United States v. Rivero ( 2001 )

United States Court of Appeals
For the First Circuit
____________________
No. 00-2014
UNITED STATES OF AMERICA,
Appellee,
v.
MANUEL GONZÁLEZ-GONZÁLEZ,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
____________________
Before
Torruella, Selya and Lynch, Circuit Judges.
____________________
Judith H. Mizner for appellant.
Rose A. Briceño, Attorney, Criminal Division, Department of
Justice, for appellee.
____________________
July 19, 2001
____________________
LYNCH, Circuit Judge. This case presents a question this
court previously reserved: what is the standard to be applied to a
criminal defendant's motion for a new trial where the claim is that the
prosecution knowingly used perjured testimony.
Manuel González-González, convicted of drug conspiracy and
money laundering offenses in Puerto Rico, sought a new trial based on
what he asserts is newly discovered evidence that two government
witnesses recanted their testimony against him after his trial.
González says those two witnesses perjured themselves, and that the
prosecution knew of at least one witness' perjury at the time. On this
point the trial judge made no finding as to whether there was perjury
or, if so, whether the government knew about it. Instead, the trial
judge held that defendant did not, in any event, meet a "reasonable
probability of a different result" standard, thus applying the standard
used for claims of failure to disclose exculpatory evidence under Brady
v. Maryland, 373 U.S. 83 (1963). González also sought a new trial
based on the government's failure to disclose exculpatory evidence, and
he claims that the prosecution engaged in misconduct during his trial
by misstating the extent of a government witness' cooperation. The
district court denied the motion. We affirm.
I.
González was charged on November 2, 1994 with conspiracy to
possess with intent to distribute cocaine and marijuana, possession
with intent to distribute marijuana, possession with intent to
distribute cocaine, importation of marijuana and cocaine, and aiding
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and abetting in the laundering of narcotics-related proceeds. After a
nineteen-day jury trial, González was found guilty as charged and
sentenced to life imprisonment.
At González's trial, several of González's alleged co-
conspirators testified about González's involvement in the drug and
money laundering offenses charged, as did several cooperating witnesses
and federal agents involved in the investigation. In addition, the
government introduced documentary evidence, such as tape recordings of
telephone conversations, travel records, and surveillance photographs
to corroborate the testimonial evidence. We summarize the evidence
that was before the jury.
One of the government witnesses, Ricardo Rivero, testified
that in 1991 González recruited him to assist in retrieving and
repackaging 900 pounds of marijuana imported into Puerto Rico from
Colombia, and in transporting cocaine from Puerto Rico to New York.
The drugs were stored at the home of Manuel Garrido. Luz Marina
Giraldo, another witness cooperating with the government, corroborated
Ricardo's testimony, as did an FBI agent who arrested Garrido and found
the drugs.
Another of González's alleged recruits, Roberto Garraton-
Rivera, testified as a government witness that he had participated in
drug trafficking activities with González. Garraton described specific
occasions on which he and other associates of González smuggled drugs
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to New York at González's behest. Both Garraton and Ricardo testified
that they once called González to resolve a dispute they had over
Garraton's payment for a shipment of drugs.
Several witnesses, including Ricardo and Giraldo, testified
about a large shipment of marijuana and cocaine that González imported
from Colombia to Puerto Rico in 1992, which was buried in the sand at
a particular beach. Law enforcement officers testified that they
seized a similar quantity of drugs in the same location as the one
described in Ricardo's and Giraldo's testimony. Ricardo and Roberto
Sierra Rivera, a paid government informant, also testified that they
assisted González's organization in importing cocaine from Colombia to
Puerto Rico in 1992. Both Ricardo and Sierra testified that they
delivered some of the shipment to New York, and returned to Puerto Rico
with the drug sale proceeds; they also testified that another
participant was arrested on the return trip to Puerto Rico, which was
corroborated by the arresting officer. Sierra also testified about the
activities of González's drug trafficking enterprise during 1993. Law
enforcement agents corroborated Sierra's testimony.
