Opposition Brief — Mitchell J. Stein, Petitioner v. United States
Supreme Court briefNov 13, 2020
Ask Donna
What actually matters in this document.
Text
No. 20-326
In the Supreme Court of the United States
MITCHELL J. STEIN, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
JEFFREY B. WALL
Acting Solicitor General
Counsel of Record
BRIAN C. RABBITT
Acting Assistant Attorney
General
SANGITA K. RAO
Attorney
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTION PRESENTED
Whether the court of appeals correctly determined
that petitioner’s claim that the government presented
false testimony did not entitle him to a new trial, where
the court found that petitioner failed to identify any materially false testimony and that the defense had the
means and opportunity to challenge the alleged misstatements at the time they occurred.
(I)
TABLE OF CONTENTS
Page
Opinions below .............................................................................. 1
Jurisdiction .................................................................................... 1
Statement ...................................................................................... 1
Argument..................................................................................... 16
Conclusion ................................................................................... 30
TABLE OF AUTHORITIES
Cases:
Brady v. Maryland, 373 U.S. 83 (1963) .................. 11, 25, 26
Briscoe v. LaHue, 460 U.S. 325 (1983) ................................ 27
Chapman v. California, 386 U.S. 18 (1967) ........................ 21
Davis v. United States, 411 U.S. 233 (1973) ....................... 25
DeMarco v. United States,
928 F.2d 1074 (11th Cir. 1991) ..................................... 14, 24
Evans v. United States, 408 F.2d 369 (7th Cir. 1969) .... 24, 25
Faretta v. California, 422 U.S. 806 (1975) ............................ 7
Ford v. Hall, 546 F.3d 1326 (11th Cir. 2008),
cert. denied, 559 U.S. 906 (2010) ....................................... 13
Giglio v. United States, 405 U.S. 150 (1972) ........... 11, 17, 27
Gomez v. Commissioner of Corr.,
No. SC 20089, 2020 WL 3525521
(Conn. June 29, 2020) ......................................................... 29
Hawthorne v. United States, 504 A.2d 580 (D.C.),
cert. denied, 479 U.S. 992 (1986) ....................................... 29
Jenkins v. Artuz, 294 F.3d 284 (2d Cir. 2002) .................... 29
Mooney v. Holohan, 294 U.S. 103 (1935) ...................... 25, 26
Napue v. Illinois, 360 U.S. 264 (1959) ..................... 17, 25, 26
People v. Lueck, 182 N.E.2d 733 (Ill. 1962)......................... 28
People v. Smith, 870 N.W.2d 299 (Mich. 2015) ............. 28, 29
(III)
IV
Cases—Continued:
Page
Puckett v. United States, 556 U.S. 129 (2009) .............. 25, 26
Ross v. Heyne, 638 F.2d 979 (7th Cir. 1980) ....................... 24
Routly v. Singletary, 33 F.3d 1279 (11th Cir. 1994),
cert. denied, 515 U.S. 1166 (1995) ..................................... 23
Smith v. Phillips, 455 U.S. 209 (1982) ................................. 26
Soto v. Ryan, 760 F.3d 947 (9th Cir. 2014),
cert. denied, 576 U.S. 1025 (2015) ..................................... 30
State v. Brunette, 501 A.2d 419 (Me. 1985) ................... 28, 29
State v. Yates, 629 A.2d 807 (N.H. 1993) ....................... 28, 29
United States v. Alzate, 47 F.3d 1103 (11th Cir. 1995) ...... 28
United States v. Bagley, 473 U.S. 667 (1985).......... 17, 21, 27
United States v. Crockett,
435 F.3d 1305 (10th Cir. 2006) ........................................... 24
United States v. Decker,
543 F.2d 1102 (5th Cir. 1976),
cert. denied, 431 U.S. 906 (1977) ....................................... 24
United States v. Foster, 874 F.2d 491 (8th Cir. 1988) ........ 28
United States v. Freeman,
650 F.3d 673 (7th Cir. 2011) ............................................... 29
United States v. Harris, 498 F.2d 1164 (3d Cir.),
cert. denied, 419 U.S. 1069 (1974) ............................... 23, 24
United States v. Helmsley,
985 F.2d 1202 (2d Cir. 1993) .............................................. 23
United States v. Iverson,
648 F.2d 737 (D.C. Cir. 1981) ............................................. 24
United States v. LaPage, 231 F.3d 488 (9th Cir. 2000)...... 23
United States v. Lochmondy,
890 F.2d 817 (6th Cir. 1989) ............................................... 24
United States v. Mangual-Garcia,
505 F.3d 1 (1st Cir. 2007),
cert. denied, 553 U.S. 1019 (2008) ............................... 23, 24
V
Cases—Continued:
Page
United States v. McNair,
605 F.3d 1152 (11th Cir. 2010),
cert. denied, 562 U.S. 1270 (2011) ..................................... 13
United States v. Meinster,
619 F.2d 1041 (4th Cir. 1980) ............................................. 24
United States v. Sanfilippo,
564 F.2d 176 (5th Cir. 1977) ............................................... 24
Villanueva-Rivera v. United States,
553 U.S. 1019 (2008)............................................................ 17
Constitution, statutes, and rules:
U.S. Const. Amend. V (Due Process Clause) ..................... 14
18 U.S.C. 2 ........................................................................ 1, 2, 7
18 U.S.C. 371 ........................................................................ 2, 7
18 U.S.C. 1341 ...................................................................... 1, 7
18 U.S.C. 1343 ...................................................................... 1, 7
18 U.S.C. 1348 (2006)........................................................... 2, 7
18 U.S.C. 1349 ...................................................................... 1, 7
18 U.S.C. 1957 (2006)........................................................... 2, 7
Fed. R. Crim. P:
Rule 12 .............................................................................. 25
Rule 33(b)(1) .................................................................... 15
Rule 51(b) ......................................................................... 26
In the Supreme Court of the United States
No. 20-326
MITCHELL J. STEIN, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-21a)
is reported at 964 F.3d 1313. An earlier opinion of the
court of appeals (Pet. App. 24a-67a) is reported at
846 F.3d 1135.
JURISDICTION
The judgment of the court of appeals was entered on
July 13, 2020. The petition for a writ of certiorari was
filed on September 8, 2020. The jurisdiction of this
Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
Following a jury trial in the United States District
Court for the Southern District of Florida, petitioner
was convicted on one count of conspiring to commit mail
and wire fraud, in violation of 18 U.S.C. 1349; three
counts of mail fraud, in violation of 18 U.S.C. 1341 and
2; three counts of wire fraud, in violation of 18 U.S.C.
