tr.

at 74-78. AUSA Saleski stated that Ms. Washington also agreed to testify against Mr. Pray at

trial.

. Mr. Pray was subsequently indicted on November 12, 2008, along with other

members of his organization. Feb. 7, 2012 AM Trial. Tr. at 7. Consistent with Ms.

Washington’s plea agreement, she was released to a halfway house in February 2009, where she

lived during the months leading up to Mr. Pray’s trial. Feb. 6, 2012 PM Trial Tr. at 28-29. The

trial was scheduled to begin on April 13, 2009. On April 10, 2009, Ms. Washington was shot

and killed outside of her place of work. Feb. 7, 2012 PM Trial Tr. at 60.

Mr. Marlow was charged with the murder of Ms. Washington. Superseding

Indictment at 39. Marvin Benton, a co-defendant in Mr. Pray’s criminal case in Superior Court,

testified as a cooperating witness at Mr. Marlow’s trial. See Feb. 16, 2012 AM Trial Tr.

3 at 94, 121. He testified that in the spring of 2009, he learned the location of the halfway house

where Ms. Washington was residing. Feb. 21, 2012 AM Trial Tr. at 11. He shared that

information with Mr. Pray on March 14, 2009.

. Several days later, Mr. Benton

heard from his cellmate, another high-level member of Mr. Pray’s organization, that Mr. Marlow

planned to attend the next court hearing.

. Mr. Benton testified that he understood that

Mr. Marlow wanted to confirm Ms. Washington’s identity at the hearing so that he could later

kill her.

. On March 20, 2009, Mr. Benton saw Mr. Marlow at a hearing in

Superior Court during which the prosecutor identified Ms. Washington as a trial witness for the

government.

. Ms. Washington was shot and killed on April 10, 2009. The day after

her murder, Mr. Benton’s cellmate showed him a newspaper article regarding the murder and

stated that it “was [Mr. Marlow’s] work.”

.

Other evidence supported Mr. Benton’s testimony. John Defant, the vice

president of hardware design at 3M Electronic Monitoring, testified about global positioning

system (“GPS”) data related to Mr. Marlow’s case. See March 1, 2012 AM Trial Tr. at 4-6. He

testified that Mr. Marlow began wearing a GPS tracking device on April 9, 2009, one day before

Ms. Washington’s murder.

. He further testified that GPS data show that, on

April 10, 2009, Mr. Marlow’s device was stationary near Ms. Washington’s workplace for more

than an hour prior to her murder.

. At the time of the murder, Mr. Marlow’s device

moved at a high speed toward the lot where the shooting took place.

. One minute after

the murder, the GPS device had traveled one block away from the scene.

It then traveled to

the Barry Farm housing complex, reaching speeds of up to 67 miles per hour.

. The

testimony of Special Agent Scott Eicher of the FBI’s Cellular Analysis and Survey Team also

supported Mr. Benton’s testimony. Agent Eicher stated that cell-site data from Mr. Marlow’s

4 phone indicated that Mr. Marlow was in the vicinity of the crime scene at the time of the murder.

March 5, 2012 AM Trial Tr. at 68-69.

Some evidence at trial did not support the prosecution. For example, Luciano

Morales, a firearms examiner with the Metropolitan Police Department’s Firearms Examination

Branch, determined that a .40-caliber pistol recovered from Mr. Marlow’s home “did not fire the

cartridge casings recovered” from the scene of Ms. Washington’s murder. March 14, 2012 Trial

Tr. at 36. At trial, the parties stipulated to this firearms comparison.

B. The Murder of Jheryl Hodge

On July 23, 2009, Lamare Larkins, a high-level member of Mr. Pray’s

organization, and his step-brother were shot. Officer Bryan Kasul of the Metropolitan Police

Department testified about the shooting at Mr. Marlow’s trial. See Feb. 22, 2012 AM Trial Tr.

at 102. He stated that Mr. Larkins survived the shooting, but his step-brother died from his

injuries.

. Witnesses indicated that one of the shooters was the brother of a man

named Jheryl Hodge.

. When Officer Kasul spoke to Mr. Larkins, however, he

denied knowing the identity of his assailants. See

.