The government also provided evidence that González and his
associates laundered the proceeds from the drug sales through financial
institutions in Puerto Rico, then sent the money to Colombia. A
cooperating government witness, Angel Santiago Mora, and an undercover
FBI agent, Martin Suarez, testified about several instances when
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González and others in his organization delivered several hundred
thousand dollars in cash to them to be laundered. In addition to the
testimony of Moran and Suarez, the government also produced audiotapes
of González and his associates in which González made admissions about
his participation in drug trafficking and money laundering activities.
After he was convicted and we affirmed his conviction on
appeal, see United States v. González-González, 136 F.3d 6 (1st Cir.
1998), González moved for a new trial under Rule 33, Fed. R. Crim. P.,
based on newly discovered evidence which, González claimed,
demonstrated that both Garraton and Giraldo had testified falsely
against him at trial. In support of those claims, González offered
sworn statements of two inmates attesting that they had overheard
Giraldo recanting her trial testimony, and one inmate attesting that
Garraton had recanted his testimony. González also claimed he was
entitled to a new trial because the government knowingly permitted the
introduction of false testimony by Giraldo and pressured Giraldo to
testify falsely. In addition, González cited Brady violations and
prosecutorial misconduct, claiming that the government failed to
disclose exculpatory evidence, including an FBI report of Giraldo's
debriefing, and also misled both González and the court about the
status of Giraldo's cooperation with the government.
The district court denied González's motion, concluding that
there was no reasonable probability that the evidence in the affidavits
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would lead to González's acquittal upon retrial in light of the
extensive evidence against González in addition to Giraldo and
Garraton's testimony. The court also found that any Brady violations
by the government did not compromise González's right to a fair trial
because the undisclosed evidence was merely cumulative of evidence
González used at trial to impeach Giraldo's credibility.
II.
We review for manifest abuse of discretion the district
court's denial of González's motion for a new trial. United States v.
Alicea, 205 F.3d 480, 486 (1st Cir. 2000). The district court's
interpretation of legal standards is reviewed de novo. United States
v. Josleyn, 206 F.3d 144, 151 (1st Cir. 2000).
González brought his new trial motion under Fed. R. Crim. P.
33, which allows the court to order a new trial "if the interests of
justice so require," and under a theory of alleged violations of Brady
v. Maryland, 373 U.S. 83 (1963), which requires the prosecution to
disclose material exculpatory evidence in its possession.
A. Standards for Motions for New Trial
Generally under Rule 33, a defendant who seeks a new trial
based on newly discovered evidence must show that: "(1) the evidence
was unknown or unavailable to the defendant at the time of trial; (2)
failure to learn of the evidence was not due to lack of diligence by
the defendant; (3) the evidence is material, and not merely cumulative
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or impeaching; and (4) it will probably result in an acquittal upon
retrial of the defendant." United States v. Wright, 625 F.2d 1017,
1019 (1st Cir. 1980); see also Alicea, 205 F.3d at 487. A defendant's
new trial motion must be denied if he fails to meet any one of these
factors. United States v. Falu-Gonzalez, 205 F.3d 436, 442 (1st Cir.
2000).
Different standards as to the third and fourth showings
govern the consideration of new trial motions depending on the grounds
for the motion. As we described in Josleyn, if the basis is that the
government has failed to disclose information required by Brady, then
the more defendant-friendly Kyles v. Whitley standard applies. See
Joselyn, 206 F.3d at 151-52. Under the Kyles standard, the defendant
must show a "reasonable probability" that had the evidence been
disclosed to the defense the result of the proceeding would have been
different, and that, in turn, requires an analysis of whether the trial
resulted, in the absence of such evidence, in a verdict worthy of
confidence. Kyles v. Whitley, 514 U.S. 419, 434 (1995). If, however,
the motion is a routine Rule 33 motion based on newly discovered
evidence that does not involve an alleged Brady violation, then the
standard is more onerous for defendants, and defendant must show the
new material evidence "will probably result in an acquittal." Wright,
625 F.2d at 1019. This means an "actual probability that an acquittal
would have resulted if the evidence had been available." United States
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v. Sepulveda, 15 F.3d 1216, 1220 (1st Cir. 1993).
