holding that underlying purpose of Napue and Giglio is not to punish prosecutor for the misdeeds of a witness, but rather to ensure that jury is not misled by any falsehoods
How later courts described this case
- holding that underlying purpose of Napue and Giglio is not to punish prosecutor for the misdeeds of a witness, but rather to ensure that jury is not misled by any falsehoods
- upholding conviction for aiding and abetting drug smuggling and rejecting appellants’ claim that "the absence of a guilty principal precludes their conviction on aiding and abetting charges”
- underlying purpose of Na-pue and Giglio is not to punish prosecutor for misdeeds of a witness, but to ensure jury is not misled by falsehoods
- Intent of Giglio “is not to punish the prosecutor; rather the primary concern is that the jury not be misled by the prosecution’s knowing use of perjured testimony.”
Written by the judges who cited it.
The opinion
MURNAGHAN, Circuit Judge,
dissenting:
With the conclusion that the evidence sufficed to sustain the convictions on charges of importing marijuana as aiders and abettors, I am in full accord. Regrettably, however, in my judgment, the conduct of the government did not satisfy the high standards which must be maintained if due process is to be assured and as a consequence, appellants were denied the fair trial to which they were entitled.
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. Holo-han, 294 U.S. 103 , 55 S.Ct. 340 , 79 L.Ed. 791 (1935), together mandate a two-step inquiry in the determination whether the prosecutor’s acquiescence in the giving of false testimony by a government witness requires a new trial. See Campbell v. Reed, 594 F.2d 4, 8 (4th Cir. 1979); United States v. Ramos Algarin, 584 F.2d 562, 564 (1st Cir. 1978). The first inquiry looks to whether the challenged evidence is indeed sufficiently misleading under the circumstances to justify its characterization as false. Cf. Boone v. Paderick, 541 F.2d 447, 450 (4th Cir. 1976); United States v. Barham, 595 F.2d 231, 241 (5th Cir. 1979). The second inquiry, and most often that which is dis-positive, is whether “ ‘the false testimony could ... in any reasonable likelihood have affected the judgment of the jury . . . Giglio, supra, 405 U.S. at 154 , 92 S.Ct. at 766 , quoting Napue, supra, 360 U.S. at 271 , 79 S.Ct. at 1178 . Each should be answered in this case in a manner favorable to the appellants.
I.
I do not share the majority’s skepticism regarding the misleading character of Pur-vis’ testimony before the jury. In addition to the testimony received by the jury which is set forth at fn. 4 of the majority opinion, Purvis also testified as follows on cross-examination:
BY MR. COGAN:
Q. I take it that the reason that you are testifying — since nobody has promised you that they are going to do any *1048 thing for you, nor has anyone indicated that they are going to do anything for you — that your testimony is the result of your sense of civic responsibility to the community; isn’t that right?
A. I don’t know if you would phrase it as a sense of civic responsibility. My reason for testifying is the fact that I was out of this country for a period of time, and when I came back from being out of the country, it made me realize exactly what the flag behind the Judge means. And that is the reason that I am testifying because I think I am paying back some past debts that I owe, that as a citizen—
Q. (Interposing) You feel that you owe a debt to the community? You owe the debt to the flag and to the community to testify; isn’t that right?
A. That is correct.
Q. You feel you did an evil thing by being involved in importing marijuana; isn’t that right?
A. That is correct.
Q. And your testimony before this jury is not because you feel that it may help you get more a [sic] lenient sentence, and you are not pointing the finger of guilt at anyone merely because you feel you are going to be helped — but because you feel you owe the community; isn’t that right?
A. That is—
Q. (Interposing) Is that right? Yes or no?.
A. Yes.
Q. Okay, now, incidentally, there was no other factor involved in your decision to plead guilty and testify other than that; isn’t that right? Your sense of obligation to the flag; is that right?
