# James Brown v. United States

> Court of Appeals for the Third Circuit · May 31, 1977 · 556 F.2d 224

URL: https://www.frixlaw.com/law-library/cases/9463870

## Case

- **Full name:** James BROWN, Appellant, v. UNITED STATES of America
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** May 31, 1977
- **Citations:** 556 F.2d 224; 1977 U.S. App. LEXIS 13157
- **Precedential status:** Published
- **Opinion:** Dissent by Gibbons
- **Judges:** Van Dusen, Gibbons, Garth
- **Cited by:** 13 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

GIBBONS, Circuit Judge,
dissenting.
In Mooney v. Holohan, 294 U.S. 103, 112 , 55 S.Ct. 340, 342 , 79 L.Ed. 791 (1935) the Court said:
[Due Process] is a requirement that cannot be deemed to be satisfied by mere notice and hearing if a State has contrived a conviction through the pretense of a trial which in truth is but used as a means of depriving a defendant of liberty through a deliberate deception of Court and jury by the presentation of testimony known to be perjured. Such a contrivance by a State to procure the conviction and imprisonment of a defendant is as inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimidation. And the action of prosecuting officers on behalf of the State, like that of administrative officers in the execution of its laws, may constitute state action within the purview of the Fourteenth Amendment.
Just so with the fifth amendment. Never since Mooney v. Holohan, supra, has the Court departed from the rule that a prosecutor’s knowing use of perjured testimony is, in and of itself, a violation of due process of law. As recently as United States v. Agurs, 427 U.S. 97, 103-64 , 96 S.Ct. 2392, 2397 , 49 L.Ed.2d 342 (1976) Justice Stevens, distinguishing the three separate situations which may be covered by the rule of Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963), observed:
In the first situation, typified by Mooney v. Holohan, 294 U.S. 103 , [ 55 S.Ct. 340 , 79 L.Ed. 791 ] the undisclosed evidence demonstrates that the prosecution’s case includes perjured testimony and that the prosecution knew, or should have known, of the perjury. 7 In a series of subsequent cases, the Court has consistently held that a conviction obtained by the knowing use of perjured testimony is fundamentally unfair, 8 and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury. . In those cases the Court has applied a strict standard of materiality, not just because they involve prosecutorial misconduct, but more importantly because they involve a corruption of the truth-seeking function of the trial process.
Justice Stevens went on to distinguish two other situations covered by Brady v. Mary *229 land, supra, as to which a more significant showing must be made; (1) pretrial requests for specific information, and (2) a general pretrial request for “Brady material.” 427 U.S. at 105-106 , 96 S.Ct. 2392 . Finally he discussed the prosecutor’s duty to volunteer exculpatory information in the absence of a request. In Agurs it was an arrest record which was withheld, “and [that] did not even arguably give rise to any inference of perjury.” 427 U.S. at 114 , 96 S.Ct. at 2402 . The Court held that the prosecutor’s failure to disclose it did not violate due process. Justice Stevens’ careful distinction of the knowing use of perjured testimony as a separate due process violation preserves intact the Mooney v. Holohan rule, which antedated Brady v. Maryland by 28 years.
As recently as United States v. McCrane, 547 F.2d 204, 205 (3d Cir. 1976) (per curiam), this Court, analyzing Agurs , recognized the distinction between the Mooney v. Holohan rule and the two other situations covered by Brady v. Maryland. We wrote:
In the first situation, typified by such cases as Giglio v. United States, 405 U.S. 150 , 92 S.Ct. 763 , 31 L.Ed.2d 104 (1972); Napue v. Illinois, 360 U.S. 264 , 79 S.Ct. 1173 , 3 L.Ed.2d 1217 (1959); and Mooney v. Holohan, 294 U.S. 103 , 55 S.Ct. 340 , 79 L.Ed. 791 (1935), the convictions must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury. This strict standard is applicable because the truth-seeking function of the trial has been compromised and prosecutorial misconduct was present.
The majority attempts to avoid the effect of the Mooney v. Holohan rule by legerdemain. In footnote 2, for example, appears the statement, “also, petitioner has failed to show that the Government knew of the alleged perjury at the time it used the testimony of Ms. Mozee.” The record is otherwise. The affidavit of Ms. Mozee filed in support of the § 2255 motion states:
I, Emma C. Mozee, would like to explain ny extent in my testimony against James Brown, 39385. I had mental treatment at Maricopa County Hospital in Phoenix because of the strain I was under from threats made to me and my children and also I was not treated right by the United States Government. The prosecuting attorney in the case was very much aware of the fact that I spent (4) days in the mental ward of Maricopa County Hospital when he put me on the stand. I was under extensive pressure from the government and I was just as afraid not to testify as I was of the threats made towards me for testifying. The hospital was told over the phone by special agent Wheatherbee in Pittsburgh to put me in the hospital. I passed out in the elevator in the Federal Building in Phoenix Arizona and was taken by ambulance to the county hospital. To this day, I do not know if my hospital bill has been paid by the government, yet I left and didn’t take anymore money from the government and they still said I had to testify in that case. So I feel I wasn’t justly treated by the government. I was used. (Emphasis supplied).