A further application of these two basic standards -- the
Kyle "verdict worthy of confidence" standard and the Rule 33 "actual
probability" of acquittal standard -- was addressed in United States v.
Huddleston, 194 F.3d 214 (1st Cir. 1999). The question there was what
standard to apply to a new trial motion which alleged that the
prosecutor had unwittingly used perjured testimony. See 194 F.3d at
221-22. Huddleston rejected earlier cases in this circuit suggesting
that in such a situation, it may be appropriate to apply a lower
standard, announced in Larrison v. United States, 24 F.2d 82 (7th Cir.
1928), that a defendant need only show that the newly discovered
evidence "might" produce a different result. See Larrison, 24 F.2d at
87; see also United States v. Natanel, 938 F.2d 302, 313 (1st Cir.
1991). Instead, Huddleston held that
when a defendant grounds a motion for a new trial
in a criminal case on a claim that he has newly
discovered perjury on the part of one or more
government witnesses, the conviction nonetheless
should stand unless the force of the newly
discovered event (i.e., the fact and nature of
the perjury) and the content of the corrected
testimony are such that an acquittal probably
would result upon retrial.
194 F.3d 221 (emphasis added). Huddleston expressly reserved for
another day the question of the standard to be used as to claims of
knowing or reckless use by the government of perjured testimony. See
id.-8-
We resolve that question as, we believe, Supreme Court
precedent requires us to do. Although González does not categorize
knowing use of perjured testimony as a Brady type error, we think it is
sufficiently analogous that the Brady error rule should apply to claims
of knowing use of perjured testimony.
The risk that a conviction was brought about by the
government's knowing use of perjury goes to the concerns about fairness
of the trial that animated Kyle. Obtaining a conviction by presenting
testimony known to be perjured "is inconsistent with the rudimentary
demands of justice." Mooney v. Holohan, 294 U.S. 103, 112 (1935);
accord Giglio v. United States, 405 U.S. 150, 153 (1972). In Napue v.
Illinois, 360 U.S. 264 (1959), a pre-Brady case, the Supreme Court said
a new trial is required if "the false testimony could . . . in any
reasonable likelihood have affected the judgment of the jury." 360
U.S. at 271. The Supreme Court has several times referred to the
prosecution's knowing use of perjured testimony as a category of Brady
error, see, e.g., Strickler v. Greene, 527 U.S. 263, 280-81 (1999);
United States v. Agurs, 427 U.S. 97, 103-04 (1976), while also
repeating the standard that "a conviction . . . must be set aside if
there is any reasonable likelihood that the false testimony could have
affected the judgment of the jury," id. at 103. In United States v.
Bagley, 473 U.S. 667 (1985), the Court noted that this rule had earlier
been stated as a branch of the harmless error test, but it may be as
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easily stated as a materiality standard. See 473 U.S. at 679. And
recent decisions about Brady errors which did not involve knowing use
of perjured materials continue to recognize that such errors are
properly analyzed under Brady, employing the "reasonable likelihood" of
acquittal standard. See Strickler, 527 U.S. at 298-99 (Souter, J.,
concurring in part and dissenting in part); Kyles, 514 U.S. at 433 n.7
(citing Agurs, 427 U.S. at 103).
In sum, a court's choice among the standards for analyzing
new trial motions depends upon the ground for the new trial motion.