A. That is exactly right, and to pay back some debts that I owe. 1
No doubt the promise of the prosecutor in Florida was limited to Purvis’ cooperation in Florida. Nevertheless, the government has a clear duty to protect criminal defendants’ due process right to a fair trial and a hypertechnical “accuracy” in the testimony of Purvis will not excuse it if its essential nature is false, devious and misleading. “The issue, of course, was whether [Purvis] figured to gain any personal benefits by [cooperating with] the Government.” United States v. Barham, supra, 595 F.2d at 241 . The “terms of the deal”, Maj. op., supra, at 1044-1045, in Purvis’ contemplation may or may not have encompassed testimony in North Carolina in addition to “cooperation” in Florida. 2 The majority decides that question in favor of the government and in conformity with the findings of the district court. However, the fact of the matter is, Purvis had not been sentenced at the time of his testimony in this case. 3 It strains credulity to suggest that Purvis, who did not testify at the post-trial hearing, at the time he testified could have honestly believed that he had fully executed his half of the deal when apparently he was no longer useful to government agents in Florida. In Boone v. Pederick, supra, 541 F.2d at 449 , there had been a “promise of favorable treatment in return for cooperation with the prosecution.” There, we noted that “a promise to recommend leniency (without assurance of it) may be interpreted by the promisee as contingent upon the quality of the evidence produced — the more uncertain the agreement, the greater the incentive to make the testimony pleasing to the promis- or.” Id. at 451 . Accord, Campbell v. Reed, supra, 594 F.2d at 7 . I am unwilling to indulge the presumption that Purvis held an honest belief that his noncooperation in *1049 the North Carolina prosecutions, in the form of a refusal to testify or in the form of unhelpful testimony would have had no effect on the performance (and effectiveness) of the government’s still outstanding promise to bring his cooperation to the attention of the sentencing judge in North Carolina.
In any event, I accept as correct the finding that, in the contemplation of the agent making it, the promise of a favorable representation to the judge was made in return strictly for cooperation in Florida and not for cooperation in testifying for the prosecution in North Carolina. Nevertheless, it is unrealistic to think that either the witness himself or the jury necessarily would have compartmentalized matters in that way. .Rather, it is much more likely that both would have perceived a distinct possibility that, if testimony of the witness in the North Carolina .case constituted an unpleasant surprise for the prosecutor, the likelihood of the favorable recommendation at sentencing time would have materially diminished. In short, the testimony relating to Purvis’ motivation for testifying was sufficiently misleading under the circumstances that it was false under Giglio .
Nor is there in this case a serious question that the North Carolina prosecutor knew or should have known of the Florida deal. I find unacceptable the excuses for the conduct of the United States Attorney for the Eastern District of North Carolina, who had been informed by the federal authorities in Florida of the promise made to the witness of a favorable recommendation but who, nevertheless, steadfastly denied during the trial of the present case that any such promise had been made.
The fact that the North Carolina prosecutor was found by the district judge merely to have forgotten and not to have intentionally suppressed the information relates solely to the question of whether his activity was negligent or malicious. What we are concerned with are the consequences on the defendants, and they are exactly the same regardless of the North Carolina prosecutor’s state of mind when he withheld the information. The Supreme Court stated in Giglio, supra, 405 U.S. at 154 , 92 S.Ct. at 766 , “whether the nondisclosure was a result of negligence or design, it is the responsibility of the prosecutor.” 4 Moreover, as the government conceded below, the fact that the .promise was made by federal officials in Florida rather than by federal officials in North Carolina is not dispositive. Cf. Boone v. Paderick, supra, 541 F.2d at 450-51 (state police detective’s promise imputed to state prosecutor); United States v. Antone, 603 F.2d 566, 570 (5th Cir. 1979) (knowledge of state investigators imputed to federal prosecutor). In United States v. Barham, supra, the federal prosecutor in Alabama who was prosecuting the case had been informed by an Assistant United States Attorney for the Middle District of Tennessee, who had been engaged in an overlapping investigation, that the witness had been promised that she would not be prosecuted in Tennessee if she gave truthful testimony. 5
*1050 In my view, it is no sufficient answer that defense counsel were assiduous enough to turn up, by inquiry to a Department of Justice official in Florida, contradictory indications on the question of whether a promise had been made. Presented with a direct conflict between statements of the Florida-based official and the North Carolina prosecutor, defense counsel had quite enough to attend to in the way of addressing the evidence to be introduced on the issues themselves rather than having to divert their attention to proving that the government official responsible for the prosecution, the one with whom they had most directly to deal in the case, was in error. His representation was the one on which they were entitled to rely, and the detriment to their clients from their doing so was the consequence.