(1)
2
1343 and 2; three counts of securities fraud, in violation
of 18 U.S.C. 1348 (2006) and 18 U.S.C. 2; three counts of
money laundering, in violation of 18 U.S.C. 1957 (2006)
and 18 U.S.C. 2; and one count of conspiring to obstruct
justice, in violation of 18 U.S.C. 371. 4/8/15 Am. Judgment 1. The district court denied petitioner’s motions
for a new trial, Pet. App. 68a-69a, and it sentenced petitioner to 204 months of imprisonment, to be followed by
two years of supervised release, 4/8/15 Am. Judgment
2-3. It also imposed restitution and forfeiture. Id. at
5-6. The court of appeals affirmed petitioner’s convictions but vacated his sentence and remanded for resentencing. Pet. App. 24a-67a. This Court denied certiorari. 138 S. Ct. 556 (2017) (No. 17-250).
While petitioner’s appeal was pending, he filed another motion for a new trial in the district court. On
remand, the court denied petitioner’s new-trial motion,
Pet. App. 22a-23a, and the court sentenced petitioner to
150 months of imprisonment, to be followed by three
years of supervised release; imposed a reduced restitution order; and reimposed the same forfeiture order.
8/29/18 Am. Judgment 2-3, 5-6. The court of appeals affirmed. Pet. App. 1a-21a.
1. Petitioner served as legal counsel for Signalife
Inc., a publicly traded company that manufactured electronic heart monitors. 18-13762 Gov’t C.A. Br. 5. Petitioner engaged in a scheme to inflate the price of Signalife stock artificially by creating the false impression
of sales activity for the company. Pet. App. 27a. Petitioner’s wife at the time was the largest single Signalife
shareholder, and petitioner therefore stood to gain directly from the stock’s inflated price. Id. at 27a n.3. Petitioner also caused the company to make fraudulent
cash payments to himself and others on the basis of
3
sham consulting agreements and to issue stock to third
parties so that those parties could sell their stock and
funnel the proceeds back to petitioner. 18-13762 Gov’t
C.A. Br. 5. In addition, petitioner conspired to obstruct
an investigation by the Securities and Exchange Commission (SEC) into Signalife, by testifying falsely and
arranging for another individual to testify falsely in order to conceal the fraudulent scheme. Id. at 14;
14-15621 Gov’t C.A. Br. 23-25.
a. Over the course of three weeks in September and
October 2007, petitioner sent three press releases to
John Woodbury, Signalife’s securities lawyer, with instructions to publish them. Pet. App. 27a-29a. Taken
together, the press releases stated that Signalife had
sold approximately $5 million worth of products. Ibid.
Woodbury lacked any independent knowledge of the
truth of the statements in the press releases; he nevertheless published them because petitioner had told
Woodbury that petitioner and Signalife’s Chief Executive Officer, Lowell T. Harmison, had been traveling together visiting potential clients, and Woodbury believed
that the purported sales were the fruits of those efforts.
Id. at 27a-28a. According to Woodbury, the $5 million
in sales reported in the press releases was a “huge deal”
for Signalife because it would now be viewed as a “big
revenue generating company.” 18-13762 Gov’t C.A. Br.
11 (brackets and citation omitted).
Woodbury later asked petitioner for additional information regarding the sales described in the press releases. Pet. App. 28a. In response, petitioner sent
Woodbury three purchase orders, which petitioner
claimed that Harmison was “now fulfilling.” 18-13762
Gov’t C.A. Br. 11 (citation omitted). The first purchase
order, dated September 14, 2007, purported to reflect
4
an order by a company called Cardiac Hospital Management (CHM) for $1.93 million worth of product and
noted a $50,000 deposit. Pet. App. 28a. The signature
block showed “ ‘Cardiac Hospital Management’ ” and
contained “an illegible signature” without a corresponding printed name. Id. at 28a-29a. The second and third
purchase orders, dated September 24, 2007, and October 4, 2007, purported to reflect sales to a company
called IT Healthcare. Id. at 29a. One purported to reflect a sale of products at a cost of $3.3 million and noted
a $30,000 deposit, and the other purported to reflect a
sale with a “net due” amount of $551,500. Ibid. None of
the purchase orders included a shipping address.
18-13762 Gov’t C.A. Br. 11.
Petitioner enlisted the help of his personal assistant,
Martin Carter, and a Signalife contractor, Ajay Anand,
to maintain the appearance that the fake purchase orders were genuine. Pet. App. 26a-27a, 29a. For example, petitioner gave Carter a template to create fictitious letters requesting shipment-address changes—
one for IT Healthcare, and another for CHM. Id. at 29a.
Carter then drafted a letter, ostensibly from a person
named Yossie Keret of IT Healthcare, requesting that
products be delivered to an address in Israel that
Carter had made up. Ibid. Carter also prepared a letter appearing to come from CHM that asked for products to be delivered to an address in Tokyo, Japan. Ibid.
This letter purportedly was signed by “Toni Nonoy.”
Id. at 29a-30a. Carter in fact had “never spoke[n] with
Yossie Keret, Toni Nonoy, or anyone at IT Healthcare
or CHM; indeed, he had no idea whether the companies
or the individuals actually existed.” Id. at 30a. Carter
believed, however, that petitioner had fabricated these
names. Ibid.
5
On another occasion, at petitioner’s request, Carter
provided petitioner with two numbers that he could use
as fax numbers for purchase-confirmation letters that
would purportedly come from Keret and Nonoy. Pet.
App. 30a. Subsequently, Carter, acting at petitioner’s
direction, fabricated a letter from Keret purporting to
cancel IT Healthcare’s orders and sent it to Woodbury.
Ibid. Petitioner also sent Carter to Japan with a sealed
envelope in a plastic bag, instructing him to mail the envelope back to the United States while wearing gloves
and then return home the same day. Ibid. At petitioner’s request, Carter also asked his friend Timothy
Cutter, a landscaper in Ohio, to accept delivery of some
boxes from Signalife, to create the impression that Signalife was actually moving products. 14-15621 Gov’t
C.A. Br. 21. Cutter accepted a shipment of 20-25 boxes
of heart monitors and stored them in his basement for
several months until Carter retrieved them and shipped
them back to Signalife. Ibid.
Anand provided similar assistance to petitioner. Pet.
App. 30a. Petitioner once asked Anand to travel to Texas
to mail two IT Healthcare purchase orders to Signalife.
Ibid. When Anand asked whether the purchase orders
were real, petitioner responded that it did not matter.
Ibid. Anand declined to help, but he subsequently
agreed to a request from petitioner to draft two letters
that would appear to come from Keret on behalf of IT
Healthcare. Ibid. The first letter requested a shipping
address change to an Israeli address, and the second canceled IT Healthcare’s order. Id. at 30a-31a. Anand sent
the letters to petitioner and Harmison. Id. at 31a.
b. Acting with the assistance of Carter and Anand,
petitioner also misappropriated money and stock from
6
Signalife. Pet. App. 31a. In January 2008, at petitioner’s direction, Carter executed an agreement with
Signalife to provide consulting services, none of which
he actually provided or was capable of providing. Ibid.;
18-13762 Gov’t C.A. Br. 6 (citing evidence that Carter
first met petitioner in 2005 while working as a handyman). Pursuant to that agreement, petitioner funneled
money and Signalife stock from Signalife through
Carter to himself. Pet. App. 31a.