First, for the non-Brady Rule 33 motion where a defendant seeks a new
trial based on newly discovered evidence (other than evidence that an
adverse witness testified falsely) the inquiry is whether that evidence
(assuming it meets the first three prongs of the Wright test, see
supra) in actual probability would result in acquittal if a new trial
were granted. That test is also used where a new trial motion is
premised upon alleged new evidence that a conviction was obtained by
perjured testimony when the government's use of that testimony was
unwitting. In that situation, Huddleston requires the defendant to
meet the "actual probability of acquittal" standard.
The second category involves the different types of Brady
violation cases, where it is alleged that the government withheld
exculpatory evidence. There, a defendant must show that there is a
"reasonable probability" that the missing evidence would have changed
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the result. In contrast, the "reasonable likelihood that the false
testimony could have affected the judgment of the jury" standard
applies where it is alleged that the government knowingly used perjured
testimony to obtain a defendant's conviction. Although the Supreme
Court has not described whether there is a difference between the
"reasonable likelihood" and "reasonable probability" standards, we
believe they are equivalent. In the end, both standards are concerned
with whether defendants received a fair trial resulting in a verdict
worthy of confidence. See Strickler, 527 U.S. at 298 (concurring
opinion); see also Webster's Third New Int'l Dictionary 1310 (1993)
(defining "likelihood" as "probability"). As Strickler explains, not
every violation by prosecutors of their duty to pursue truth
"necessarily establishes that the outcome was unjust." 527 U.S. at
281.
We turn to the merits of González's new trial motion.
B. The Alleged Perjured Testimony
1. Testimony of Luz Marina Giraldo
As to Giraldo's testimony, González raises at least a
colorable claim that, if her testimony was perjured, then the
government presented testimony it knew to be perjured.1 González
1 A finding that there is a colorable claim the government
knowingly used perjured testimony is the necessary predicate for asking
whether the Strickler/Kyle/Bagley standard applies. Here, the district
court did not make an express finding about whether Giraldo's testimony
was perjured, and thus did not find whether the government's use of the
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offered the sworn statement of a co-inmate, Daniel Ortiz Medina, that
Medina had overheard Giraldo telling González that the prosecutor had
pressured her to testify to details about González's involvement in
drug trafficking, even though that testimony was false, and that the
prosecutor told Giraldo that she would receive twenty-five years in
prison if she refused to so testify but would receive only a five year
sentence if she cooperated. The matter of perjury is not a matter of
inference. Rather, the material witness herself is reported to have
said that she was pressured by the government to give false testimony.
An affidavit from a second inmate, Ernesto Padilla Almestica, recounted
the same conversation.
Because González makes a colorable claim that the government
knowingly used perjured testimony by Giraldo, we apply the
Strickler/Kyle/Bagley standard and ask whether there is any reasonable
likelihood or probability that the proffered evidence that Giraldo's
testimony was false could have affected the jury's judgment. We think
not. First, the evidence of perjury is itself weak; it depends on a)
the credibility of two convicted felons, and b) believing that Giraldo,
testimony, if perjured, was knowing. (We have been informed that
Giraldo had been deported by the time of the new trial motion and was
unavailable to the court.) Instead the court concluded that González
failed to show that there was a "reasonable probability" that Giraldo's
testimony would result in acquittal. Thus, we cannot avoid the
question. Cf. Josleyn, 206 F.3d at 155 n.11 (where the district court
expressly finds that a defendant has not shown the statements to be
perjury, court need not further consider application of lower
standard).
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having to face González after he was convicted, was not simply making
excuses based on a fiction.
Second, the sheer volume of evidence of González's drug
trafficking and money laundering activities rules out any reasonable
likelihood that the jury's ultimate decision was affected by Giraldo's
testimony. This was not a close case. Several members of González's
organization besides Giraldo testified about numerous occasions during
1991 and 1994 on which González imported drugs from Colombia into
Puerto Rico and directed the distribution of those drugs in Puerto Rico
and New York. Numerous law enforcement agents corroborated specific
events of these drug importation and distribution activities.