It is true that several cases have limited the prosecutor’s duty under Napue and Giglio to situations where defense counsel had absolutely no inkling before or during the trial of the truth of the existence of a deal between the prosecutor and the government’s key witness. See, e. g., United States v. Harris, 498 F.2d 1164, 1170 (3d Cir. 1974). The question has been characterized as “troubling”. See United States v. Bynum, 567 F.2d 1167 , 1169 and fn. 1 (1st Cir. 1978) (per curiam). United States v. Barham, supra, 595 F.2d at 243 fn. 17, establishes that the prosecutor does not automatically discharge his duty under Giglio simply by sharing his knowledge of a deal with defense counsel. In Barham , a pre-trial discovery document delivered to defense counsel contained the exact terms of the deals struck between the Assistant United States Attorney in Tennessee and three prosecution witnesses all of whom gave misleadingly false accounts of the respective agreements in response to questions on direct as well as cross-examination in the trial of a related prosecution in Alabama. Nonetheless, since the Alabama prosecutor’s questions unwittingly “reinforced the deception and thereby contributed to the deprivation of due process”, the court was not persuaded that defense counsel’s failure to review and remember the contents of the document vitiated the duty of the prosecutor to avoid submission to the jury of tainted testimony. Cf. United States v. Sanfi-lippo, 564 F.2d 176, 178 (5th Cir. 1977) (conviction reversed and remanded for new trial on the basis of a Giglio violation despite the fact that “weeks before trial, the prosecutor satisfied his obligation under Giglio to fully disclose the terms of the plea bargain,” where the prosecutor both permitted the false testimony and utilized such false testimony in closing argument).
In effect, whatever knowledge defense counsel had garnered from other sources, the primacy of the prosecutor actually en *1051 gaged in the case as a source was so great that his flat and reiterated denial left the defendants and their counsel “without an inkling” of the deal between Purvis and the federal authorities in Florida.
II.
Accordingly, Giglio and Napue principles apply to this case. The dispositive issue is whether the false testimony “could . in any reasonable likelihood have affected the judgment of the jury.” This standard of review has been described as a “low threshold”. Barham, supra, 595 F.2d at 242 . The standard is:
[A] brother, if not a twin, of the standard (“harmless beyond a reasonable doubt”) for determining whether constitutional error can be held harmless. See Chapman v. California, 1967, 386 U.S. 18, 23-24 , 87 S.Ct. 824 , 17 L.Ed.2d 705 . A strict standard is appropriate because, as the Supreme Court has explained, false testimony cases involve not only “prose-cutorial misconduct”, but also “a corruption of the truth-seeking function of the trial process”, United States v. Agurs, supra, 427 U.S. at 104, 96 S.Ct. at 2397.
Id. The inquiry into “reasonable likelihood” is “not an easy one”. Boone v. Pad-erick, supra, 541 F.2d at 453 . However, it is certain that appellants need not show on appeal that disclosure “would have created a reasonable doubt that did not otherwise exist. . . . ” See United States v. Sutton, 542 F.2d 1239 , 1242 and fn. 3 (4th Cir. 1976). In Campbell v. Reed, 594 F.2d 4, 8 (4th Cir. 1979), the defendant had confessed to committing the crime charged although he denied at trial that the confession was voluntarily given. Despite the confession and independent testimony apparently corroborative of the noncoercive circumstances surrounding its procurement, absent the prosecutor’s disclosure of a plea agreement favorable to the key witness for the state, the court declined to hold that the jury’s judgment surely would have been unaffected.
Here, Purvis’ testimony was immeasurably crucial to the government’s case against appellants. It must be recalled that appellants were charged solely as aiders and abettors; the case was tried as a conspiracy prosecution although the conspiracy count in the indictment was dismissed prior to trial. It was the government’s theory that appellants were the “money men” behind a large-scale conspiracy to import marijuana into North Carolina. Purvis’ testimony initially and directly tied each of the appellants to the conspiracy as its moving force. Under the government’s theory of the case, Purvis was the North Carolina lieutenant who alone among the witnesses at trial maintained direct and continuing contact with appellants. Essentially, the government’s case rested upon its showing that certain trips to North Carolina by each of the appellants, together with Purvis’ incul-patory narrative, constituted evidence of appellants’ respective involvement in the conspiracy. Appellants did not dispute the fact of those trips to North Carolina but, rather, asserted, through the live testimony of others and in argument, that the trips were made in pursuit of legitimate business interests.
■ Lee Smith’s testimony corroborating some of the testimony of Purvis related to a period of time later in the course of the conspiracy. It is doubtful that Smith’s testimony could, in the manner in which the government put on its case, stand on its own. Nor is the assertion lightly to be disregarded that the relationship between Purvis and Smith, who were good friends, the latter having been recruited for service in the venture by the former, might well have led to the jury’s discounting of Smith’s testimony. In a similar vein, the documentary evidence adduced at trial, consisting primarily of telephone toll records, hotel folios and airline flight records, all rely for their probativeness upon jury acceptance of the testimony of Purvis and of Smith.