Mr. Marlow was incarcerated at the time of the assault on Mr. Larkins, but he was

released on December 30, 2009. Feb. 28, 2012 PM Trial Tr. at 33-34. Two weeks later, on

January 13, 2010, Jheryl Hodge was shot and killed. Feb. 23, 2012 AM Trial Tr. at 26. At trial,

the prosecution presented evidence that Mr. Marlow was the perpetrator. Lawson White, another

member of Mr. Pray’s organization, testified at Mr. Marlow’s trial. He stated that on the day of

Mr. Hodge’s murder, Mr. Marlow called Mr. White and then came over to his house and asked

for a gun. Feb. 28, 2012 AM Trial. Tr. at 18-20. Mr. Marlow told Mr. White that he had seen

someone at Barry Farm who “killed his man.”

. Mr. White supplied Mr. Marlow with

5 a .40-caliber Glock and drove Mr. Marlow to the alley where the murder took place.

. Mr. White testified that Mr. Marlow exited the vehicle and walked behind a dumpster,

while Mr. White stayed in the car.

. When Mr. Marlow returned to the car, he told Mr.

White that he “just crushed this dude” and instructed Mr. White to dispose of the gun.

.

Again, Mr. Defant of 3M Electronic Monitoring testified regarding Mr. Marlow’s

GPS tracking data on the day of the murder. March 1, 2012 AM Trial Tr. at 61-64. He stated

that Mr. Marlow’s device was recorded moving toward the alley and dumpster where Mr. Hodge

was killed, at the time he was killed. See

. One minute later, his device was recorded

moving in the opposite direction, back to the point where it had started from.

.

Cell-site data, testified to by FBI Special Agent Catherine Hanna, corroborate the GPS data. See

March 5, 2012 AM Trial Tr. at 46-49.

Officer Thomas Coughlin of the Metropolitan Police Department’s crime scene

search unit was among those who responded to the scene of the Hodge murder. Feb. 27, 2012

AM Trial Tr. at 7-9. At trial, he testified that officers recovered fourteen ammunition casings

from the scene.

. The parties stipulated that Daniel Barrett, a firearms examiner with

the Metropolitan Police Department’s Firearms Examination Branch (“FEB”), determined that

the fourteen casings had all been fired from the same .40-caliber firearm. See Feb. 28, 2012 PM

Trial Tr. at 35-36 (reading Government Exhibit 2031, Stipulation of Testimony Regarding

Firearms Comparisons, into the record). A civilian crime scene technician, Shannon Gill, also

testified at trial. See

. She stated that eleven days after the Hodge murder, on

January 24, 2010, officers recovered twenty-two ammunition casings from Mr. White’s house,

where he often fired test rounds.

. The parties stipulated that the FEB determined

that six casings from Mr. White’s house had been fired from the same .40-caliber firearm that

6 fired the fourteen casings from the scene of the Hodge murder.

. Finally, the parties

stipulated that Mr. Barrett determined that a .40-caliber Smith and Wesson found in Mr. White’s

house did not fire any of the matching .40-caliber casings.

In his closing argument at trial, counsel for Mr. Marlow relied on the firearms

stipulations to argue that Mr. White was a stronger suspect for the murder of Mr. Hodge. See

March 21, 2012 AM Trial Tr. at 128-30. He pointed out that the firearms evidence linked Mr.

White to the gun used to kill Mr. Hodge.

(telling the jury “January 24th, 2010, that

same gun [used] in . . . the Hodge murder is in the hands again of Lonnie White. And you have

the stipulation”). Based on the stipulated-to firearms evidence, Mr. Marlow suggested that Mr.

White was the perpetrator of the Hodge murder.

C. Direct Appeal

On April 3, 2012, after an eight-week jury trial before Judge Rosemary Collyer,

who presided over this case prior to her retirement, Mr. Marlow was convicted of the murders of

Ms. Washington and Mr. Hodge, along with various drug-related crimes. See Verdict Form at

18-24. Judge Collyer sentenced Mr. Marlow to two counts of life imprisonment without parole

for the murders. Sentencing Tr. at 27. Mr. Marlow timely appealed his conviction to the United

States Court of Appeals for the District of Columbia Circuit, see Notice of Appeal, and the court

of appeals affirmed Mr. Marlow’s murder convictions, United States v. Benbow,

(D.C. Cir. 2018). The court stated that “ample evidence showed . . . that Marlow

murdered Hodge to avenge the murder of a member of Pray’s organization.”