Moreover, González's guilt was supported by documentary evidence and
out of his own mouth; there were tape recordings of González making
inculpatory statements about his drug trafficking and money laundering
activities. We also note that Giraldo's alleged recantation indicates
that she lied about González's importation of cocaine, but that she
was, indeed, involved in González's marijuana trafficking activities;
thus, the damage done by Giraldo's purportedly false testimony is
limited to the effect of her testimony about the extent of González's
activities, and does not put into doubt that González was in fact
involved in drug trafficking. Viewing the evidence as a whole
(including the other Brady errors discussed later), there is no
reasonable likelihood or probability that false testimony, if any, by
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Giraldo caused the jury to reach an outcome that it might not otherwise
have reached.
2. Testimony of Roberto Garraton
We analyze González's new trial motion based on newly
discovered evidence of allegedly perjured testimony by Garraton under
the traditional Rule 33 "probability of acquittal" standard, as
González does not raise any colorable claim that the government knew
Garraton's testimony to be false, assuming it was false. No inference
of government knowledge of perjury arises from the mere fact of a
convict's hearsay report that a material witness recanted testimony.
The district court cited two infirmities in González's claim.
First, the court "viewed with considerable skepticism" González's
evidence of Garraton's recantations, which consisted of affidavits by
an inmate to whom Garraton allegedly confessed his perjury. More
important, the court doubted Garraton's recantation because his
testimony as to González's role in the drug trafficking conspiracy was
corroborated by other trial witnesses, including law enforcement
officers, and by documentary evidence.
The substantial amount of evidence supporting González's
conviction described above, apart from the testimony of Garraton, means
we cannot say that the district court manifestly abused its discretion
in denying González's motion for a new trial on the basis of evidence
that Garraton testified falsely at González's trial. The district
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court has "broad power to weigh the evidence and assess the credibility
of both the witness who testified at trial and those whose testimony
constitutes 'new' evidence." United States v. Montilla-Rivera, 115
F.3d 1060, 1067 (1st Cir. 1997) (quoting Wright, 625 F.2d at 1019).
González argues that the court, at least, should have held
a hearing on the question whether the witnesses' testimony was false.
But in similar circumstances, we have said that a hearing on post-
conviction motions is not necessary where a defendant's claim is
"conclusively refuted as to the alleged facts by the files and records
of the case." United States v. Carbone, 880 F.2d 1500, 1502 (1st Cir.
1989) (internal quotation marks omitted).2 Here, as the district court
found, ample evidence supports the jury's verdict, and so González has
failed to show that the alleged new evidence of perjury, under either
standard, warrants a new trial.
C. The Alleged Withholding of Evidence/Prosecutorial Misconduct
González's alternative theory in support of his motion for
a new trial is that the government failed to disclose the extent of
Giraldo's cooperation with prosecutors in a case in the Southern
2 We also note that González waited to file his motion until
one of the alleged perjurers was no longer within the reach of the
court. It appears that the conversations reported were shortly after
the 1996 trial, but no motion was filed until June of 1999, three years
after trial. (This was also over a year after this court affirmed
González's conviction in his appeal from an earlier unsuccessful new
trial motion, which was based on, inter alia, faulty jury instructions.
See United States v. González-González, 136 F.3d 6 (1st Cir. 1998)).
González is in a poor position to complain about a lack of a hearing.
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District of Florida, violating its obligations under Brady to produce
to defendants exculpatory and impeachment evidence in its possession.
See Brady, 373 U.S. at 87; see also Bagley, 473 U.S. at 676; Josleyn,
206 F.3d at 151. González also charges the prosecution with misconduct
based on inaccurate statements made to the district court about
Giraldo's cooperation.
The record in this case as to the government's conduct,
dubious perjury allegations aside, is not exemplary. The district
court had good reason for its assumption that the evidence withheld by
the government qualifies as Brady material. Secondly, as discussed
below, the prosecutor was either careless or made a misrepresentation
to the court.