In summary, the prosecution put on a compelling case against appellants; however, particularly in view of other issues in the case, it was the credibility of Purvis upon which the strength of the entire case *1052 depended. 6 Despite defense counsel’s attack on the credibility of the key witness, in the face of Purvis’ denial and of the continued denial by the prosecutor of the existence of any promise to Purvis the jury necessarily perceived that in large measure the attack was speculative at best. See Boone v. Paderick, supra, 541 F.2d at 451 . It should be recalled, as well, that the prosecutor’s failure to correct the false impression given by Purvis’ denial of any promises “shielded from jury consideration yet another, more persuasive reason to doubt [his] testimony — the very fact that [he] had attempted to give the jury a false impression concerning [a promise] from the Government.” United States v. Barham, supra, 595 F.2d at 243 .
Reversal here would comply with the spirit of Giglio :
There is no doubt that the evidence in this case was sufficient to support a verdict of guilty. But the fact that we would sustain a conviction untainted by the false evidence is not the question. After all, we are not the body which, under the Constitution, is given the responsibility of deciding guilt or innocence. The jury is that body, and, again under the Constitution, the defendants] [are] entitled to a jury that is not laboring under a Government-sanctioned false impression of material evidence when it decides the question of guilt or innocence with all its ramifications.
United States v. Barham, 595 F.2d at 242 .
Accordingly, I dissent.
. On direct examination Purvis testified in part as follows:
Q. Is your testimony here in this courtroom today based upon any type of plea agreement or bargain with the United States or any government (sic)?
A, No, sir.
Q. Have you been made any promises by any agent of the United States?
A. No, sir.
. Purvis did testify before a Florida grand jury.
. Purvis was sentenced subsequent to the trial in the instant case. The record does not reveal the sentence imposed. It appears that agents for the government made known to the sentencing judge the extent of Purvis’ cooperation.
. In Giglio , one Assistant United States Attorney made the promise of leniency; another who did not know it had been made, appeared at trial for the government. The failure to remember in the present case is certainly no more commendable or innocent than the failure to know what was on another prosecutor’s mind in Giglio. ■
. The circumstances in United States v. Barham, 595 F.2d 231 (5th Cir. 1979), where information concerning the cooperation of co-conspirators was freely exchanged between Assistant United States Attorneys in different districts, were less troubling to an observer concerned with how the government conducts its business than the lack of candor evident in the instant case. The prosecutor in the instant case testified as follows at the post-trial hearing:
Q. Now, in response earlier on direct examination to the question of Mr. Parsons, you said that you were told by [the federal agent in Florida] that Purvis was cooperating with him and I will not belabor this, but you said that you did not understand that and you were somewhat surprised to find out that he was cooperating with them and you had an Indictment in North Carolina.
Mr. Abramson asked you some other questions about that. Do you recall also saying on direct examination that when you had your conversation with [a federal official in *1050 Florida] you really wanted to know why Pur-vis was cooperating.
Do you remember saying that on direct examination?
A. I think I said that and I will say it now.
Q. All right. I take it then you specifically asked [that official] the question, “Why is it that this man is cooperating with you?”
A. I do not know if I asked him that question or not.
Q. Well, you indicated that you wanted to know. Is there anything which stood in the way of your finding out?
A. Well, there was something that stood in my way of me asking him directly.
Q. What?
A. Well, you have got to understand that it is one Federal Government, but the investigation in North Carolina was not exactly— well, a better way to put it was that there may be conflicts between the investigation in North Carolina and the one in Florida.
Just because somebody — the Federal Government in Florida is investigating one person, it does not mean that there is also complete cooperation because there is a certain sense of competition. You do not always tell what is going on in one District to another District.
That is a fact of life. For that reason, I would not come out and say, “Chuck, what is happening down there,” or something of that nature. I would find out in a more indirect fashion.
Q. Are you saying that it is a fact of prosecutorial life in this country in the Justice Department, that there is competition between arms of the Federal Government in terms of criminal investigations and prosecutions?
Is that the gist of what you are saying?
A. I will just have to stand on my other statement.
. During a bench conference related to jury instructions, the district court pointed out:
As I view the evidence, Platshorn, whatever his contribution by way of money and so forth were, if you believe this Purvis, they continued. You could trace his involvement in what actually finally happened right back to the first thing that he ever did. . . .
Those comments were made in response to a contention by counsel for Platshorn that Plats-hom’s alleged involvement in the conspiracy terminated with the aborted importation planned for Labor Day weekend. As the district court correctly observed, it was Purvis’ testimony which demonstrated rather conclusively that the scheme to import marijuana into North Carolina was a single continuing scheme.