. It further

stated that, “[a]s to the convictions related to Washington’s murder . . . : Those charges were

overwhelmingly proved by cooperating witness testimony corroborated by physical

evidence . . . .”

.

7 D. Firearms Examination Errors

On December 7, 2016, Daniel Barrett, one of the firearms examiners involved in

Mr. Marlow’s case, undertook a routine proficiency examination and erred in one firearms

comparison. FEU Letter at 1. As a result of that error, the D.C. Department of Forensic

Sciences (“DFS”) “suspended Firearms Examiner Barrett from casework and undertook a review

of [a portion of] Mr. Barrett’s cases since his last successful proficiency examination in

August 2015.” Id. at 2. A review of nineteen cases revealed that Mr. Barrett had erred in a 2016

case involving the same type of weapon and ammunition as had been used in the murder of

Mr. Hodge. Specifically, Mr. Barrett had identified ten .40-caliber cartridge cases as all having

been fired from the same Glock-style pistol. Re-examination by another firearms examiner,

however, revealed that four of the cartridge cases were fired from one Glock-style pistol, while

six of the cartridge cases were fired from a different Glock-style pistol. See Exam Summary

at 1. Mr. Barrett’s erroneous comparison had been verified by Luciano Morales, another

firearms examiner who had conducted firearms comparisons in Mr. Marlow’s case. See id.

The United States Attorney’s Office sent a letter to the D.C. Public Defender

Service, the Federal Public Defender, and the Criminal Justice Act Panel, notifying them of the

error. See FEU Letter. The letter stated that Mr. Morales was no longer employed by DFS and

that DFS would no longer be sponsoring Mr. Barrett as an expert witness. Id. at 1. It further

stated that DFS was undertaking a complete review of all cases worked by Mr. Barrett since his

last successful proficiency test in 2015, as well as past cases worked by Mr. Morales. Id. at 2.

The comprehensive review ultimately revealed two additional errors committed by Mr. Barrett –

one in a 2015 case and one in a 2016 case. See Exam Summary at 3. The reports that contained

the errors were all issued in 2016. See id. at 1, 3, 6.

8 II. LEGAL STANDARD

A. Section 2255

A federal prisoner may move to vacate, set aside, or correct a sentence if he

believes that the sentence was imposed “in violation of the Constitution or laws of the United

States, or that the court was without jurisdiction to impose such sentence, or that the sentence

was in excess of the maximum authorized by law, or is otherwise subject to collateral

attack.”

. “The circumstances under which such a motion will be granted,

however, are limited in light of the premium placed on the finality of judgments and the

opportunities prisoners have to raise most of their objections during trial or on direct appeal.”

United States v. Clark,

(D.D.C. 2019) (quoting United States v.

Henry,

(D.D.C. 2011)). To obtain relief under Section 2255, a prisoner

must “clear a significantly higher hurdle than would exist on direct appeal.” United States v.

Frady,

(1982). “The burden of proof is on the petitioner to demonstrate his

right to relief under § 2255 by a preponderance of the evidence.” United States v. Tanguay,

No. 08-CR-271-RCL-5,

, at *2 (D.D.C. May 26, 2020). “If it plainly appears

from the motion, any attached exhibits, and the record of prior proceedings that the moving party

is not entitled to relief, the judge must dismiss the motion.” United States v. Henry,

(quoting Rules Governing Section 2255 Proceedings for the United States

District Courts, Rule 4(b)).

B. Rule 33

Although there is substantial overlap with Section 2255, “Rule 33 is clearly a step

in the criminal proceeding, while Section 2255 is ‘arguably an independent civil action.’”

United States v. Clark,

(quoting 3 CHARLES A. WRIGHT & SARAH N.

9 WELLING, FED. PRAC. & PROC. CRIM. § 591 (4th ed. 2011)). Originally, it “was not [Rule 33’s]

purpose to meet the problems involved in habeas corpus proceedings or a collateral attack upon a

judgment.” Id. (quoting Duggins v. United States,

(6th Cir. 1957)). Those

proceedings are most appropriately brought under Section 2255. See

Generally, “Rule 33 deals with contentions that evidence discovered after trial

shows that the accused is innocent.” United States v. Rollins,

(7th Cir. 2010).