Giraldo testified against González at his trial in February,
1996. Giraldo had entered into a proffer immunity agreement with the
Southern District of Florida United States Attorney's Office on June
29, 1995, as to her criminal conduct in Florida; she was debriefed on
June 30 and July 6, 1995, which debriefing the FBI summarized in a 302
report on July 8, 1995; and on August 22, 1996, Giraldo entered into a
cooperation/plea agreement with the government. The government did not
disclose Giraldo's proffer agreement or the FBI report,3 evidence
3 Not only did the government fail to voluntarily produce the
information to González, but also it did not produce the 302 report to
the district court (although it did, in a footnote to its reply, offer
to produce it for in camera review). Instead, the government submitted
an affidavit of an FBI agent stating that the report was limited to
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González could have used in an effort to impeach Giraldo's testimony.
Undisclosed impeachment evidence, "if powerful enough, could constitute
grounds for a new trial." United States v. Dumas, 207 F.3d 11, 16 (1st
Cir. 2000).
The question, then, is whether there is a reasonable
probability that the jury, had it known the true extent and earlier
date of Giraldo's cooperation with the government, would have reached
a different verdict. We think not. The jury knew that Giraldo was
cooperating with authorities in Florida. As the district court found,
González "thoroughly cross-examined [Giraldo] as to her cooperation
with the prosecutor's office in Miami" and her credibility was
"impeached by questioning about her expectations of lenient treatment."
United States v. González- González, 106 F. Supp. 2d 269, 275 (D.P.R.
2000). Thus, the undisclosed evidence was cumulative. Although the
FBI report should have been turned over to González, the fact that it
was not did not deprive him of a fair trial, "understood as a trial
Giraldo's debriefing relative to the Florida indictment. Inexplicably,
the government persisted in its contention that the report was not
Brady/Giglio material, and at the time of oral argument before this
court, still had refused to produce it to González, although the
government was unable to identify any reason why the report should not
be disclosed. It took an order from this court before the government
turned the report over. A criminal defendant is entitled to
exculpatory evidence, including impeachment evidence, in the
government's possession, and is not expected to take the government at
its word as to the materiality of that evidence.
Having viewed the report for ourselves, we are satisfied that
Giraldo's debriefing was limited to the Florida investigation.
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resulting in a verdict worthy of confidence." Strickler, 527 U.S. at
290 (internal quotation marks omitted).
That does not end our inquiry, however, as González also
makes a troubling charge of prosecutorial misconduct. The same
government prosecutor who on June 30, 1995, had filed a motion
notifying the court of Giraldo's scheduled debriefing, told the court
on February 7, 1996, during González's trial, that Giraldo "has not yet
been debriefed [in the Florida case] as of yet to my knowledge." Yet
at the time of this statement Giraldo had been debriefed some seven
months earlier. Moreover, González claims that the same prosecutor
failed to correct Giraldo's inaccurate testimony about the timing and
extent of her interactions with the government, which González says the
prosecutor knew to be false.
González's complaint is not frivolous; the prosecution, at
the least, was careless. But the remedy of a new trial is not
necessarily in order whenever a court finds misconduct. "The
determination of whether prosecutorial misconduct has so poisoned the
well that a new trial is required involves the weighing of several
factors: (1) the severity of the misconduct; (2) the context in which
it occurred; (3) whether the judge gave any curative instructions and
the likely effect of such instructions; and (4) the strength of the
evidence against the defendant." United States v. Rodriguez-De Jesus,
202 F.3d 482, 485 (1st Cir. 2000) (internal quotation marks and
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citations omitted). Taking a "balanced view of the evidence in the
record," id., we think that the misinformation about the extent and
timing of Giraldo's cooperation, which at best would have provided
further impeachment evidence, did not deprive González of a fair trial
given the volume of evidence in support of his conviction.
The denial of González's motion for a new trial is affirmed.
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