Petitioner also directed Carter to buy and sell Signalife stock and to transfer most of the proceeds to petitioner. Pet. App. 31a. Likewise, at petitioner’s direction, Anand established “The Silve Group,” ostensibly
to sell Signalife products in India, which in fact sold only
one unit (in Mexico). Ibid. Petitioner nonetheless arranged for Signalife to pay Anand more than one million
shares for his work, ibid., and Anand kicked back payments to petitioner through wires, checks, and cash,
18-13762 Gov’t C.A. Br. 8-9.
c. Woodbury, who oversaw the drafting of Signalife’s filings with the SEC, Pet. App. 29a, described the
three fake sales to CHM and IT Healthcare in a number
of SEC filings using language that petitioner had approved and vetted, 18-13762 Gov’t C.A. Br. 12. Petitioner reviewed and commented on drafts of the company’s SEC filings and was intimately involved in the
drafting process. Ibid.
In 2009, the SEC initiated an investigation into Signalife. Pet. App. 32a. As part of that investigation, petitioner testified before the SEC on four separate dates
in 2009 and 2010. 14-15621 Gov’t C.A. Br. 23. During
his testimony, petitioner falsely stated (among other
things) that he was not familiar with CHM and IT
Healthcare; that he never had direct communications
7
with The Silve Group and did not know who owned it;
that he was unfamiliar with the names Toni Nonoy and
Yossie Keret; that he had “never really been involved in
public filings” with the SEC; and that it was “undisputed” that he did not receive money from Signalife. Id.
at 23-24 (citations omitted).
In 2010, after Carter was contacted by the SEC, he
met with petitioner at a restaurant. 14-15621 Gov’t C.A.
Br. 24. At petitioner’s direction, Carter took detailed
notes on a placemat about what petitioner wanted
Carter to tell the SEC. Ibid. Many of the details written on the placemat, which Carter repeated during his
SEC testimony, were false. Ibid.
2. A federal grand jury in the Southern District of
Florida returned an indictment charging petitioner
with one count of conspiring to commit mail and wire
fraud, in violation of 18 U.S.C. 1349; three counts of mail
fraud, in violation of 18 U.S.C. 1341 and 2; three counts
of wire fraud, in violation of 18 U.S.C. 1343 and 2; three
counts of securities fraud, in violation of 18 U.S.C. 1348
(2006) and 18 U.S.C. 2; three counts of money laundering, in violation of 18 U.S.C. 1957 (2006) and 18 U.S.C.
2; and one count of conspiring to obstruct justice, in violation of 18 U.S.C. 371. Indictment 1-17.
a. Following a hearing pursuant to Faretta v. California, 422 U.S. 806 (1975), the district court granted
petitioner’s motion to represent himself at his trial. Pet.
App. 33a. The trial lasted two weeks. Ibid.
Among the government witnesses were Carter and
Anand. 1 They described in detail the efforts they undertook at petitioner’s behest to make the CHM and IT
Carter pleaded guilty to conspiracy to commit mail fraud, wire
fraud, and obstruction of justice. 14-15621 Gov’t C.A. Br. 24 n.14.
Anand pleaded guilty to obstructing an SEC proceeding. Ibid.
1
8
Healthcare purchase orders appear to be legitimate and
to misappropriate company assets and funnel the proceeds back to petitioner. See 14-15621 Gov’t C.A. Br.
10-23.
Woodbury also testified and described, inter alia, his
preparation of the press releases touting the sham
CHM and IT Healthcare sales and his work with petitioner in preparing what turned out to be false and misleading SEC filings for Signalife. 14-15621 Gov’t C.A.
Br. 6-9. Woodbury testified that, when he was preparing Signalife’s interim SEC report for the nine months
ending September 30, 2007, “[he] got all [his] information [about the CHM and IT Healthcare purchase orders] from [petitioner].” 5/7/13 Trial Tr. 96; see
14-15621 Gov’t C.A. Br. 52.
Tracy Jones, the executive assistant to Harmison
(Signalife’s CEO), testified about (among other things)
petitioner’s control of Signalife and his demands to be
paid, without submitting invoices, for legal services he
purported to have provided. 14-15621 Gov’t C.A. Br.
5-6. Jones also described issuing company stock and
making large wire transfers of cash to Carter and
Anand at petitioner’s direction. Id. at 13, 15, 17-18. Finally, Jones testified that she considered the CHM and
IT Healthcare orders to be “phantom purchase orders
because she never received any backup or anything on
them.” Id. at 51 (brackets and citation omitted).
b. Near the end of the trial, petitioner attempted to
introduce into evidence a copy of an October 24, 2007,
email from Jones to a Signalife board member, Norma
Provencio, that Provencio had forwarded to Woodbury.
Pet. App. 44a; 18-13762 Gov’t C.A. Br. 15. The subject
line of Provencio’s email to Woodbury stated, “[Fwd:
Emailing: Tribou Payment]”; and the body contained
9
Provencio’s note that read, “Attached is the $50K deposit
on the 9-14 purchase order.” Pet. App. 44a (citation omitted; brackets in original). The exhibit also included a
photocopy of the referenced September 27, 2007, check
for $50,000 to Signalife and a deposit slip. Ibid.; D. Ct.
Doc. 292-3, at 2 (Dec. 9, 2013). The check appeared to
have been signed by Delores Tribou and drawn from an
account shared with her husband, Thomas Tribou, ibid.,
who had earlier entered into consulting and marketing
agreements with Signalife, 14-15621 Gov’t C.A. Br. 37
n.17. The check displayed the CHM purchase-order
number on the memo line, along with the words “Tribou
& Assoc.” Pet. App. 44a (citation omitted).
Petitioner sought to use the email and check to support the inference that the CHM purchase order, which
called for a $50,000 deposit, was not fraudulent. Pet.
App. 44a-45a. The government objected to the admission of the check and the email on the ground that the
email’s contents were hearsay. Id. at 45a. The district
court sustained the objection and noted that petitioner
had failed to authenticate the document. Ibid. Although
the court allowed petitioner to recall Signalife’s custodian of records and provided petitioner with additional
guidance as to how petitioner might admit the exhibit,
petitioner was unsuccessful in authenticating the email
and check, which were not admitted into evidence.
14-15621 Gov’t C.A. Br. 38. Petitioner also elected not
to call Thomas Tribou as a witness, Pet. App. 45a, even
though the government offered to arrange and finance
Tribou’s travel so that Tribou might testify, 14-15621
Gov’t C.A. Br. 39-40. Nevertheless, the court suggested
that the parties consider the following stipulation: “On
or about September 27th, 2007, an individual named
10
Thomas Tribou paid Signalife $50,000 for goods he expected to receive.” Pet. App. 45a. Petitioner accepted
this stipulation, which was presented to the jury. Ibid.