To support a motion under Rule 33 based on newly discovered evidence, a defendant must

satisfy five requirements:

(1) the evidence must have been discovered since the trial; (2) the party seeking the new trial must show diligence in the attempt to procure the newly discovered evidence; (3) the evidence relied on must not be merely cumulative or impeaching; (4) it must be material to the issues involved; and (5) [it must be] of such nature that in a new trial it would probably produce an acquittal.

United States v. Johnson,

(D.C. Cir. 2008) (quoting United States v.

Lafayette,

(D.C. Cir. 1993)). “Any motion for a new trial grounded on

newly discovered evidence must be filed within three years after the verdict or finding of guilty.”

FED. R. CRIM. P. 33(b)(1).

C. Construing the Motion

The issue of whether a motion should be construed as arising under Section 2255

or Rule 33 arises regularly. Generally, courts are “not bound by a pro se litigant’s

characterization of his cause of action.” Williams v. Gonzales,

(D.D.C. 2008). Instead, “[f]ederal courts sometimes will ignore the legal label that a pro

se litigant attaches to a motion and recharacterize the motion in order to place it within a

different legal category.” Castro v. United States,

(2003) (collecting cases).

Courts “may do so in order to avoid an unnecessary dismissal, to avoid inappropriately stringent

10 application of formal labeling requirements, or to create a better correspondence between the

substance of a pro se motion’s claim and its underlying legal basis.”

(citations

omitted).

A court “must determine the proper characterization of a filing by the nature of

the relief sought.” Williams v. Gonzales,

. Ultimately, “any motion filed

in the district court that imposed the sentence, and substantively within the scope of § 2255 [ ], is

a motion under § 2255.” United States v. Clark,

, 1289 (D.C. Cir. 2020) (quoting

Trenkler v. United States,

(1st Cir. 2008)). Courts thus tend to give petitioners,

particularly pro se petitioners, “the benefit of the doubt.” United States v. Clark, 977 F.3d

at 1289.

III. DISCUSSION

Mr. Marlow filed a pro se Section 2255 motion in September 2018. See Mot. to

Vacate. The Court subsequently appointed counsel to represent Mr. Marlow in these

proceedings. On November 22, 2019, Mr. Marlow, through counsel, filed a supplemental

motion to vacate. See Supp. Mot. to Vacate. The parties disagree about whether the motion to

vacate is more properly construed as arising under Section 2255 or Rule 33. See Gov’t Opp.

at 18; Mot. to Vacate; Supp. Mot. to Vacate. Indeed, Mr. Marlow himself seems uncertain about

which standard should govern. He fashions his pro se filing as a Section 2255 motion. See Mot.

to Vacate at 1. His supplemental motion, filed by counsel, is likewise labeled as a 2255 motion,

see Supp. Mot. to Vacate at 1, but it cites to Rule 33 and discusses three of the five requirements

for a new trial under that rule, see id. at 3. Finally, in his reply, Mr. Marlow states that he “is not

making a specific Rule 33 claim,” but then he goes on to concede that because “we have newly

11 discovered information, [sic] that impacts evidentiary concerns . . . it seems appropriate to view

the issues through the prism of Rule 33 jurisprudence.” Reply at 3.

Ultimately, the Court need not resolve the question of whether Mr. Marlow’s

motion is more properly construed as a Section 2255 or Rule 33 motion because under either

provision, Mr. Marlow’s motion must be denied.

A. Section 2255

Assuming Mr. Marlow accurately characterizes this motion as arising under

, the motion must be denied. Mr. Marlow’s briefing can be read as raising two

constitutional issues: a Brady violation and a violation of his Sixth Amendment confrontation

rights. Each claim fails on the merits.

1. Brady v. Maryland

Mr. Marlow argues that the prosecutors in his case failed to carry out their

“fundamental exculpatory discovery obligation” by not disclosing information that would have

called into question the testimony of the two firearms experts. See Supp. Mot. to Vacate at 3;

Reply at 3 (citing Brady v. Maryland,

(1963)). To prevail on a Brady claim, the

movant must satisfy three requirements: “[1] The evidence at issue must be favorable to the

accused, either because it is exculpatory, or because it is impeaching; [2] that evidence must

have been suppressed by the [government], either willfully or inadvertently; and [3] prejudice

must have ensued.” United States v. Flynn,

, 26 (D.D.C. 2019)). “To satisfy

the prejudice component, the defendant must show that ‘there is a reasonable probability that,

had the evidence been disclosed to the defense, the result of the proceeding would have been

different.’” United States v. Sitzmann,

(D.C. Cir. 2018) (quoting United

States v. Bagley,

(1985)).

