Tavon Barber v. United States, 179 A.3d 883

Barber was convicted after a jury trial for two home-invasion burglaries and related offenses, including three counts of third-degree sexual abuse and eight counts of possession of a firearm during a crime of violence (PFCV).
Forensic DNA testing by the D.C. Department of Forensic Sciences (DFS) linked Barber and co-defendant DeAundre Williams to evidence from a stolen car and the crime scenes; DFS analyst Hopkinson testified but did not disclose statistical calculations underlying her conclusions.
The defense called Dr. Bruce Budowle at trial; he agreed with DFS’s allele calls and many inclusions/exclusions but disagreed with some of DFS’s statistical calculations and presented his own statistics to the jury.
After trial (but before sentencing), the U.S. Attorney’s Office convened a panel including Dr. Budowle that issued a report identifying systematic problems in DFS’s DNA mixture interpretation and statistical procedures.
Barber filed a Rule 33 motion for a new trial arguing the panel’s findings constituted newly discovered evidence undermining the DNA evidence and the verdict; the trial court denied the motion, concluding the DFS problems were impeachment-only and DNA evidence was not dispositive given strong non-DNA evidence (fingerprints, confession, witness ID, documentary evidence).

Issue	Barber's Argument	Government's Argument	Held
Whether post-trial disclosures about systematic problems at DFS constitute newly discovered evidence warranting a Rule 33 new trial	DFS’s systemic errors invalidate DNA interpretation in his case and would have undermined confidence in the verdict	DFS’s problems were limited to statistical calculations in other cases; Budowle testified at trial and provided correct stats; problems would only impeach Hopkinson and would not change outcome given overwhelming non-DNA evidence	Denied: disclosures were not material beyond impeachment and would not probably produce an acquittal; no abuse of discretion in denying Rule 33 motion
Whether multiple convictions (three third-degree sexual abuse counts; eight PFCV counts) merge into single counts under double jeopardy principles	The three sexual-abuse acts were a single continuous episode and should merge; PFCV counts likewise should not multiply punishment	Each charged act involved distinct conduct/impulses (slap, breast contact, handgun contact; and multiple discrete violent acts) — so counts are separate	Affirmed: sexual-abuse counts and PFCV counts do not merge because each act reflected a "fresh impulse" or distinct criminal act

Ingram v. United States, 40 A.3d 887 (D.C. 2012) (standard of review and trial court discretion on Rule 33 motions)
Porter v. United States, 826 A.2d 398 (D.C. 2003) (elements for newly discovered evidence under Rule 33)
Godfrey v. United States, 454 A.2d 293 (D.C. 1982) (trial court as thirteenth juror determining interest of justice)
Huggins v. United States, 333 A.2d 385 (D.C. 1975) (impeaching or cumulative evidence cannot support new trial on newly discovered evidence grounds)
Ellison v. United States, 919 A.2d 612 (D.C. 2007) ("fork-in-the-road" test for merger; distinct sexual acts can be separate offenses)
Sanchez-Rengifo v. United States, 815 A.2d 351 (D.C. 2002) (fact-based merger analysis; appreciable time and fresh impulse factors)
Jenkins v. United States, 980 A.2d 421 (D.C. 2009) (separate sexual acts reflecting different sexual urges constitute separate offenses)
Cullen v. United States, 886 A.2d 870 (D.C. 2005) (rapid successive contacts may not rise to separate offenses if no new impulse)
Stevenson v. United States, 760 A.2d 1034 (D.C. 2000) (PFCV convictions tied to distinct predicate armed offenses may be separately charged)
Spain v. United States, 665 A.2d 658 (D.C. 1995) (distinct violent acts during an episode can represent separate predicate offenses)