The italicized language is an unequivocal statement that the prosecuting attorney was aware that she had spent time in a hospital mental ward. In response to the motion the government filed the affidavit of the prosecuting attorney, which concedes that he was aware of the hospitalization and was told by Emma Mozee that she had been “committed to the mental ward of the hospital for treatment.”
When Ms. Mozee was on the stand, during cross examination she unequivocally denied that she had ever received psychiatric treatment. It is undisputed that she had previously told the prosecuting attorney otherwise, that he did nothing while she was on the stand to call that prior inconsistent statement to the attention of the court or the jury, and that when the defense attorney sought to have Ms. Mozee recalled for further cross examination on the subject, he actively opposed her recall, still without telling the court or defense counsel that her testimony was inconsistent with what she had told him.
*230 The government’s justification is in a paragraph of the prosecuting attorney’s affidavit. Admitting knowledge that Ms. Mozee was “committed to the mental ward of a hospital for treatment,” it draws the fine distinction that “. . . at no time did she ever indicate to me that she was treated for any mental illness.” Did he think she was in a mental ward for cancer? The prosecutor indicates that it was his “impression” that the reason for commitment to the mental ward “was that the normal wards were full and nothing was available, and/or that the commitment was in some way a spiteful retaliation, because of Ms. Mozee’s requests.” Against this “and/or” “impression” the prosecutor elected to let stand her flat denial of receiving mental treatment and opposed her recall for further cross examination on the question.
The majority concludes that the appellant Brown’s attorney'knew at the time of trial what the prosecutor knew. In reaching that conclusion it has substituted speculation for record fact. What the record discloses is that the defense attorney suspected that Ms. Mozee may have lied on the stand. That was obvious from the cross examination. But nothing in the record supports the slightest inference that the defense attorney was aware of Ms. Mozee’s prior inconsistent statement to the prosecuting attorney, who was then and there opposing his effort to have her recalled for further cross examination.
The most indefensible part of the majority opinion, however, is saved for the discussion of McCrane , which is described as having “superficial similarities.” The majority reasons:
However, in McCrane , the defendant was unaware until four days after conclusion of the trial that certain letters indicating that the witness had received preferential treatment from the Government even existed. Here, not only was counsel for defendant fully aware of the alleged Brady material, he had the opportunity to cross-examine the witness on the very matter involved. Any fault, then, would appear to lie with the witness alone, and not with the Government.
In the second quoted sentence the majority repeats its misstatement of the record as to the extent of defense counsel’s knowledge, and then relies on the opportunity for cross examination. There was such an opportunity, and the witness frustrated it by lying. If defense counsel knew of the witness’s prior inconsistent statement to the prosecutor, cross examination would have confronted her with it. By letting the lie stand and opposing recall of Ms. Mozee, the prosecutor prevented effective cross examination. Nevertheless, the majority concludes that “[a]ny fault . . . would appear to lie with the witness alone, and not with the Government.” The majority decision’s signal to prosecuting attorneys is clear. They are now free to permit government witnesses to testify inconsistently with prior statements made to the government, and to judge for themselves whether the testimony on the stand is truthful. That judgment will usually if not invariably be made on the basis of whether the version testified to is deemed more favorable to the government case than the version in the prior inconsistent statement. Apparently the Mooney v. Holohan rule is dead in the Third Circuit. It should have received a more decent requiem.
The issue in this case is not whether the § 2255 petition should have been granted or denied, but only whether it should have been summarily denied. Petitioner’s allegations were not “so ‘vague [or] conclusory’ . as to warrant dismissal for that reason alone.” Blackledge v. Allison, - U.S. -, -, 97 S.Ct. 1621, 1630 , 52 L.Ed.2d 136 (1977); Machibroda v. United States, 368 U.S. 487, 495 , 82 S.Ct. 510 , 7 L.Ed.2d 473 (1962). Neither were these allegations, when viewed in the context of the two affidavits before the court, “ ‘so palpably incredible,’ ... so ‘patently frivolous or false’ . . . as to warrant summary dismissal.” Blackledge v. Allison, supra; Machibroda, supra; Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116,119 , 76 S.Ct. 223 , 100 L.Ed. 126 (1956).
I would reverse and order a § 2255 hearing.
[footnote omitted]
Pyle v. Kansas, 317 U.S. 213 [, 63 S.Ct. 177 , 87 L.Ed. 214 ]; Alcorta v. Texas, 355 U.S. 28 [, 78 S.Ct. 103 , 2 L.Ed.2d 9 ]; Napue v. Illinois, 360 U.S. 264 [, 79 S.Ct. 1173 , 3 L.Ed.2d 1217 ]; Miller v. Pate, 386 U.S. 1 [, 87 S.Ct. 785 , 17 L.Ed.2d 690 ]; Giglio v. United States, 405 U.S. 150 [, 92 S.Ct. 763 , 31 L.Ed.2d 104 ]; Donnelly v. DeChristoforo, 416 U.S. 637 [, 94 S.Ct. 1868 , 40 L.Ed.2d 431 ],

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9463870. Public record. Not legal advice.