12 First, Mr. Marlow has pointed to no case law – and this Court can find none –

establishing that the prosecution has a duty to disclose evidence that does not exist at the time of

trial. Even assuming such a requirement could be imposed on the prosecution, however, Mr.

Marlow has failed to show prejudice as to the murder of Mr. Hodge. Mr. Marlow states that he

did not present a third party perpetrator defense at trial, “in large part [because of] forensic

testing with respect to specific firearms/calibers.” Supp. Mot. to Vacate at 2. Specifically, he

states that “the expert testimony provided by [Mr. Barrett] effectively excluded a credible

suspect, [Mr. White], from a crime scene,” thus preventing Mr. Marlow from arguing that Mr.

White was the perpetrator of the Hodge murder. Id. at 3. But Mr. Marlow did present a third

party perpetrator defense at trial, and he used the firearms stipulations to do so. See March 21,

2012 AM Trial Tr. at 128-30 (arguing that Mr. White was more likely than Mr. Marlow to be the

perpetrator because the stipulations linked Mr. White to the gun used to kill Mr. Hodge). Thus,

even if Mr. Marlow had been made aware of any hypothetical issues with the firearms evidence,

he would have been forced to choose between one strategy – using the firearms examinations to

support a third party perpetrator defense – and a second strategy – calling into question the

firearms examinations. Mr. Marlow has not shown that the second strategy would have

produced a different result in his trial. This is particularly true in light of the fact that the Mr.

Marlow’s conviction for the Hodge murder is supported by an abundance of GPS data, cell-site

data, and eyewitness testimony.

In addition, Mr. Marlow does not explain how evidence of the firearms

examiners’ errors would have led to a different result with respect to the murder of Ms.

Washington, and the Court fails to see how he could make such an argument. The parties

stipulated to the fact that a gun found at Mr. Marlow’s residence did not fire the casings in the

13 Washington murder. See March 14, 2012 Trial Tr. at 36. This stipulation supported Mr.

Marlow’s defense at trial, rather than undermining it. It is possible that Mr. Marlow could have

devised a different trial strategy if he had somehow known that the firearms examiners would err

years after his trial, though he fails to explain what that strategy would have been. In any event,

Mr. Marlow has not established a reasonable probability that the outcome of his trial would have

been different had he been apprised of the potential for errors in future firearms examinations.

This conclusion is bolstered by other compelling evidence against him. He has therefore failed

to show prejudice as to the murder of Ms. Washington.

2. Sixth Amendment

Mr. Marlow does not allege a Sixth Amendment violation in either his pro se

motion or his supplemental motion. See generally Mot. to Vacate; Supp. Mot. to Vacate.

Instead, he simply argues that the “the ability to [cast] doubt upon the testimony of the two

forensic experts had the potential to make a crucial difference to the jury’s assessment of the

evidence as a whole.” Supp. Mot. to Vacate at 3. Only in his reply brief does Mr. Marlow

finally clarify that a Sixth Amendment argument is “at the heart of his Motion.” Reply at 2.

Arguments made for the first time in reply briefs are generally considered waived. See United

States v. Ford,

, 38 (D.D.C. 2016) (citing In re Asemani,

(D.C. Cir. 2006)). The Court nevertheless will address the Sixth Amendment confrontation

argument on its merits.

Mr. Marlow argues that his confrontation rights were violated by his inability to

effectively cross-examine the two firearms examiners identified in the FEU Letter. Reply at 2.

The Sixth Amendment guarantees the right to effective cross-examination. See Davis v. Alaska,

(1974). This includes the ability to call into question the reliability and

14 expertise of a witness. See, e.g., Delaware v. Van Arsdall,

, (1986) (“We think

that a criminal defendant states a violation of the Confrontation Clause by showing that he was

prohibited from engaging in otherwise appropriate cross-examination [that would] . . . ‘expose to

the jury the facts from which jurors . . . could appropriately draw inferences relating to the

reliability of the witness.’”).