During his closing argument, petitioner argued
based on the stipulation concerning Tribou’s $50,000
payment that the CHM purchase order was not fraudulent. 14-15621 Gov’t C.A. Br. 42. In rebuttal, the government asserted that the CHM purchase order was
“fake” and that Tribou’s signature on the CHM purchase order and $50,000 payment did not establish otherwise. Id. at 42-43 (citation omitted). While not contesting the existence of the $50,000 payment, the government observed, among other things, that CHM, not
Tribou, was listed as the purchaser on the CHM purchase order; that Tribou’s contracts with Signalife did
not mention CHM; and that petitioner had denied in his
SEC testimony knowledge of a connection between Tribou and CHM. See id. at 42; 5/20/13 Trial Tr. 117-118.
The jury found petitioner guilty on all 14 counts. Pet.
App. 33a; 8/29/18 Am. Judgment 1.
c. Petitioner filed a series of post-trial motions, including motions for a new trial in which he asserted
(among other things) that the government had committed numerous discovery violations and had engaged in
prosecutorial misconduct by making false statements to
the district court and the jury and that a number of government witnesses, including Woodbury and Jones, had
testified untruthfully. 14-15621 Gov’t C.A. Br. 32; see,
e.g., D. Ct. Doc. 281, at 3 (Oct. 31, 2013). The district
court denied the motions, which it described as “baseless” and “offensive.” Pet. App. 68a.
The district court sentenced petitioner to a total of
204 months of imprisonment, to be followed by two
11
years of supervised release. 4/8/15 Am. Judgment 2-3.
It also ordered restitution and forfeiture. Id. at 5-6.
3. The court of appeals affirmed petitioner’s convictions but vacated his sentence and remanded for resentencing. Pet. App. 24a-67a.
As relevant here, the court of appeals rejected petitioner’s contention that allegedly false statements by the
prosecutor and purportedly false trial testimony by a
number of witnesses violated Giglio v. United States,
405 U.S. 150 (1972). 2 The court concluded that petitioner
had “failed to identify * * * any materially false testimony on which the government relied, purportedly in violation of Giglio.” Pet. App. 25a-26a. Although petitioner
“identifie[d] several categories of statements he contend[ed] were false,” the court explained that “none of
them support[ed] a Giglio violation, and [that] only two
merit[ed] discussion: (1) statements the prosecutor made
to the court and during his closing argument regarding
Thomas Tribou and (2) testimony of Ms. Jones and Mr.
Woodbury about the bogus purchase orders.” Id. at 43a.
Petitioner’s contention that both categories of statements
were false was premised on the October 24, 2007, email
and $50,000 check that he had unsuccessfully sought to
have admitted into evidence. See id. at 44a-45a, 49a.
The court of appeals rejected petitioner’s contention
that the prosecutor had made a false statement when he
“told the jury [in his closing argument] that the CHM purchase order was ‘all made up’ and ‘fake.’ ” Pet. App. 47a
The court of appeals also rejected petitioner’s claims that the
government had failed to disclose exculpatory evidence in violation
of Brady v. Maryland, 373 U.S. 83 (1963), Pet. App. 39a-41a; that
the district court abused its discretion in denying his requests for a
hearing on his post-trial motions and for additional discovery, id. at
50a; and that cumulative error warranted reversal, ibid.
2
12
(citation omitted). The court explained that, even if
Thomas Tribou’s signature appeared on the CHM purchase order and he paid Signalife $50,000, “[t]he fact that
[petitioner] obtained Mr. Tribou’s signature and check
does not rule out the possibility that [petitioner] also fabricated the purchase order.” Id. at 47a-48a. “Indeed,” the
court observed, “the government made this argument in
its rebuttal, stating that regardless of any signatures [petitioner] obtained, the purchase orders were fake.” Id. at
48a. “Moreover,” the court continued, “the record contained overwhelming evidence that [petitioner] fabricated
supporting documentation for the purchase orders and
used arbitrary names for companies and individuals supposedly purchasing Signalife products.” Ibid.
The court of appeals also rejected petitioner’s contention that the prosecutor had made two false statements
to the district court, without the jury present, during the
discussion of the October 24, 2007, email and Tribou
check. Pet. App. 45a-47a. The prosecutor had stated to
the district court that, if Tribou were called to testify, he
would state that he “never received any product and was
not a Signalife reseller.” Id. at 45a. The court of appeals
explained that this statement was not false because, although Tribou had told SEC investigators that he signed
the CHM purchase order, his SEC testimony “in no way
indicates [that Tribou] would have testified that he actually received Signalife products” or that he “considered
himself a Signalife reseller.” Id. at 45a-46a. As the court
of appeals observed, and petitioner did not dispute, the
government advised the district court that “Tribou likely
would testify that he had no connection with CHM and
that he agreed to [petitioner’s] request to sign a blank
purchase order.” Id. at 45a n.11. The court of appeals
likewise concluded that the prosecutor did not lie when
13
he advised the court that Tribou claimed to be “unfamiliar with Tribou & Associates,” a name that appeared on
the $50,000 check. Id. at 46a. Although Tribou had previously said that he was familiar with the name, the court
explained that “a prior statement that is merely inconsistent with a government witness’s testimony is insufficient to establish prosecutorial misconduct.” Id. at
46a-47a (quoting United States v. McNair, 605 F.3d
1152, 1208 (11th Cir. 2010), cert. denied, 562 U.S. 1270
(2011)). The court of appeals also rejected petitioner’s
contention that the prosecutor’s statement was material,
observing that the district court’s ruling that the check
and the email were inadmissible was made before the
prosecutor’s statement. Id. at 47a.
Finally, the court of appeals addressed petitioner’s
claims that Jones had “lied when she characterized the
three purchase orders as ‘phantom purchase orders’
simply because she lacked supporting documentation”
and that Woodbury had “lied when he said he got all his
information about the purchase orders from [petitioner].” Pet. App. 49a. Petitioner contended that those
statements were untrue because Jones and Woodbury
had both received the October 24, 2007, email attaching
the $50,000 Tribou check. Ibid. The court, however, did
not find that Jones or Woodbury had testified falsely.
And it determined that the “allegedly false testimony”
did not violate Giglio because “the record show[ed] that
[petitioner] located the email and the check before trial
and even produced them to the government,” and because the prosecutor had not “capitalized” on the challenged testimony during the trial. Ibid. “In the absence
of government suppression of the evidence,” the court
stated, “there can be no Giglio violation.” Ibid. (citing
Ford v. Hall, 546 F.3d 1326, 1331 (11th Cir. 2008), cert.
14
denied, 559 U.S. 906 (2010); DeMarco v. United States,
928 F.2d 1074, 1076-1077 (11th Cir. 1991)).
The court of appeals separately concluded that the
district court erred in calculating petitioner’s Sentencing Guidelines range, vacated his sentence, and remanded the case for resentencing. Pet. App. 51a-63a.