Mr. Marlow has not shown that he was denied the opportunity to effectively

cross-examine the firearms examiners at trial. As an initial matter, those firearms examiners did

not testify at trial because the parties stipulated to the firearms evidence. See Feb. 28, 2012 PM

Trial Tr. at 34 (reading out stipulation of testimony concerning firearms comparisons). In other

words, the defense agreed to forgo cross-examination of the firearms examiners. More to the

point, the evidence that has only recently come to light concerning Mr. Barrett and Mr. Morales

simply did not exist at the time of Mr. Marlow’s trial. Even now, there exists no evidence that

the firearms examiners erred in Mr. Marlow’s case or in any other case prior to 2015. See FEU

Letter at 3. Mr. Marlow cites no cases holding that a Sixth Amendment violation arises when

evidence is later discovered that did not exist at the time of trial and does not directly bear on the

defendant’s case, and the Court has found no such cases. Mr. Marlow has failed to establish a

violation of his Sixth Amendment confrontation rights. 2

2 The Court notes that the issues surrounding the D.C. Department of Forensic Sciences (“DFS”) and its Firearms Examination Unit (“FEU”), including its recent loss of accreditation, are very serious. For two reasons, however, these issues do not affect the Court’s conclusions here. First, the firearms examinations in Mr. Marlow’s case were conducted by employees of the Metropolitan Police Department’s Firearms Examination Branch (“FEB”), not by employees of the FEU. Indeed, the FEU only became operational in October 2012, several months after Mr. Marlow’s trial. See About the DFS, DC.GOV, https://dfs.dc.gov/page/about-dfs (last visited 6/14/2021). The Court recognizes that two of the firearms examiners in Mr. Marlow’s case left the FEB and went on to work for the FEU. Nonetheless, there is no evidence that the FEB was suffering from the same supervision and management problems that now plague the FEU. Second, Mr. Marlow’s trial occurred in 2012, and the firearms examiners’

15 B. Rule 33

The United States argues that, if construed as a motion for a new trial based on

newly discovered evidence, the motion should be denied as time-barred. Gov’t Opp. at 19. The

Court agrees. Rule 33 of the Federal Rules of Criminal Procedure clearly states that a motion for

a new trial based on newly discovered evidence must be filed within three years of the verdict or

guilty finding. See FED. R. CRIM. P. 33(b)(1). Neither the rule nor case law provide for any

exceptions to this time bar. See generally FED. R. CRIM. P. 33; cf. Eberhart v. United States,

(2005) (characterizing Rule 33 time limitations as “claim-processing rules” that

“assure relief to a party properly raising them, but do not compel the same result if the party

forfeits them”). Mr. Marlow was convicted on April 3, 2012. Because Mr. Marlow did not file

this motion until 2018 at the earliest, it would be time-barred if construed as a Rule 33 motion.

Even if the motion were timely filed, it would fail to satisfy at least two of the five

requirements necessary to merit a new trial. See United States v. Johnson,

.

First, the newly discovered evidence is merely impeaching.

Mr. Marlow asserts that his

confrontation rights were violated because “the scope of [the] cross-examination [of Mr. Barrett

and Mr. Morales] did not include what would later come to light as fundamental errors on their

part in the general area of examination of firearms and ballistics: the area in which they were

qualified as expert witnesses.” Reply at 2 (emphasis added). In other words, Mr. Marlow argues

that if he had known of the firearms examiners’ later mistakes, he would have been able to

impeach their testimony or even challenge their status as experts. Notwithstanding the fact that

errors occurred years later, in 2015 and 2016. These errors therefore have no bearing on Mr. Marlow’s case. For these reasons, and because Mr. Marlow has not produced any evidence that the FEU erred in his case, this Court concludes that the ongoing issues concerning the reliability of the work of the FEU do not affect its decision on this motion.

16 the firearms examiners’ errors were not discovered until years after Mr. Marlow’s trial, and were

unrelated to his case, evidence that is merely impeaching does not merit a new trial. Moreover,

for the same reasons that Mr. Marlow cannot show prejudice to establish a Brady violation, see

Section IV(A)(1), supra, he has not shown that the evidence is of “such nature that in a new trial

it would probably produce an acquittal,” United States v. Johnson,

.

IV. CONCLUSION

For the foregoing reasons, the Court will deny Mr. Marlow’s motion to vacate, set

aside, or correct his sentence under

. An Order consistent with this Opinion

will issue this same day.

SO ORDERED.

________________________ /s/ PAUL L. FRIEDMAN United States District Judge

DATE: July 8, 2021

17