4. Petitioner filed a petition for a writ of certiorari
seeking review of the court of appeals’ decision, contending that the court had “accepted that the government knowingly used false, material testimony to convict” him and that the Due Process Clause does not “excuse[] the government’s knowing use of false testimony
where the government does not also suppress evidence
indicating that the testimony was false.” 17-250 Pet. i.
The government opposed further review, arguing
both that the court of appeals’ decision was correct and
that this Court should defer consideration of petitioner’s contention because a final judgment had not yet
been entered. 17-250 Br. in Opp. 13-24. This Court denied certiorari. 138 S. Ct. 556 (No. 17-250).
5. While petitioner’s first appeal was pending, he
filed another motion for a new trial in the district court,
“press[ing] the same argument he had made on appeal:
that the government made or allowed the admissibility
of material misstatements in violation of his due process
rights.” Pet. App. 6a. Petitioner cited statements that
the government made during appellate proceedings,
which he characterized as newly discovered evidence
buttressing his false testimony claims. Ibid.
Almost two years after filing that new-trial motion—
more than a year after the court of appeals had rejected
petitioner’s due-process claims, and five years after the
verdict—petitioner supplemented the motion with a
declaration from Thomas Tribou stating (among other
15
things) that Tribou had signed a Signalife purchase order that was “blank except for the number of units and
the cost” and that Tribou’s wife signed the $50,000
check and wrote the purchase-order number in the
memo section. D. Ct. Doc. 529-1, at 1 (May 16, 2018);
see Pet. App. 6a, 15a; 18-13762 Gov’t C.A. Br. 21-22.
The district court denied the new-trial motion. Pet.
App. 22a-23a. Following a resentencing hearing, the
court imposed a revised sentence of 150 months of imprisonment, to be followed by three years of supervised
release. 8/29/18 Am. Judgment 2-3. The court imposed
a reduced restitution order and reimposed the same forfeiture order. Id. at 5-6.
6. The court of appeals affirmed. Pet. App. 1a-21a.
With respect to petitioner’s “attempts to relitigate
alleged due process violations,” the court of appeals observed that “[t]he mandate rule and the law of the case
doctrine bar[red]” the court “from revisiting th[at]
claim.” Pet. App. 2a, 7a. The court noted that it “had
already heard and squarely rejected [petitioner’s] argument that the government knowingly relied on false testimony.” Id. at 14a.
The court of appeals rejected petitioner’s argument
that his claim fell within any exception to the law-of-thecase doctrine. The court determined that the exception
for newly discovered evidence did not apply because the
“only new evidence” on which petitioner relied on appeal, the Tribou declaration, was “untimely.” Pet. App.
15a. The court explained that Federal Rule of Criminal
Procedure 33(b)(1) requires that a new-trial motion
based on newly discovered evidence be filed within
three years of the verdict. Pet. App. 15a. And the court
observed that the Tribou declaration had been brought
16
to the district court’s attention two years after the filing
of the new-trial motion and five years after the verdict.
The court of appeals additionally found the Tribou
declaration to be “immaterial” because it “does not
speak to the government’s theory of the case,” namely,
“that [petitioner] fabricated details within the purchase
orders at issue.” Pet. App. 15a-16a. The court observed
that “Tribou concede[d] in his declaration that the order
form he filled out remained ‘blank except for the number of units and the cost.’ ” Id. at 16a.
The court of appeals further determined that petitioner’s claim did not fall within the exception for “manifest injustice.” Pet. App. 16a. The court explained that,
“[f ]or most of the statements at issue, the [prior] panel
could not find sufficient evidence that the government
knowingly relied on false testimony in the first place.”
Ibid. “For the small subset of statements that remain,”
the court continued, “the panel determined, after citing
to our binding precedent, that [petitioner] failed to show
how the government either suppressed or capitalized on
allegedly false testimony.” Ibid. And the court found
no grounds for reconsidering those determinations, because they were neither “clearly erroneous” nor “manifestly unjust.” Id. at 16a-17a.
The court of appeals also affirmed petitioner’s sentence. Pet. App. 7a-13a, 17a-21a.
ARGUMENT
Petitioner contends (Pet. 13-26) that the court of appeals applied an erroneous standard in rejecting his
claim that the government relied on the purportedly
false testimony of Jones and Woodbury to secure his
conviction. The court correctly rejected petitioner’s
false-testimony claim, and its decision does not conflict
17
with any decision of this Court or another court of appeals. This Court has previously denied petitions for
writs of certiorari presenting similar claims, including a
prior petition filed by petitioner in this case raising substantially the same claim he raises now. 138 S. Ct. 556
(2017) (No. 17-250); see also Villanueva-Rivera v.
United States, 553 U.S. 1019 (2008) (No. 07-9021). The
same course is warranted here.
1. Citing this Court’s decision in Giglio v. United
States, 405 U.S. 150 (1972), the court of appeals properly
recognized in its earlier decision that a prosecutor’s
knowing use of materially false testimony, or his knowing failure to correct materially false testimony of a government witness, violates due process. Pet. App.
42a-43a; see Napue v. Illinois, 360 U.S. 264, 269-272
(1959). The court also correctly recognized that false
testimony is “material” if “there is any reasonable likelihood that [it] could have affected the judgment.” Pet.
App. 42a (citation omitted); see ibid. (explaining that
“[t]he could have standard requires a new trial unless
the prosecution persuades the court that the false testimony was harmless beyond a reasonable doubt” (citation omitted)); United States v. Bagley, 473 U.S. 667,
679 n.9 (1985) (opinion of Blackmun, J.). The court of
appeals properly found no violation of that established
prohibition in this case. Pet. App. 25a-26a, 41a-51a; see
id. at 14a-17a.
a. Petitioner’s assertion that the court of appeals
“twice acknowledged that the government knowingly
relied on false testimony” is incorrect. Pet. 20 (emphasis omitted). In its 2017 opinion, the court explicitly determined that petitioner “failed to identify * * * any
materially false testimony on which the government relied, purportedly in violation of Giglio.” Pet. App.
18
25a-26a. That determination plainly encompassed the
challenged testimony of Jones and Woodbury, which
was the only allegedly false testimony discussed in the
court’s opinion. See id. at 49a-51a. And in its subsequent opinion in the present appeal, the court left its
prior ruling unchanged, noting that the prior panel “already heard and squarely rejected [petitioner’s] argument that the government knowingly relied on false testimony.” Id. at 14a; see id. at 16a (referring to “allegedly false testimony” (emphasis added)).
In asserting (Pet. 21-22) that the court of appeals
found that the challenged testimony of Woodbury and
Jones was material, petitioner takes a statement made
by the court that references only Jones (not Woodbury)
out of context, see Pet. App. 49a. In the statement petitioner cites, the court simply observed that Jones’s
testimony “that she received no backup for the purchase orders” was more significant than her reference
to “ ‘phantom purchase orders.’ ” Id. at 49a & n.13. It
did not declare that, for purposes of evaluating the due
process claim, the testimony was material either with
respect to Jones’s entire testimony or to the trial as a
whole. Id. at 49a.
b. The court of appeals’ factbound determination
that petitioner failed to show that the government relied on materially false testimony is correct and does
not warrant this Court’s review.
Petitioner contends that, because Jones and Woodbury both received the October 24, 2007, email with the
Tribou check attached, Jones testified falsely when she
described the purchase orders as “ ‘phantom purchase
orders’ ” and stated that she “ ‘never received any
backup or anything on them,’ ” and Woodbury testified
falsely when he said that “petitioner was the sole source
19
for the information in the press releases.” Pet. 7 & n.1
(citation omitted); see Pet. 21. Petitioner, however, cannot demonstrate that those statements were false, much
less “perjured.” E.g., Pet. 2 (citation omitted). The record supports Jones’s characterization of the purchase
orders as “phantom purchase orders.” With respect to
Jones’s statement concerning “backup,” no evidence exists that she received any supporting documentation for
the two IT Healthcare purchase orders. And in the absence of a clear connection between CHM and Thomas
Tribou, Jones may not have considered the email and
check to be bona fide “backup” for the CHM purchase
order.
Similarly, no sound basis exists for finding that
Woodbury lied when he stated that, in preparing Signalife’s SEC filing for the third quarter of 2007, he “got
all [his] information from [petitioner].” 5/7/13 Trial Tr.
96. Petitioner identifies no evidence that Woodbury relied on any other information in preparing that filing.
Although Woodbury had received the email and check,
he may not have considered them in connection with the
filing; and even if he did consider them, Woodbury may
not have viewed them as independent of the information
he received directly from petitioner. Nor is there any
reason to conclude that the prosecution should have
considered the challenged testimony to be false. The
prosecutors were aware that Thomas Tribou had denied
having any connection with CHM; that petitioner had
Tribou sign a blank purchase order; and that Tribou
doubted he had written the purchase-order number on
the check. Pet. App. 45a-46a & n.11.
In any event, any inaccuracy in the challenged testimony of Jones and Woodbury was not material. Acknowledgment that Jones and Woodbury received the
20
October 24, 2007, email and check could not have supported a plausible inference that the purchase orders
were non-fraudulent. The email and check say nothing
about the counts relating to the two fraudulent IT
Healthcare purchase orders. And for the CHM order,
while the email and check provide evidence that Thomas
Tribou made a $50,000 payment to Signalife in exchange
for goods Tribou expected to receive, the jury learned
that fact through the parties’ stipulation following petitioner’s unsuccessful attempt to authenticate and introduce the email and check into evidence and his refusal
to accept the government’s offer to arrange for Tribou
to testify at trial regarding any connection he had to
CHM or the CHM purchase order. Acknowledgment by
Jones and Woodbury that they saw the email and check
would not have established that CHM existed, that
CHM had any connection to Tribou, or that an entity
called CHM made the purchase purportedly reflected in
the purchase order. The court of appeals thus properly
found that the prosecutor did not lie when he called the
CHM purchase order “all made up” and “fake” in his
closing argument. Pet. App. 47a-48a (citation omitted).
As the evidence showed and the government emphasized during its rebuttal closing, CHM, not Thomas Tribou, was listed as the purchaser on the purchase order;
Tribou’s contracts with Signalife did not even mention
CHM; and, of particular significance, petitioner himself
expressly denied in his SEC testimony knowledge of
any connection between CHM and Tribou.
See
14-15621 Gov’t C.A. Br. 42; 5/20/13 Trial Tr. 117-118.
And as the court of appeals correctly found (Pet. App.
48a), the record contains “overwhelming evidence that
[petitioner] fabricated supporting documentation for
the purchase orders”—including letters requesting
21
shipping address changes and containing “arbitrary
names” and made-up addresses—and caused those letters to be sent to Signalife, all in an effort to maintain
the false impression that the purchase orders were genuine. There is no reasonable likelihood that the jury
would have viewed the CHM purchase order as nonfraudulent based on acknowledgement by Jones and
Woodbury that they received the October 24, 2007,
email and the Tribou check, much less that it would have
concluded that petitioner’s broader scheme involving
the creation of numerous fictitious documents, fake addresses, and fictitious people, was not fraudulent.
c. Petitioner contends (Pet. 22) that materiality “is
not an element of a false evidence claim.” But he
acknowledges (ibid.) that, even if it is not, such a claim
is reviewed for harmlessness under Chapman v. California, 386 U.S. 18 (1967). And “[t]he Court in Chapman noted that there was little, if any, difference between a rule formulated, as in Napue, in terms of
‘whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction,’ and a rule ‘requiring the beneficiary of a constitutional error to prove beyond a reasonable doubt
that the error complained of did not contribute to the
verdict obtained.’ ” Bagley, 473 U.S. at 679 n.9 (opinion
of Blackmun, J.) (quoting Chapman, 386 U.S. at 24).
The outcome of petitioner’s challenge to his conviction
thus does not turn on the precise formulation or terminology used to evaluate his claim.
In contending (Pet. 21) that the challenged testimony constitutes reversible error, petitioner fails to address the extensive evidence detailing his fraudulent
scheme, see, e.g., pp. 7-8, supra. He relies instead on
22
two pieces of peripheral evidence that do nothing to undermine the verdict. First, he asserts that “Signalife
received down payments for one of the sales made to IT
Healthcare.” Pet. 21 (citing Gov’t Ex. 123, at 1). It is
by no means certain that any individual gave Signalife
a $12,500 deposit on the $564,000 purchase order. See
14-15621 Gov’t C.A. Br. 8 n.4. Petitioner relies on a onesentence reference in a “[t]entative and [p]reliminary”
memorandum prepared by Signalife to establish this
point. Gov’t Ex. 123, at 1 (emphasis omitted). In any
event, any such deposit that it might have received, like
the $50,000 check provided by Tribou, would not undermine the “overwhelming evidence” demonstrating the
fraudulent nature of the purchase orders. Pet. App.
48a.
Petitioner also relies on his assertion that Carter, his
personal assistant, “lied to petitioner in connection with
Signalife’s sales efforts.” Pet. 21; see Pet. 8 (citing
5/13/13 Trial Tr. 45). That assertion, however, rests on
a single sentence in Carter’s testimony in which he
agrees that he tried to “impress” petitioner when he
told him that his father-in-law was a doctor in the Philippines who “had contacts in Asia.” 5/13/13 Trial Tr. 45.
That testimony likewise does nothing to diminish the
abundant evidence that petitioner, using Carter and
others, masterminded the elaborate fraud upon which
the charges on which he was convicted were based.
2. Petitioner contends (Pet. 22-26) that the court of
appeals erred in its further statement that he could not
establish a violation of Giglio based on the allegedly
false testimony of Jones and Woodbury because he himself possessed the October 24, 2007, email and the Tribou check before and during trial but nonetheless failed
23
to challenge or clarify the testimony. That contention
lacks merit and does not warrant further review.
a. Contrary to petitioner’s contention (Pet. 22),
nothing in Napue or in this Court’s other decisions suggests that a defendant is entitled to a new trial where,
as here, the defense had the means and opportunity to
challenge purportedly false testimony at the time of its
admission but did not object or attempt to challenge or
clarify the testimony through cross-examination. 3
Since Napue, the courts of appeals that have directly
addressed the issue have held that, absent certain extenuating circumstances, “there is no violation of due
process resulting from prosecutorial non-disclosure of
false testimony if defense counsel is aware of it and fails
to object.” Pet. App. 43a (quoting Routly v. Singletary,
33 F.3d 1279, 1286 (11th Cir. 1994) (per curiam), cert.
denied, 515 U.S. 1166 (1995)) (brackets omitted); see
United States v. Mangual-Garcia, 505 F.3d 1, 10-11 (1st
Cir. 2007), cert. denied, 553 U.S. 1019 (2008); United
States v. Helmsley, 985 F.2d 1202, 1205-1208 (2d Cir.
1993); United States v. Harris, 498 F.2d 1164, 1170 (3d
Petitioner asserts (Pet. 8) that he “discovered” the October 24,
2007, email and check, “in the government’s voluminous pretrial disclosures,” only after Jones and Woodbury had testified. As the
court of appeals observed, however, that assertion contradicts the
record. “In fact,” the court noted, “the record shows that [petitioner] located the email and the check before trial and even produced them to the government.” Pet. App. 49a. Moreover, petitioner has not affirmatively stated that he was unaware of the existence of the $50,000 check, or that he was unaware that the $50,000
check had been provided to Signalife. Indeed, given that petitioner
is the one who dealt directly with Thomas Tribou and obtained his
signature on the “blank purchase order” that became the purported
CHM purchase order, id. at 45a n.11, such claim would not be credible.
3
24
Cir.), cert. denied, 419 U.S. 1069 (1974); United States
v. Meinster, 619 F.2d 1041, 1045-1046 (4th Cir. 1980);
United States v. Decker, 543 F.2d 1102, 1105 (5th Cir.
1976), cert. denied, 431 U.S. 906 (1977); United States v.
Lochmondy, 890 F.2d 817, 822-823 (6th Cir. 1989); Evans v. United States, 408 F.2d 369, 370 (7th Cir. 1969);
United States v. Crockett, 435 F.3d 1305, 1317-1318
(10th Cir. 2006); United States v. Iverson, 648 F.2d 737,
738-739 (D.C. Cir. 1981) (statement of Greene, J., respecting denial of rehearing). 4
The courts have based that general rule on the settled,
common-sense proposition that “[a] defendant may not sit
idly by in the face of obvious error and later take advantage of a situation which by his inaction he has helped
to create.” Harris, 498 F.2d at 1170 (citation omitted); see
Courts have recognized that the general principle precluding a
defendant from challenging false testimony to which he failed to object may be relaxed where “the defendant was prevented ‘from raising or pursuing the [Napue] issue’ at trial by ‘circumstances essentially beyond his control.’ ” Mangual-Garcia, 505 F.3d at 11 (quoting Iverson, 648 F.2d at 739 (statement of Greene, J., respecting denial of rehearing)); accord Ross v. Heyne, 638 F.2d 979, 986 (7th Cir.
1980) (recognizing exception to waiver rule where defense counsel,
unbeknownst to defendant, failed to correct false testimony because
of conflict of interest). Courts, including the court below, have also
relaxed the principle where the prosecution not only failed to correct perjured testimony, but also affirmatively capitalized on it. Pet.
App. 43a (citing DeMarco v. United States, 928 F.2d 1074, 1076-1077
(11th Cir. 1991), and United States v. Sanfilippo, 564 F.2d 176, 178179 (5th Cir. 1977)). None of those circumstances is present here.
Although petitioner suggests (Pet. 17 n.4) that the prosecutor did
capitalize on the allegedly false testimony, the court of appeals correctly reached the opposite conclusion. Pet. App. 49a. The government did not argue that the $50,000 check did not exist or even that
there was no $50,000 deposit on the CHM purchase order, and “the
prosecutor never mentioned Ms. Jones’s statement that she received no backup for the purchase orders.” Id. at 49a & n.13.
4
25
Evans, 408 F.2d at 370 (a defendant “cannot have it both
ways” by withholding objection to false testimony, “gambling on an acquittal,” and then raising the issue on appeal
“after the gamble fails” (citation omitted)). And this
Court has recognized the need to enforce rules that protect against that type of gamesmanship by a criminal defendant. See Puckett v. United States, 556 U.S. 129, 134
(2009) (“[T]he contemporaneous-objection rule prevents
a litigant from sandbagging the court—remaining silent
about his objection and belatedly raising the error only
if the case does not conclude in his favor.” (internal quotation marks omitted)); Davis v. United States, 411 U.S.
233, 241 (1973) (construing former Federal Rule of
Criminal Procedure 12’s waiver rule for the untimely
filing of certain pretrial motions).
Petitioner contends (Pet. 24-25) that the court of appeals “mistakenly merged the government’s duty under
Brady v. Maryland, 373 U.S. 83 (1963), to provide exculpatory evidence with its distinct duty under Mooney
[v. Holohan, 294 U.S. 103 (1935),] and Napue not to
knowingly introduce false evidence” and, as a result,
wrongly concluded that the government’s compliance
with its obligations under Brady necessarily relieved it
of its “separate, wholly independent duty to refrain
from seeking convictions through false evidence.” Petitioner is mistaken. Brady and Napue both involved information that was not available to the defense at trial.
See Brady, 373 U.S. at 84; Napue, 360 U.S. at 265. The
Court in Brady described Napue as an “extension” of
the rule from Mooney about when “nondisclosure by a
prosecutor violates due process,” and viewed all three
decisions as involving application of the same principle.
26
Brady, 373 U.S. at 86-87 (citing Napue, 360 U.S. at
269). 5
That principle, the Court has explained, “is not punishment of society for misdeeds of a prosecutor but
avoidance of an unfair trial to the accused.” Brady,
373 U.S. at 87 (citing Mooney, supra); see Smith v.
Phillips, 455 U.S. 209, 219 (1982) (“Past decisions of this
Court demonstrate that the touchstone of due process
analysis in cases of alleged prosecutorial misconduct is
the fairness of the trial, not the culpability of the prosecutor.”). That principle does not support petitioner’s
approach, under which a defendant who possesses independent evidence can simply choose not to present it to
the factfinder of truth and falsity—the jury—and instead rely on it to ask a court after the fact to find that
a witness lied and the government knew about it. 6
Although petitioner acknowledges (Pet. 25) that, “[w]hen the
government improperly withholds evidence under Brady, but a defendant obtains that evidence through other means before trial, the
trial itself is ultimately unaffected because the defendant is fully
able to present the evidence in his defense,” he asserts that, if “the
government resorts to false testimony,” that “necessarily distorts
the trial.” But the Court has never held that false testimony necessarily renders a trial unfair or that it requires automatic reversal.
Indeed, Napue itself establishes that, even when the government
knowingly uses perjured testimony, relief is unwarranted if there is
no “reasonable likelihood [that the false testimony could] have affected the judgment of the jury.” 360 U.S. at 271.
6
Petitioner contends (Pet. 25-26 n.6) waiver is not at issue because he challenged the testimony of Woodbury and Jones in posttrial motions and on appeal. But the waiver occurred earlier, when
petitioner chose not to raise a “contemporaneous[ ] objection” to
their testimony at the time they gave it or, indeed, at any time during trial, when the court could have taken corrective action if necessary. Puckett, 556 U.S. at 134-135; see Fed. R. Crim. P. 51(b).
5
27
The logic of the Court’s decision in Giglio is that the
disclosure of impeachment evidence to the defense can
alter the result of a trial in the defendant’s favor by allowing the defense to use the information to contest the
veracity of the government’s witnesses before the jury.
See 405 U.S. at 154. A defendant who in fact possesses
all the relevant information, but fails to make use of it,
cannot later complain that he did not receive a fair trial.
Cf. Briscoe v. LaHue, 460 U.S. 325, 333-334 (1983)
(“[T]he truth-finding process is better served if the witness’s testimony is submitted to the crucible of the judicial process so that the factfinder may consider it, after cross-examination, together with the other evidence
in the case to determine where the truth lies.” (citation
and internal quotation marks omitted)).
b. The court of appeals correctly identified (Pet.
App. 41a-43a) the due-process standard applicable to
this case. 7 In applying that standard, the court properly
considered the defendant’s access to the October 24,
2007, email and Tribou check in concluding that petitioner was not entitled to a new trial. Id. at 49a-50a.
Contrary to petitioner’s assertion (Pet. 24), the court
of appeals did not hold that the defense’s possession of
information demonstrating the purported falsity of testimony always forecloses relief. Rather, as petitioner
acknowledges (Pet. 17 n.4), the court expressly recognized (Pet. App. 43a, 49a) that capitalization by the
prosecution on testimony it knows to be false can warrant relief despite the availability of such information to
the defense. Other decisions demonstrate that the
The court of appeals correctly recognized that the materiality
standard applicable to false testimony claims is “more defensefriendly than Brady’s.” Pet. App. 42a (citation omitted); see Bagley,
473 U.S. at 679 n.9 (opinion of Blackmun, J.).
7
28
Eleventh Circuit will also take into account other extenuating circumstances, such as witness evasion or other
barriers to exposing false testimony, when they arise in
particular cases. See, e.g., United States v. Alzate,
47 F.3d 1103, 1110-1111 (1995) (granting new trial
where prosecutor’s actions precluded defendant from
exposing false statement during trial).
3. Petitioner cites (Pet. 14-16) several decisions in
which lower courts have granted relief on falsetestimony claims despite the defense’s knowledge of the
falsehood. But contrary to petitioner’s assertion (ibid.),
those decisions do not conflict with the decision below.
Unlike this case, each of the cases cited by petitioner
in which relief was granted involved testimony or statements that the court considered to be materially false.
See United States v. LaPage, 231 F.3d 488, 491 (9th Cir.
2000); United States v. Foster, 874 F.2d 491, 495 (8th
Cir. 1988); People v. Smith, 870 N.W.2d 299, 305 (Mich.
2015); State v. Yates, 629 A.2d 807, 809 (N.H. 1993);
State v. Brunette, 501 A.2d 419, 423-424 (Me. 1985); People v. Lueck, 182 N.E.2d 733, 733-734 (Ill. 1962).
Moreover, most of those cases also involved extenuating or other distinguishing circumstances that are not
present here. See LaPage, 231 F.3d at 490 & n.5 (granting relief where the defense attempted to impeach false
testimony but the witness thwarted that effort by
“play[ing] games” with his prior testimony and where
“prosecutor attempted to bolster [the witness’s] credibility in his closing argument in chief by arguing that
[he] was a credible witness”); Foster, 874 F.2d at 495
(granting new trial where prosecutor compounded witnesses’ false testimony regarding immunity by persuading district court to give false answer to jury ques-
29
tion on same issue); Yates, 629 A.2d at 810 (finding defense’s failure to correct did not undermine the claim
where “prosecutor would have likely objected”); Brunette, 501 A.2d at 422 (granting relief where, despite defense objection, trial court’s evidentiary rulings did not
cure the presentation of the false testimony); Smith,
870 N.W.2d at 306-307 (granting new trial where prosecutor not only failed to correct testimony, but also repeatedly capitalized on it and “sought to transform testimony that might have been merely confusing on its
own into an outright falsity”). 8
For similar reasons, the cases petitioner cites (Pet.
18) in which courts have “eschew[ed]” a “bright-line
rule” and considered “ ‘various factors’ ” in determining
whether a due process violation has occurred, where the
defense had the means and opportunity to challenge
purportedly false testimony, do not squarely conflict
with the court of appeals’ decision. See ibid. (citing
United States v. Freeman, 650 F.3d 673, 678-682 (7th
Cir. 2011); Jenkins v. Artuz, 294 F.3d 284, 294-295 (2d
Cir. 2002); Gomez v. Commissioner of Corr., No.
SC 20089, 2020 WL 3525521, at *8 (Conn. June 29,
2020); and Hawthorne v. United States, 504 A.2d 580,
591-593 (D.C. 1986), cert. denied, 479 U.S. 992 (1986)).
Indeed, as discussed above, the views of both courts of
appeals whose decisions petitioner cites as illustrative
(the Second and Seventh Circuits) are closely aligned with
the court of appeals here. See pp. 23-24, supra; Freeman,
The court in Smith expressly acknowledged that “a defendant
can waive a claim of error under Napue” but declined to decide
whether there was a waiver on the facts before it because “the prosecution ha[d] never argued in the course of th[e] appeal that the defendant waived his Napue objection.” 870 N.W.2d at 306 n.7.
8
30
650 F.3d at 681 (“[W]e also weigh whether the defendants had an adequate opportunity to expose the false
testimony on cross-examination.”). 9 Petitioner thus
fails to demonstrate a conflict among the lower courts
that warrants this Court’s review.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
JEFFREY B. WALL
Acting Solicitor General
BRIAN C. RABBITT
Acting Assistant Attorney
General
SANGITA K. RAO
Attorney
NOVEMBER 2020
In another decision cited by petitioner (Pet. 3), the Ninth Circuit
asserted that “the state has a constitutional duty to correct false
testimony given by its witnesses, even when the defense knows the
testimony was false but does nothing to point out such falsity to the
jury or judge.” Soto v. Ryan, 760 F.3d 947, 968 (2014), cert. denied,
576 U.S. 1025 (2015). But the court went on to reject the defendant’s
claim on the ground that the testimony in question did not create a
“material[ly] false impression.” Id. at 969. The court thus did not
directly address whether the defendant’s knowledge of the claimed
falsity of the issue would have prevented the court from granting a
new trial.
9
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.